People v. Mickel

Filed 12/19/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S133510
v. )
)
ANDREW HAMPTON MICKEL, )
) Tehama County
Defendant and Appellant. ) Super. Ct. No. CR45115
____________________________________)

On April 5, 2005, a jury convicted defendant Andrew Hampton Mickel of
the first degree murder of Officer David Mobilio (Pen. Code, § 187),1 and also
found that Mobilio was a peace officer killed while engaged in the performance of
his duties (§ 190.2, subd. (a)(7)). Three days later, the jury returned a verdict of
death. The trial court automatically reviewed the verdict (§ 190.4, subd. (e)),
declined to modify it, and sentenced defendant to death.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
its entirety.

1 All further statutory references are to the Penal Code unless otherwise
indicated.

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 I. BACKGROUND

A. Guilt Phase

1. Prosecution Evidence
Defendant was a resident of Olympia, Washington. In October 2002,
defendant purchased a Sig Sauer P229 .40-caliber handgun from Larry‘s Gun
Shop in Olympia. Defendant also purchased several boxes of hollow-point
bullets.
On November 17 of that year, a Tehama County deputy sheriff, while on
duty, observed a maroon 1990 Ford Mustang with Washington state license plates.
The deputy ran the plates through his patrol car computer because the vehicle
―seemed out of place‖ and had ―immediately turned‖ after the deputy pulled up in
his patrol car behind the vehicle.
At about 6 p.m. the next evening, two witnesses drove to Red Bluff,
California, located in Tehama County, for recreational off-road driving in the
vicinity. The witnesses saw a maroon or red Ford Mustang parked off
Breckenridge Road, approximately 300 to 400 yards from Warner‘s Petroleum in
Red Bluff. The vehicle‘s front license plate was covered with a sheet secured with
zipties, and the windows were fogged up. The two witnesses saw a person inside
of the car, whom they described as looking startled and nervous. The Mustang
remained parked when the two witnesses left the area approximately 20 minutes
later.
On November 19, 2002, Red Bluff Police Officer David Mobilio was
working patrol on the overnight shift. Around 1:27 a.m., Mobilio went to
Warner‘s Petroleum to refuel his patrol car. Around 1:40 a.m., a dispatcher
conducted a status check on Mobilio, but received no response. Another officer,
Sergeant Ted Wiley, drove to Warner‘s Petroleum to check on Mobilio. Wiley

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observed a patrol car parked by the gas pumps and Mobilio lying face-down at the
north end of the pumps. Wiley did not see anyone else in the vicinity. After
calling for assistance, Wiley approached Mobilio‘s body and saw a large circular
wound to the back of the head. Next to Mobilio‘s body, Wiley saw an object that
he thought was a piece of cardboard or paper that had some writing on it, as well
as a drawing of a snake. The object, a homemade flag, had the phrase ―This Is A
Political Action. Don‘t Tread On Us‖ written below the image of a snake.
At 2 a.m., Red Bluff Fire Department Engineer Domenic Catona was
dispatched to Warner‘s Petroleum. When Catona came closer to Officer Mobilio‘s
body, he observed one bullet wound to the back of the head and another bullet
wound just below the shoulder blades. On the ground directly to the left of
Mobilio‘s body, Catona saw a three-foot cloth. The paramedic who examined
Mobilio pronounced him dead at the scene. An autopsy later revealed that
Mobilio had been shot three times from a distance of at least three to four feet.
The forensic pathologist opined that the final shot was to the back of Mobilio‘s
head, while he was lying face-down on the ground.
Later the same day, around 1 p.m., Alice Lay –– who lived on her ranch in
southeastern Oregon –– learned of a car wreck on the road near her ranch. Lay
and her son, Wilson, went to flag the wreck, as the accident was on a blind curve.
When they arrived at the wreck, the Lays saw defendant standing by a small fire
near the overturned vehicle. The vehicle did not have any license plates on it, and
defendant had a bloody face. Wilson also observed empty shell casings on the
ground, which he believed appeared to be .40-caliber or 9-millimeter.
Defendant acted a ―little bit nervous‖ and explained that he had been
driving too quickly before the car rolled when he hit the bank of the curve. When
Alice asked defendant about the missing license plates, defendant explained he
had thrown them away because he was going to abandon the car. Defendant

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eventually located the plates. The Lays collected several of defendant‘s
belongings that he insisted he was abandoning, including a gun case and a ―brass
catcher,‖ which is designed to catch ejected rounds from a gun. Because
defendant was injured, the Lays took him back to their home and called the police
to report the wreck.
Deputy Tim Alexander from the Harney County Sherriff‘s Department in
Burns, Oregon arrived and met with defendant. Defendant introduced himself as
―Andrew McRae‖ and produced a Washington state driver‘s license. Defendant
explained how the accident occurred and that he wanted to sign over the wrecked
car and remaining belongings to the Lays. Alexander drove defendant to the
wreck to investigate and take some photographs. Alexander observed the license
plates leaning against the car, as well as tools on the ground. When Alexander
searched defendant‘s backpack before driving defendant to the nearest town,
Alexander found a loaded Sig Sauer .40-caliber handgun and a large quantity of
ammunition. Alexander ran the handgun‘s serial number through dispatch, and
the gun came back clean. After explaining to defendant that he could not take the
weapon on public transportation, Alexander drove defendant to Burns.
On November 20, 2002, defendant purchased a bus ticket in Burns, and left
the Sig Sauer handgun with an employee at the bus stop. Ballistics tests on the
gun would later reveal that it was the weapon used to kill Officer Mobilio.
Defendant then traveled to New Hampshire, where he was eventually arrested
after he contacted the media to explain his actions.
During the investigation of the crime scene at Warner‘s Petroleum,
investigators photographed and preserved tire and shoe impressions from the

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original crime scenes.2 A senior forensic scientist, Michael Barnes, later
compared photographs of defendant‘s vehicle and tires to the photographs of the
tire impressions and concluded the size and pattern were the same. Barnes
compared the shoes defendant was wearing at the time of his arrest to the shoe
impressions from Warner‘s Petroleum and nearby Breckenridge Road. Barnes
opined that defendant‘s shoe made the impression from the Breckenridge scene,
but could only conclude that the patterns were the same with respect to the
impressions from Warner‘s Petroleum.
Following defendant‘s arrest in New Hampshire, law enforcement searched
defendant‘s apartment in Olympia, Washington. They found additional
ammunition, pieces of wire and cloth, and a ―possible template‖ for the snake
image on the cloth left at the scene. While the template for the snake image had
unique edging that corresponded to the cloth flag found at Warner‘s Petroleum, it
did not match the image in size.
The police obtained DNA swabs from wire attached to the cloth flag. A
comparison of defendant‘s blood to samples taken from the DNA swabs of the
flag revealed a mixture of DNA from two individuals, which an expert concluded
was consistent with Mobilio as a minor contributor and defendant as a major
contributor. Based on the odds of the major contributor‘s DNA appearing in
unrelated individuals, the expert opined that it was very strong evidence that
defendant was the major contributor.
Finally, the prosecution offered several inculpatory statements defendant
had made in prior proceedings. These statements included: ―Your Honor, I admit
that I committed the act that resulted in Officer Mobilio‘s death,‖ and ―I have

2 At trial, a criminalist described findings from the relevant crime scenes of
Warner‘s Petroleum and the Breckenridge site.

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never denied that I killed Officer Mobilio, and I never intend to deny that. And it
will become clear to the jury, both by myself and by the prosecution, that there is
no question of that fact.‖

2. Defense
On January 30, 2003, defendant first appeared in Tehama County Superior
Court, where he stated his desire to represent himself and requested that a public
defender be appointed as co-counsel. The court appointed Attorney James
Reichle, who represented defendant through the preliminary hearing. On
December 8, 2003, the trial court granted defendant‘s motion for self-
representation. While defendant made an opening statement, he did not put on a
defense during the guilt phase. During his opening statement, defendant explained
that he ―did ambush and kill Officer David Mobilio‖ and that he ―came forward‖
to ―take[] responsibility for being the one who took Officer Mobilio‘s life.‖
Defendant conceded that the prosecution would ―have the facts [of the murder]
right,‖ but that ―they won‘t have the right interpretation for what really happened.‖
Defendant cross-examined nine of the 26 prosecution witnesses, but did not
call any witnesses of his own. Defendant had previously indicated his intent to put
on a justification defense based on the ―defense of liberty.‖ During an in camera
proceeding, the trial court concluded that the defense was not legally cognizable
and precluded defendant from introducing evidence in support of this proposed
defense. Defendant responded by stating that he would ―sit in silent protest during
the guilt phase‖ and that he would ―not speak or raise any issues until the penalty
phase.‖ Defendant gave a brief closing statement, stating that he would explain
during the penalty phase why he had killed Officer Mobilio.
The jury deliberated for approximately 45 minutes before returning a
verdict finding defendant guilty of first degree murder and finding true the special

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circumstance that David Mobilio was a peace officer who was killed while
engaged in the performance of his duties.

B. Penalty Phase
At the penalty phase, the prosecution put on victim impact testimony from
Officer Mobilio‘s family members, fellow police officers, and an elementary
school student who Mobilio had taught as part of the nationwide Drug Abuse
Resistance Education (DARE) program.
Defendant called his mother and father as witnesses to testify about the
circumstances under which they learned of defendant‘s crime. Defendant
presented testimony from a state investigator that the state could quickly retrieve
digital information about automobile licenses and gun registration, as well as
testimony from an expert in public administration regarding the existence of
systems and databases aggregating personal information about United States
citizens.
During the penalty phase, defendant also testified that he had acted out of a
sense of patriotism. Defendant ultimately presented the theory that he had killed
Officer Mobilio in order to defend constitutionally guaranteed liberties that he
believed the government was infringing, including the right to bear arms.
Defendant explained that he came to California to kill a police officer because he
wanted his actions to make a national statement. He believed California to be the
least gun-friendly state in the country, and where ―the war on drugs is fought the
hardest.‖ Defendant traveled to California in September 2002 to find a location
where he could ambush a police officer, drive back to Washington, and then fly to
New Hampshire without being arrested. He explained that he had intentionally
chosen New Hampshire as the location where he would be arrested because he
believed the New Hampshire Constitution guaranteed the right of revolution.

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 When he arrived in New Hampshire, defendant contacted his parents and
the media. When contacted by police, defendant explained that he would come
peacefully, but that he wanted to speak with a reporter to explain what he had
done. After speaking with the reporter, defendant surrendered himself to law
enforcement and was arrested.
After both sides presented their evidence during the penalty phase, they
concluded with arguments to the jury. The jury then returned a death verdict.

II. DISCUSSION

A. Issues Affecting Both Phases

1. Failure to Suspend Proceedings Prior to Trial
Defendant claims the trial court erred in failing to suspend proceedings
under section 1368 because there was substantial evidence that raised a doubt as to
defendant‘s competence to stand trial. Defendant further argues that this failure
violated his due process rights. We reject defendant‘s claim.

a. Background
As noted, after shooting Officer Mobilio and encountering the Lays and
Officer Alexander, defendant purchased a bus ticket in Burns, Oregon. Defendant
then fled to New Hampshire, where he was arrested on November 26, 2002.
Following the People‘s application for requisition, the Governor of California
formally requested defendant‘s extradition from New Hampshire to California on
December 18, 2002.
On January 8, 2003, defendant‘s counsel in New Hampshire, Mark Sisti,
filed a petition for a writ of habeas corpus in the New Hampshire Superior Court,
alleging that defendant was incompetent to stand trial and therefore could not be
extradited. According to the petition, Sisti had ―immediate concerns regarding the
Petitioner‘s ability to communicate with, and adequately assist counsel‖ and his

8
―lack of ability to understand the proceedings against him.‖ In support of the
petition, counsel referred to and attached a ―preliminary psychiatric/competency
evaluation‖ conducted by Dr. Drukteinis, where Dr. Drukteinis concluded that
defendant‘s competency was ―highly questionable because of his irrational
thinking.‖ Dr. Drukteinis had met with defendant for over two hours, reviewed
one of defendant‘s writings, and interviewed defendant‘s mother by phone. Dr.
Drukteinis noted that these were preliminary findings that would need to be
assessed after a full psychiatric evaluation, but that there was evidence that
defendant ―suffers from a mental disturbance.‖
The New Hampshire Superior Court held a hearing on defendant‘s petition
on January 14, 2003. The court then denied defendant‘s petition, concluding that
competence is not required for extradition under either New Hampshire or federal
law. The court further observed that defendant‘s ability to ―calmly and
methodically g[i]ve his account (of the murder) without any psychotic
disorganization of thought‖ supported the conclusion that defendant understood
and was capable of discussing the charges against him in California, as well as the
extradition proceedings. Defendant was then extradited to California.
When defendant first appeared in Tehama County Superior Court on
January 30, 2003, he expressed his wish to represent himself and to have a public
defender appointed as co-counsel. The court appointed James Reichle, who
subsequently stated his support for defendant‘s request to represent himself. After
the trial court explained the advantages of representation and that defendant would
not be waiving his right to self-representation during trial, defendant accepted
Reichle‘s representation through the preliminary hearing.
On April 25, 2003, defense counsel filed a motion to seal eight categories
of evidence and prevent their public disclosure during the preliminary hearing.
Among these categories was ―any mention of the extradition proceedings in New

9
Hampshire or any information presented therein, including the contents or sealing
of the Drukteinis report‖ which was allegedly ―divulged in violation of his
attorney-client and psychotherapist privileges.‖ After the People filed an
opposition indicating that they did not intend to use any of the eight categories of
documents at the preliminary hearing, the trial court denied defendant‘s motion
without prejudice.
On July 7, 2004, defendant filed a motion for change of venue, which did
not reference the Drukteinis report, but did reference former counsel Sisti‘s
―attempt[] to lay the foundations for an Insanity Defense‖ before the New
Hampshire state court. Defendant argued that Sisti had made ―dramatic,
unsubstantiated claims‖ that defendant could not identify himself, understand the
proceedings, or understand the differences among the judge, the prosecution, and
the defense.
In a filing concerning whether defendant should be physically restrained
during proceedings, the People referenced defendant‘s uncooperativeness during
his incarceration in New Hampshire. According to the People, defendant had
obstructed jail personnel and refused to dress. Defendant chose to be covered by a
blanket and made a court appearance via closed circuit video monitor in that state
of undress.

b. Legal Standard
A criminal trial of an incompetent person violates his or her federal due
process rights. (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) The state
Constitution and section 1367 similarly preclude a mentally incompetent
defendant‘s criminal trial or sentencing. (§ 1367, subd. (a) [―A person cannot be
tried or adjudged to punishment . . . [while] mentally incompetent‖]; People v.
Lightsey (2012) 54 Cal.4th 668, 691 (Lightsey).) A defendant is incompetent to

10
stand trial if the defendant lacks ―sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding . . . [or] a rational as
well as factual understanding of the proceedings against him.‖ (Dusky v. United
States (1960) 362 U.S. 402, 402 (Dusky); Lightsey, at p. 691 [―[s]tate
constitutional authority is to the same effect‖ as Dusky].)
Under section 1368, subdivision (a), a judge must state on the record any
doubt that arises in her mind as to the mental competence of the defendant, and
either seek defense counsel‘s opinion as to the defendant‘s mental competency, or
appoint counsel if the defendant is unrepresented. The decision whether to order a
competency hearing rests within the trial court‘s discretion, and may be disturbed
upon appeal ―only where a doubt as to [mental competence] may be said to appear
as a matter of law or where there is an abuse of discretion.‖ (See People v.
Pennington (1967) 66 Cal.2d 508, 518 (Pennington).) When the court is presented
with ―substantial evidence of present mental incompetence,‖ however, the
defendant is ―entitled to a section 1368 hearing as a matter of right.‖ (Ibid.) On
review, our inquiry is focused not on the subjective opinion of the trial judge, but
rather on whether there was substantial evidence raising a reasonable doubt
concerning the defendant‘s competence to stand trial. (People v. Welch (1999) 20
Cal.4th 701, 737-738.) Evidence may be substantial even where it is contested or
presented by the defense. (Lightsey, supra, 54 Cal.4th at p. 691.) A trial court
reversibly errs if it fails to hold a competency hearing when one is required under
the substantial evidence test. (See ibid.)

c. Analysis
Defendant argues first that the trial court was obligated to hold a full
competency hearing prior to trial, but failed to do so in violation of his due process
rights. According to defendant, the trial court was aware of the Drukteinis

11
evaluation, and was therefore obligated to suspend proceedings and investigate
whether defendant was competent to stand trial.
It is difficult to credit the argument that the trial court should have ordered
a competency hearing based on the Drukteinis report, when the record does not
support the conclusion that any party ever presented the report or expressly
conveyed the substance of the evaluation to the court. Defendant argues that the
trial court was made aware of the existence of the report when he moved to seal
the report. True: the motion to seal referenced ―[a]ny mention of the extradition
proceedings . . . including the contents or sealing of the Drukteinis report . . .
which defendant asserts was divulged in violation of his attorney-client and
psychotherapist privileges.‖ But this oblique reference to the Drukteinis report as
one of eight categories of evidence does not support the inference that the trial
court was made sufficiently aware of the substance of the report through the
motion to seal. There is no indication in the record that either side attached the
report as a sealed exhibit to the motion or to any responsive pleading. During the
hearing on the motion, the parties did not discuss the specific categories of
evidence, and there was no mention of the report or its contents. As the People
indicated they were not seeking to introduce any of these categories of evidence,
the parties and the trial court resolved the mooted motion in a cursory fashion.
Defendant‘s other tangential references to the Drukteinis report and to his
level of competence to stand trial are similarly vague and unavailing. That
defendant referenced Sisti‘s attempt to ―lay the foundations for an Insanity
Defense‖ in his motion for change of venue is hardly sufficient to show that the
trial court knew or should have known that defendant had been subject to a
preliminary evaluation by Dr. Drukteinis. Indeed, that reference arose in the
context of defendant arguing that his New Hampshire counsel had made

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―dramatic, unsubstantiated claims,‖ which would not signal to the trial court that
those claims were based on an expert evaluation.
Included among the media reports defendant submitted as exhibits in
support of his change of venue motion were certain references to the contents of
the Drukteinis report. A small number of these reports referenced Dr. Drukteinis‘s
preliminary evaluation, which found that defendant‘s competency to stand trial
and rationally participate in court proceedings was ―highly questionable.‖ It is
possible that, from these exhibits, the court may have become generally aware of
the report‘s existence and the preliminary conclusions included therein. But these
articles were submitted as evidence that media publicity in Tehama County could
bias jurors and prevent defendant from receiving a fair trial. Neither party drew
the court‘s attention to these articles as providing any insight into defendant‘s
competence or lack thereof. What mentions of the Drukteinis report were
contained within exhibits spanning several hundred pages, attached to a motion
unrelated to the question of defendant‘s competence. Those references did not
constitute substantial evidence of defendant‘s incompetence to stand trial. So the
court did not abuse its discretion in failing to hold a competency hearing based on
such brief, secondhand accounts of the Drukteinis report.
In his reply brief, defendant argues for the first time that the trial court
should be presumed to have acquired constructive knowledge of the contents of
the Drukteinis evaluation based on the New Hampshire state court‘s review of the
letter. Ordinarily, we do not consider arguments raised for the first time in a reply
brief. (People v. Tully (2012) 54 Cal.4th 952, 1075.) And defendant‘s argument
fails to persuade on the merits. Defendant cites no authority, nor have we found
any, for the proposition that one state‘s courts may be charged with constructive
knowledge of the record presented before another state‘s courts. Defendant relies
on agency principles applied to the prosecution and police officers when a

13
criminal defendant invokes the right to remain silent. But this sheds no light on
why a Tehama County trial court should be held to have knowledge of the entire
record made before a New Hampshire state court in a proceeding that did not bear
on the merits of the proceeding before the Tehama County court.
For substantial evidence to raise a doubt about a defendant‘s competence,
we must be able to reasonably conclude that the evidence was in fact part of the
record presented or otherwise made available to the trial court. (See, e.g., People
v. Welch, supra, 20 Cal.4th at p. 738 [noting that under Pennington, ―once the
accused has come forward with substantial evidence of incompetence to stand
trial, due process requires that a full competence hearing be held as a matter of
right‖].) We do not require a trial court to evaluate a defendant‘s competence
based on evidence not before it at the time of its decision. (Id. at p. 739.) As the
trial court was never presented with the Drukteinis report, and scattered references
to the report within the record were brief and indirect, there is no reasonable basis
to conclude that the trial court erred in failing to order a section 1368 hearing.
Whether the trial court erred in failing to order a competency hearing after
receiving additional information is discussed post.

2. Defense Counsel’s Failure to Present the Drukteinis Report on
Defendant’s Competence
Defendant claims he was deprived of his Sixth Amendment right to effective
assistance of counsel based on counsel‘s failure to inform the trial court about the
substance of Dr. Drukteinis‘ evaluation. We reject defendant‘s claim as
inappropriate to resolve on direct appeal.

a. Background
Implicitly acknowledging some of the limitations of his first claim,
defendant argues in the alternative that it was his counsel‘s ineffectiveness that
gave rise to any unawareness of the Drukteinis report on the part of the trial court.

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James Reichle represented defendant from the time of defendant‘s arraignment on
January 30, 2003, until the time the trial court granted defendant‘s motion for self-
representation on December 8, 2003. During that 10-month period, counsel
supported defendant‘s motion for self-representation and further informed the
court that it was counsel‘s opinion that there was ―no . . . evidence‖ of defendant‘s
incompetence to stand trial.

b. Legal Standard
In order to establish a claim for ineffective assistance of counsel, a
defendant must show that his or her counsel‘s performance was deficient and that
the defendant suffered prejudice as a result of such deficient performance.
(Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate
deficient performance, defendant bears the burden of showing that counsel‘s
performance ―fell below an objective standard of reasonableness . . . under
prevailing professional norms.‖ (People v. Lopez (2008) 42 Cal.4th 960, 966.) To
demonstrate prejudice, defendant bears the burden of showing a reasonable
probability that, but for counsel‘s deficient performance, the outcome of the
proceeding would have been different. (Ibid.; In re Harris (1993) 5 Cal.4th 813,
833.)
As we have observed in the past, certain practical constraints make it more
difficult to address ineffective assistance claims on direct appeal rather than in the
context of a habeas corpus proceeding. (See People v. Snow (2003) 30 Cal.4th 43,
94-95; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268 (Mendoza Tello).)
The record on appeal may not explain why counsel chose to act as he or she did.
Under those circumstances, a reviewing court has no basis on which to determine
whether counsel had a legitimate reason for making a particular decision, or

15
whether counsel‘s actions or failure to take certain actions were objectively
unreasonable. (Mendoza Tello, at pp. 267-268.)
Moreover, we begin with the presumption that counsel‘s actions fall within
the broad range of reasonableness, and afford ―great deference to counsel‘s tactical
decisions.‖ (People v. Lewis (2001) 25 Cal.4th 610, 674.) Accordingly, we have
characterized defendant‘s burden as ―difficult to carry on direct appeal,‖ as a
reviewing court will reverse a conviction based on ineffective assistance of
counsel on direct appeal only if there is affirmative evidence that counsel had ―no
rational tactical purpose‖ for an action or omission. (People v. Lucas (1995) 12
Cal.4th 415, 437.)

c. Analysis
Defendant contends that counsel‘s failure to present the Drukteinis report to
the trial court constitutes deficient performance under prevailing professional
norms. As defendant concedes, however, ineffective assistance of counsel claims
are rarely successful on direct appeal because the appellate record will often not
sufficiently reveal why defense counsel acted or failed to act on any given
occasion. (Mendoza Tello, supra, 15 Cal.4th at pp. 267-268; People v. Snow,
supra, 30 Cal.4th at pp. 94-95.)

On this record, we do not know why counsel did not bring the Drukteinis
report to the trial court‘s attention or move for a section 1368 hearing. Indeed, the

only information we have with respect to why counsel made that decision is that

counsel himself did not believe that there was substantial evidence of defendant‘s
incompetence. Counsel affirmatively supported defendant‘s request to represent

himself. Counsel even stated on the record that he believed there was no

substantial evidence of defendant‘s incompetence, and that defendant was
competent. His reasoning may have been, for example, informed by his own

16
observations and interactions with defendant, or based on investigation not

included in the appellate record. But counsel was never asked to explain his
decision or the basis of his belief in defendant‘s competence.

Defendant cites various federal and state cases holding that counsel‘s

failure to request a competency hearing constituted deficient performance. These
cases only further demonstrate the deficiency of this record on direct appeal in

revealing what information trial counsel had access to and why trial counsel made

the decisions that he did. As the People note, each one of the cases relied upon by

defendant involves either a habeas proceeding, a habeas proceeding consolidated

with a direct appeal, a personal restraint petition, or a direct appeal involving a

postconviction hearing. (See Ford v. Bowersox (8th Cir. 2001) 256 F.3d 783

[federal habeas corpus]; Speedy v. Wyrich (8th Cir. 1983) 702 F.2d 723 [federal

habeas corpus]; Kibert v. Peyton (4th Cir. 1967) 383 F.2d 566 [federal habeas

corpus]; Loe v. United States (E.D.Va. 1982) 545 F.Supp. 662 [federal habeas
corpus]; State v. Johnson (Neb.Ct.App. 1996) 551 N.W.2d 742 [postconviction

hearing]; People v. Kinder (N.Y.App.Div. 1987) 512 N.Y.S.2d 597

[postconviction hearing]; Wilcoxson v. State (Tenn.Ct.App. 1999) 22 S.W.3d 289

[postconviction hearing]; In re Fleming (Wash. 2001) 16 P.3d 610 [personal

restraint petition]; State v. Johnson (Wis. 1986) 395 N.W.2d 176 [postconviction

hearing].) Unlike the cases defendant cites, here the record is silent as to what

investigation or inquiry counsel made into defendant‘s competence, or why

counsel concluded there was no substantial evidence raising a doubt as to

defendant‘s competence.
Defendant‘s argument may amount to a claim that trial counsel should be
found ineffective as a matter of law for failing to request a competency hearing

17
regardless of whether or not there was substantial evidence raising a doubt as to
competence. Yet this argument is unpersuasive. Counsel is not ineffective for
failing to raise the issue of competence where there may be some evidence raising
a doubt, but that evidence is not substantial. (People v. Rodrigues (1994) 8
Cal.4th 1060, 1111-1112; cf. People v. Lewis (2006) 39 Cal.4th 970, 1047
[―Evidence is not substantial enough to mandate a mental competence hearing
unless it raises a reasonable doubt on the issue‖].)
The record does not reveal why counsel chose not to pursue a section 1368
hearing or otherwise present the Drukteinis report to the trial court. As defendant
has failed to show affirmative evidence that counsel could have had ―no rational
tactical purpose‖ for these decisions, defendant has not demonstrated
constitutionally deficient performance on this record. (See People v. Lucas, supra,
12 Cal.4th at p. 437.) Under these circumstances, it would be inappropriate for us
to address defendant‘s ineffectiveness claim on direct appeal. (See People v.
Lewis, supra, 25 Cal.4th at pp. 674-675.)

3. Failure to Suspend Proceedings Prior to Judgment
In addition to claiming that the trial court had substantial evidence of
defendant‘s incompetence prior to trial, defendant contends that the trial court
became aware of additional evidence of his incompetence after the preliminary
hearing, requiring the trial court to suspend proceedings and hold a competency
hearing. Defendant argues that the trial court‘s failure to do so violated his due
process rights. For the reasons discussed below, defendant‘s claim fails.

a. Background
At the guilt phase, defendant was precluded from presenting his legally
invalid ―liberty defense‖ to first degree murder. In response to the trial court‘s
order preventing him from presenting the defense of liberty as a justification of

18
murder, the trial court observed that defendant became ―very emotional‖ as he
responded that he would ―sit in silent protest during the guilt phase and . . . not
speak or raise any issues until the penalty phase.‖ While defendant cross-
examined several prosecution witnesses and gave both an opening and closing
statement, he did not otherwise put on a defense during the guilt phase. At the
penalty phase, defendant testified to explain that his actions were motivated by a
sense of patriotism, and that he had consequently killed Officer Mobilio in order to
defend constitutionally guaranteed liberties that he believed the government was
infringing.
On April 27, 2005, after the jury had returned the guilt and penalty verdicts,
the trial court conducted proceedings on the automatic motion to modify the
judgment under section 190.4. (§ 190.4, subd. (e).) The trial court denied the
motion in a written statement of reasons. In denying the section 190.4 motion, the
trial court declined to consider letters from defendant‘s family and friends or the
probation report because the trial court believed it was only entitled to review
evidence presented to the jury. After issuing its decision on the section 190.4
motion, the trial court read the letters and probation report.
Defendant‘s mother, Karen Mickel, submitted a character reference letter
for her son. In her letter, defendant‘s mother expressed her belief that defendant
had ―a mental illness‖ and referred to reports by ―two psychiatrists‖ who had
apparently assessed defendant after he killed Officer Mobilio. One psychiatrist
had given Karen a ―verbal diagnosis‖ that defendant ―suffered from a psychosis.‖
A second psychiatrist came to a similar conclusion, but did so ―[b]efore the entire
assessment was completed,‖ and informed Karen that ―he needed more time to be
able to completely delineate the exact form.‖ Defendant‘s father, Stanley Mickel,
also submitted a letter describing defendant‘s ―growing mental illness.‖ Other
letters from defendant‘s friends and family described defendant as ―crazy,‖ ―very

19
sick,‖ ―very confused and disturbed,‖ and referenced defendant‘s prior treatment
by psychologists.

b. Legal Standard
Section 190.4, subdivision (e), provides for an automatic application to
modify the verdict in every case in which the jury has returned a verdict imposing
death. In ruling on such a motion, the trial court must independently reweigh the
evidence of aggravating and mitigating circumstances, and exercise its
independent judgment to determine whether the weight of the evidence supports
the jury‘s verdict. (People v. Cunningham (2015) 61 Cal.4th 609, 669.)
As noted above, section 1368, subdivision (a) provides, in relevant part,
that ―[i]f, during the pendency of an action and prior to judgment . . . a doubt
arises in the mind of the judge as to the mental competence of the defendant,‖ the
trial court must suspend proceedings to determine the defendant‘s competence.
(Pennington, supra, 66 Cal.2d at p. 521.) A defendant is incompetent to stand trial
if the defendant lacks ―sufficient present ability to consult with his [or her] lawyer
with a reasonable degree of rational understanding . . . [or] a rational as well as
factual understanding of the proceedings against him [or her].‖ (Dusky, supra,
362 U.S. at p. 402.) Because the decision whether to order a competency hearing
―is for the discretion of the trial judge,‖ we will not reverse it on appeal unless ―a
doubt as to [mental competence] may be said to appear as a matter of law or where
there is an abuse of discretion.‖ (Pennington, at p. 518.) Only where the court is
presented with substantial evidence of mental incompetence is a defendant
―entitled to a section 1368 hearing as a matter of right.‖ (Ibid.)

c. Analysis
In deciding defendant‘s automatic motion to modify the verdict under
section 190.4, the trial court limited its review to evidence actually presented ––

20
and it was right to do so. (People v. Lewis (2004) 33 Cal.4th 214, 230 [― ‗[T]he
court may review only evidence that was presented to the jury‘ ‖ in § 190.4, subd.
(e) hearing]; People v. Cooper (1991) 53 Cal.3d 771, 849 [trial court correctly
declined to hear statements by victims‘ relatives before ruling on modification
motion].) The trial court therefore properly refused to consider the letters
submitted by defendant‘s friends and family in advance of deciding the automatic
motion to modify the judgment.
Defendant contends, however, that the trial court‘s failure to consider the
letters from defendant‘s family members and friends also violated his due process
rights. The due process violation, he claims, occurred because these letters
provided additional evidence of defendant‘s incompetence, which required the
court to suspend proceedings at that point. Defendant‘s friends and family sought
leniency for defendant, and described him as ―crazy‖ and ―very disturbed.‖
To raise a doubt under the substantial evidence test, we require more than
―mere bizarre actions‖ or statements, or even expert testimony that a defendant is
psychopathic, homicidal, or a danger to him- or herself and others. (People v.
Laudermilk (1967) 67 Cal.2d 272, 285 (Laudermilk); People v. Jensen (1954) 43
Cal.2d 572, 579.) Rather, the focus of the competence inquiry is on a defendant‘s
understanding of the criminal proceedings against him or her and the ability to
consult with counsel or otherwise assist in his or her defense. (See Dusky, supra,
362 U.S. at p. 402.) Defendant‘s trial demeanor is relevant to, but not dispositive
of, the question whether the trial court should have suspended proceedings under
section 1368. (See Pate v. Robinson (1966) 383 U.S. 375, 386 [―While
Robinson‘s demeanor at trial might be relevant to the ultimate decision as to his
[competence to stand trial], it cannot be relied upon to dispense with a hearing on
that very issue‖].) In assessing whether the trial court erred in failing to suspend

21
proceedings, we consider all evidence related to defendant‘s competence of which
the trial court had become aware before it entered judgment.
The court was indeed informed of evidence demonstrating defendant‘s
erratic behavior. The motion for change of venue stated that former counsel Sisti
had attempted ―to lay the foundations for an Insanity Defense‖ before the New
Hampshire state court, though defendant himself characterized Sisti‘s claims about
his competence as ―dramatic‖ and ―unsubstantiated.‖ In a filing concerning
whether defendant should be physically restrained during proceedings, the People
referenced defendant‘s uncooperativeness during his incarceration in New
Hampshire, including the fact that he refused to dress and chose to cover himself
with a blanket to make a court appearance via closed circuit monitor. Defendant
sought to justify the killing of Officer Mobilio as a ―necessary‖ exercise of his
―right to defend liberty‖ and attempted to claim corporate immunity based on his
decision to register as a corporation. When the court decided that defendant could
not present his liberty justification, defendant became ―very emotional‖ and opted,
―in protest,‖ not to present any evidence for his case during the guilt phase.
Defendant‘s bizarre behavior and his unconventional trial demeanor pertain to his
competence, but they are not dispositive.
The record of trial proceedings shows that defendant understood the nature
and purpose of the proceedings and was capable of assisting in his own defense.
Defendant submitted well-researched legal briefs, argued motions, and cross-
examined witnesses. A few months after his initial appearance in court, defendant
represented that he had ―undertaken extensive and diligent study to become more
familiar with the criminal trial process.‖ Defendant later filed a 15-page
memorandum of points and authorities in support of his request for self-
representation, where he cited relevant legal authority and made logical

22
arguments. There is also no evidence in the record that defendant failed to
cooperate with Reichle while he served as defense counsel or as advisory counsel.
And the letters and probation report, read by the court after a verdict was
rendered, do not provide further evidence raising a doubt as to competence. The
letters from family and friends claimed, among other things, that defendant had
been assessed by psychiatrists, and he was ―crazy‖ or ―very confused and
disturbed.‖ Revealing though these letters might be of the extent of concern
among defendant‘s family or friends, they convey little about defendant‘s
competence to stand trial. Such letters did not speak to defendant‘s ability to
understand the proceedings or assist in his defense. At best, these letters reflect
generalized concerns that defendant suffered from depression or a psychosis, but
they do not show that defendant was, as a result of his mental illness, unable to
understand the nature and purpose of the criminal proceedings against him or
conduct his defense. (See Laudermilk, supra, 67 Cal.2d at p. 285; see also People
v. Halvorsen (2007) 42 Cal.4th 379, 403 [statements by expert that defendant
suffered from mental illness and exhibited erratic and psychotic behavior not
substantial evidence of incompetence]; People v. Blair (2005) 36 Cal.4th 686, 714
(Blair) [―even a history of serious mental illness does not necessarily constitute
substantial evidence of incompetence that would require a court to declare a
doubt‖].) Defendant relies on references to a ―verbal diagnosis‖ of a psychosis
and an incomplete assessment reaching a similar conclusion by two psychiatrists
in his mother‘s letter but, again, those claims offer little insight into whether
defendant lacked the ability to understand the proceedings against him or
otherwise participate in and conduct his defense. (See Laudermilk, at p. 282.) Nor
does the probation report support defendant‘s argument. That report concludes
that ―[n]othing in [defendant‘s] background suggests a serious moral or emotional

23
weakness of character. There is no indication of instability; he speaks with utter
clarity about what he did and why.‖
The evidence before the trial court, in short, did not amount to substantial
evidence requiring the court to suspend proceedings prior to entering judgment.
Because of this, we cannot conclude that the court abused its discretion by failing
to declare a doubt as to defendant‘s competence and order a hearing. We therefore
reject defendant‘s claim.

4. Deprivation of the Right to Counsel
Defendant argues that the trial court erred in allowing him to waive his
constitutional right to counsel because defendant was incompetent to do so. More
specifically, defendant contends that under Indiana v. Edwards (2008) 554 U.S.
164 (Edwards), California may impose requirements beyond Faretta v. California
(1975) 422 U.S. 806 (Faretta), and that California has done so. For the reasons
discussed below, we reject defendant‘s claim.

a. Background
Defendant expressed his desire to represent himself during his first
appearance in the trial court. After being informed that his acceptance of
counsel‘s representation during the preliminary hearing would not constitute
waiver of his right to represent himself during trial, defendant accepted
representation on February 4, 2003.
On April 7, 2003, counsel filed a motion requesting an opportunity for
defendant to personally address the court during the preliminary hearing and
explain the ―legal basis and nature of his affirmative defense.‖ Following a
response by the People, the court held a hearing on the motion. During the
hearing, defense counsel explained that while defendant ―admitted [to] doing the
act,‖ defendant wanted an opportunity to justify his action of killing Officer

24
Mobilio. Defense counsel explained that there was ―obviously no case or jury
instruction for a justification in this case,‖ but that defendant wished to explain his
actions to the court during the preliminary hearing. The trial court denied the
motion, citing the potentially prejudicial publicity and absence of any entitlement
to put forth such a justification during the preliminary hearing.
On November 20, 2003, defendant, through counsel, filed a motion seeking
self-representation. Defendant personally prepared a memorandum of points and
authorities in support of his motion. Citing relevant legal authority, defendant
requested that he be allowed to represent himself and that Reichle be appointed as
advisory counsel. Reichle also filed a brief in support of defendant‘s motion. The
People‘s response did not oppose defendant‘s request for self-representation, but
argued that defendant‘s demonstrated legal capabilities obviated the need for
advisory counsel.3 At the hearing on the motion, the trial court engaged in a
Faretta colloquy with defendant. The court verified that defendant had read,
understood, and signed the written Faretta waiver. It then concluded on the
record that defendant had knowingly and intelligently waived his right to counsel.
The court granted defendant‘s motion and appointed Reichle as advisory counsel.

b. Legal Standard
A defendant has a federal constitutional right to the assistance of counsel
during all critical stages of a criminal prosecution. (Faretta, supra, 422 U.S. at p.
807; United States v. Wade (1967) 388 U.S. 218, 223-227.) A defendant may also
waive this right and personally represent him- or herself, so long as the
defendant‘s waiver of the right to counsel is valid. A valid waiver requires that the

3 Notwithstanding the People‘s position in their response, the prosecution did
argue in favor of appointing standby counsel.

25
defendant possess the mental capacity to comprehend the nature and object of the
proceedings against him or her, and that the defendant waive the right knowingly
and voluntarily. (People v. Koontz (2002) 27 Cal.4th 1041, 1069 (Koontz).) If a
defendant has validly waived the right to counsel, a trial court must grant a
defendant‘s request for self-representation. (People v. Welch, supra, 20 Cal.4th at
p. 729.) We review a Faretta waiver de novo, and examine the entire record to
determine the validity of a defendant‘s waiver of the right to counsel. (Koontz, at
p. 1070.)

c. Analysis
Defendant argues the trial court erred in permitting him to represent himself
without determining whether defendant was sufficiently competent to conduct his
own defense. According to defendant, the evolution of California and federal case
law on the intersection of competence and the right of self-representation requires
that California courts apply the highest standards of competence consistent with
federal law, i.e., that a defendant understand ―the nature of the charges and the
available defenses.‖
We begin with established principles. There is no dispute that the right of
self-representation is not absolute. (Edwards, supra, 554 U.S. at p. 171.) The
autonomy and dignity interests underlying our willingness to recognize the right of
self-representation may be outweighed, on occasion, by countervailing
considerations of justice and the state‘s interest in efficiency. (See, e.g., ibid.;
Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152,
163 [no right of self-representation on direct appeal]; McKaskle v. Wiggins (1984)
465 U.S. 168, 178-179 [appointment of standby counsel against defendant‘s
wishes is permissible].) What we have declined to find is that a defendant‘s
autonomy and dignity interests are outweighed as a matter of law whenever the

26
criminal trial happens to be a capital one. (People v. Taylor (2009) 47 Cal.4th
850, 865 (Taylor).) This is so even where a self-represented defendant chooses a
strategy seeking death rather than life imprisonment without the possibility of
parole, as an individual could rationally prefer the death penalty. (Ibid.) We have
also rejected claims that the fact or likelihood that an unskilled, self-represented
defendant will perform poorly in conducting his or her own defense must defeat
the Faretta right.
Accordingly, the critical question is not whether a self-represented
defendant meets the standards of an attorney, or even whether a defendant is
capable of conducting an effective defense. Instead, we have accepted that the
cost of recognizing a criminal defendant‘s right to self-representation may result
― ‗in detriment to the defendant, if not outright unfairness.‘ ‖ (Taylor, supra, 47
Cal.4th at p. 866, quoting Blair, supra, 36 Cal.4th at p. 739.) But that is a cost that
we allow defendants the choice of paying, if they can do so knowingly and
voluntarily.
Both the high court and this court have further elucidated the limitations
that competence may impose on the scope of the self-representation right. Until
the high court‘s decision in Edwards, California courts had generally held that the
standards for competence to stand trial and competence to represent oneself were
identical. (See Taylor, supra, 47 Cal.4th at p. 874.) In Edwards, the high court
addressed ―gray-area defendants,‖ i.e., those defendants who satisfy the Dusky
standard for competence to stand trial, but because of severe mental illness are not
capable of conducting trial proceedings on their own. (Edwards, supra, 554 U.S.
at pp. 175-176 [―an individual may well be able to satisfy Dusky‘s mental
competence standard, for he will be able to work with counsel at trial, yet at the
same time . . . may be unable to carry out the basic tasks needed to present [a]
defense without the help of counsel‖].) While the high court had previously held

27
that a state may permit a gray-area defendant to represent him- or herself (see
Godinez v. Moran (1993) 509 U.S. 389, 402), it was not until Edwards that the
high court clarified that a state may also limit a defendant‘s right to self-
representation by requiring more than mere competency to stand trial (Edwards, at
p. 174). The Edwards court declined to adopt a more specific standard for
determining a defendant‘s competency to represent him- or herself. (Id. at p. 178.)
Taking up the question Edwards left unresolved, we held in Johnson that
— consistent with California law — trial courts may deny self-representation as
permitted under Edwards. (People v. Johnson (2012) 53 Cal.4th 519, 528
(Johnson).) As did the high court, we declined to adopt a more specific standard
for competency in the self-representation context, and instead concluded that the
appropriate standard is ―whether the defendant suffers from a severe mental illness
to the point where he or she cannot carry out the basic tasks needed to present the
defense without the help of counsel.‖ (Id. at p. 530.) In adopting the Edwards
formulation, we rejected calls to adopt more specific standards articulated by the
People, various amici curiae, lower court decisions, and law review articles.4 (Id.

4 ―The Attorney General suggest[ed] the ‗standard could be as simple as
determining whether the defendant can conceive of a defense and coherently
communicate it to the judge and jury.‘ ‖ (Johnson, supra, 53 Cal.4th at p. 529.)
Some amici curiae suggested we ―return to . . . the pre-Faretta standard in
California ‗requiring that a defendant who wishes to represent himself demonstrate
an understanding of the charges, defenses and punishments, and an ability to
rationally communicate.‘ ‖ (Ibid.)
Still others called for adoption of the test for ― ‗cognitive and
communicative skills,‘ ‖ first articulated in People v. Burnett (1987) 188
Cal.App.3d 1314 and repeated in Taylor, which looked at whether a defendant:
― ‗ ―(1) possesses a reasonably accurate awareness of his [or her] situation,
including not simply an appreciation of the charges against him [or her] and the
range and nature of possible penalties, but also his [or her] own physical or mental
infirmities, if any; (2) is able to understand and use relevant information rationally
in order to fashion a response to the charges; and (3) can coherently communicate
(footnote continued on next page)

28
at p. 529.) While other, more specific standards were plausible, we reaffirmed the
basic principle articulated in Edwards: state courts may only exercise the
discretion to deny self-representation based on a defendant‘s mental state as
permitted under Edwards. (Id. at 530.)
Here, defendant argues once more that we should adopt a more specific
standard for competence to waive the right to counsel. Defendant observes that
our pre-Faretta case law required that a defendant not only understand the nature
of the criminal proceedings against him or her, but also the nature of the charge,
the elements of the offense, the available pleas and defenses, and the range of
possible punishments. (In re Johnson (1976) 62 Cal.2d 325, 335.) True, but our
pre-Faretta case law cannot be indiscriminately imported into a post-Faretta
world. As we concluded in Johnson, California courts may only exercise the
discretion permitted under Edwards, not the discretion our pre-Faretta case law
reflected. (Johnson, supra, 53 Cal.4th at p. 530.) We came to that conclusion
while rejecting suggestions that we adopt the very same standard which defendant
now advocates. (Id. at pp. 529-530.) Under Edwards, a trial court may exercise
its discretion to deny self-representation where a defendant suffers from a severe
mental illness such that he or she is unable to perform the basic tasks necessary to
present a defense. (Johnson, at p. 530; Edwards, supra, 554 U.S. at pp. 175-176.)

(footnote continued from previous page)

that response to the trier of fact.‖ [Citation.]‘ ‖ (Johnson, supra, 53 Cal.4th at p.
529, quoting Taylor, supra, 47 Cal.4th at p. 873.) Contrary to defendant‘s
argument, we noted that while trial courts and experts may consider these factors,
we did not hold that trial courts must consider these factors in exercising their
discretion to deny self-representation. (Johnson, at p. 530.)

29
 What defendant contends here is that there was substantial evidence that he
was incapable of presenting a defense without the assistance of counsel.
Defendant cites the Drukteinis report, his theory concerning his liberty
justification, and his emotional reaction to the trial court‘s exclusion of the defense
as sufficient indicia of defendant‘s incompetence to require the trial court to deny
defendant‘s request for self-representation. But a trial court is not required to
―routinely inquire‖ into a defendant‘s mental competence when evaluating a
Faretta motion. (Johnson, supra, 53 Cal.4th at pp. 530-531.) Indeed, a trial court
need only do so where it has doubts about the defendant‘s competence, and for the
reasons discussed ante, the trial court here had little reason to doubt defendant‘s
mental competence.
In the instant case, the record reflects that defendant demonstrated his
capability to undertake the basic tasks necessary to represent himself, and that the
trial court had no reason to doubt defendant‘s skill and ability to do so. Defendant
was cooperative, respectful, and articulate during courtroom proceedings. He filed
motions citing relevant legal authority that he applied to the specific facts at hand,
made organized and internally consistent arguments, and was able to effectively
communicate his arguments to the trial court in written and oral form. Defendant
demonstrated the ability to understand courtroom proceedings and apply rules of
procedure. During the pretrial and trial proceedings, defendant moved for and
won a motion to change venue, challenged two jurors for cause after engaging in
voir dire, exercised a peremptory challenge, gave opening and closing statements,
and cross-examined witnesses. There is ample evidence throughout the record that
defendant was capable of undertaking the types of basic trial tasks the high court
identified as relevant to the competence inquiry. (Edwards, supra, 554 U.S. at pp.
175-176, citing McKaskle v. Wiggins, supra, 465 U.S. at p. 174 [―basic tasks‖
include ―organization of defense, making motions, arguing points of law,

30
participating in voir dire, questioning witnesses, and addressing the court and
jury‖].)
The trial judge had the benefit of observing and interacting with defendant.
The court indicated on multiple occasions that it was extremely impressed with
defendant‘s competence and skill in representing himself and that defendant was
―very articulate, [and] very well prepared.‖ And while the trial court correctly
concluded that defendant‘s political theories could not serve as a valid legal
defense, the mere fact that defendant held fringe political beliefs that inspired his
murder of a police officer does not render him incompetent to represent himself.
And defendant‘s decision to present no defense — though ill-advised — was a
valid exercise of his right to control his defense. (See People v. Clark (1990) 50
Cal.3d 583, 617 [―The defendant has the right to present no defense and to take the
stand and both confess guilt and request imposition of the death penalty‖].)
In sum, defendant‘s conduct demonstrated he was capable of performing
the basic tasks of self-representation. We reject defendant‘s claim that the trial
court erroneously deprived him of his Sixth Amendment right to counsel.

5. Violation of Penal Code Section 686.1
Defendant argues that the trial court erred under section 686.1 by failing to
revoke his self-representation during the penalty phase. We conclude there was no
error.
Section 686.1 requires defendants in capital cases to be represented by
counsel during all stages of the preliminary and trial proceedings. This provision
predates the high court‘s decision in Faretta and may only be applied where
Faretta is not implicated. (Johnson, supra, 53 Cal.4th at p. 526 [explaining that
post-Faretta, ―Penal Code section 686.1 . . . cannot be given effect,‖ but that
California courts should ―give effect to this California law‖ when possible]; see

31
People v. Burgener (2016) 1 Cal.5th 461, 474-475 (Burgener II). As defendant
concedes, a capital defendant‘s right to self-representation may not be limited at
the penalty phase. Indeed, the penalty phase is merely another stage in a unitary
capital trial, and the Sixth Amendment right to counsel and corresponding right to
self-representation is not vitiated during the penalty phase. (Blair, supra, 36
Cal.4th at pp. 737-738.) We have also considered and rejected defendant‘s
argument that there is any diminution of a criminal defendant‘s autonomy interests
during the penalty phase. (Id. at p. 738; see Taylor, supra, 47 Cal.4th at p. 865
[―the autonomy interest motivating the decision in Faretta . . . applies at a capital
penalty trial as well as in a trial of guilt‖].) Indeed, we have concluded that a
defendant continues to have ―an interest in personally presenting his or her
defense‖ at the penalty phase and controlling what, if any, mitigating evidence to
present. (Blair, at p. 738.)
Notwithstanding this contrary precedent, defendant argues that these cases
do not reflect the high court‘s holding in Edwards that states may limit the right to
self-representation for gray-area defendants. Defendant is correct that Edwards
stands for the proposition that California may, consistent with the federal
Constitution, limit a criminal defendant‘s self-representation right where a
defendant lacks the mental capacity to conduct his or her defense. That does not,
however, support the broad conclusion that the right to self-representation is
abrogated during the penalty phase. (See Edwards, supra, 554 U.S. at pp. 174-
175.) Contrary to defendant‘s argument, we find nothing in Edwards that requires
us to conclude that a state‘s interest in the integrity of death judgments may trump
a defendant‘s autonomy interests merely because the trial has proceeded to the
sentencing stage. Indeed, we rejected such an argument in Taylor, a post-Edwards
decision, in which we held that the autonomy interests underlying Faretta apply

32
with equal force at the penalty phase of a capital trial as at the guilt phase.
(Taylor, supra, 47 Cal.4th at p. 865.)
To the extent defendant‘s argument relies on the same claims addressed in
the prior section, we again conclude that the trial court did not err in failing to sua
sponte revoke defendant‘s self-representation. For the reasons stated above, the
trial court had little reason to question defendant‘s ability to carry out the basic
tasks of self-representation.

6. Failure to Obtain a Renewed Faretta Waiver
The People filed a section 190.3 notice of intent to seek death after the trial
court granted defendant‘s motion for self-representation. Defendant contends that
the trial court erred in failing to obtain an updated Faretta waiver after the People
filed their section 190.3 notice. As the record supports the conclusion that
defendant was fully aware that the People sought the death penalty before the trial
court granted defendant‘s motion for self-representation, we conclude that
defendant‘s Faretta waiver was knowing and voluntary.

a. Background
Defendant expressed his desire to represent himself during his first
appearance in the trial court on January 30, 2003. After being represented by
counsel through the preliminary hearing, defendant filed a motion requesting self-
representation on November 20, 2003. Defendant personally prepared a
memorandum of points and authorities in support of his motion. At the hearing on
the motion, the trial court informed defendant that he had a right to be represented
by counsel, and warned defendant about the disadvantages of self-representation,
including that the prosecutor would be an experienced and skilled attorney and
that the court would be unable to assist defendant. The trial court further
explained that defendant would be unable to make an ineffective assistance of

33
counsel claim with respect to his self-representation and gave defense counsel and
the prosecutor an opportunity to be heard on the motion. The prosecutor stated the
People‘s preference that standby counsel be appointed to take over if the court
terminated defendant‘s self-representation but otherwise submitted on the motion.
Defendant disagreed with the prosecutor‘s description of the limited role of
standby counsel. He cited state and federal case law for the proposition that
standby counsel could provide assistance throughout the proceedings when
requested by the defendant and allowed by the court. After the trial court
explained that Reichle would be only an ―advisor‖ to defendant, and that
defendant would be responsible for presenting his own defense, the trial court
asked whether defendant understood that ―[i]f you are taking on the responsibility
of self-representation, you are taking on all of it, and must assume that you are
going to have to handle that case on your own.‖ Based on defendant‘s affirmative
response, the trial court concluded on the record that defendant had knowingly and
intelligently waived his right to counsel. The court granted defendant‘s motion
and appointed Reichle as advisory counsel. Defendant then entered a plea of not
guilty and denied the special circumstance.
At a status conference on February 9, 2004, the prosecutor indicated that he
―would just like to state on the record that this will be a death penalty case,‖ and
that the prosecutor had ―let Mr. Reichle know that before.‖ The trial court asked
whether defendant or Reichle had anything further to discuss, they answered in the
negative, and the hearing ended.

b. Legal Standard
A criminal defendant may waive his or her right to counsel under the Sixth
Amendment to the United States Constitution. A valid waiver requires that the
defendant have ―the mental capacity to understand the nature and object of the

34
proceedings against him or her,‖ and that the defendant waives the right
knowingly and voluntarily. (Koontz, supra, 27 Cal.4th at pp. 1069-1070.) In
deciding whether a waiver is knowing and voluntary, we examine the record as a
whole to see whether the defendant actually understood the consequences and
import of the decision to waive counsel, and whether the waiver was freely made.
(Godinez v. Moran, supra, 509 U.S. at p. 401, fn. 12.) There is no prescribed
script or admonition that trial courts must use in warning a defendant of the
disadvantages of self-representation. But, in whatever way the trial court chooses
to explain the perils of self-representation, the record as a whole must establish
that the defendant understood the ―dangers and disadvantages‖ of waiving the
right to counsel, including the risks and intricacies of the case. (Blair, supra, 36
Cal.4th at p. 708; People v. Burgener (2009) 46 Cal.4th 231, 241 (Burgener I).)
We review a Faretta waiver de novo, and examine the whole record to determine
the validity of a defendant‘s waiver of the right to counsel. (Burgener I, at p. 241.)

c. Analysis
Defendant argues that the trial court should have obtained an updated
Faretta waiver when the People formally put on the record their intention to seek
the death penalty. Pivotal to defendant‘s claim is the assumption that defendant
failed to apprehend that the People intended to seek the death penalty at the time
he filed his motion for self-representation.
The record shows otherwise. As the People note, the criminal information
filed on May 29, 2003, charged defendant with one count of murder and the
special circumstance that the victim was a peace officer engaged in the
performance of his duties. The information also specified that the sentencing
range was life without parole or death. Defendant also concedes that he filed a
Faretta waiver form, which states that the defendant had been advised of ―the

35
penalties for the offense[s] if found guilty and additional consequences that could
result.‖ In response to the court‘s queries at the hearing on defendant‘s motion for
self-representation, defendant stated that he had read and understood the form and
did not have any questions.
Defendant dismisses the importance of the waiver form and the questioning
by the trial court. Instead, defendant contends, there is no evidence in the record
that the trial court ever explicitly advised defendant that death was a possible
penalty before granting his motion for self-representation. Defendant is right that
the record does not indicate clearly whether the trial court so advised defendant.
While many defendants will know the potential sentences they face while waiving
representation, it is valuable for trial courts –– as a routine practice –– to orally
review during a Faretta colloquy the potential sentence a defendant faces.
What is nonetheless clear from this record is that, one way or another,
defendant was fully aware of the fact that this was a capital case at the time he
requested to represent himself. In defendant‘s November 24, 2003, memorandum
of points and authorities in support of his motion for self-representation, defendant
referred to the capital nature of the case multiple times throughout the 15-page
document. Defendant specifically requested that the court appoint Reichle as
advisory counsel, and in citing legal authority setting forth the scope of the trial
court‘s discretion to do so, argued that, ―In capital cases the Court has the
authority to appoint an additional attorney as co-counsel. P.C. 987(d).‖ On the
next page, defendant cited section 987, subdivision (d) and case law for the
proposition that ―[i]n a death penalty case a trial court may be required to appoint
a second attorney as co-counsel.‖ Defendant acknowledged that ―apparently a
defendant representing himself in a death penalty case is not recognized to have
this same right to the appointment of second counsel,‖ but then put forth an
argument that the same standard for appointing second counsel should apply to pro

36
se capital defendants. Defendant also argued that his planned defense was an
―extremely complex‖ one that required the assistance of ―death-qualified counsel.‖
There is little doubt that defendant comprehended that this was a capital case at the
time the trial court accepted his Faretta waiver.
The People‘s response to defendant‘s motion for self-representation also
referred to the case, repeatedly, as a capital one. Defendant disagreed with the
People‘s response to his motion at the hearing and demonstrated that he had both
read and understood the nuances of the People‘s brief. These facts support the
conclusion that defendant was both advised and fully aware of the fact that he
would be facing the death penalty at the time he waived his right to counsel. That
the People did not give their section 190.3 notice until February 9, 2004, is of little
import where, as here, the record as a whole reflects that defendant knew and
understood that he would be facing the death penalty. Accordingly, we reject
defendant‘s claim.

B. Guilt Phase Issues

1. Witt Issues as to Jurors Nos. 7877, 7017, 10155, and 9466
According to the defendant, the written questionnaires of four seated jurors
indicated that these jurors believed a defendant convicted of killing a police officer
engaged in the performance of his or her own duties should automatically receive
the death penalty. Defendant contends that these jurors therefore should have
been excused for cause under Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).
Defendant argues that the trial court violated his rights to an impartial jury under
the Sixth Amendment to the United States Constitution. Defendant‘s claim is
forfeited and, even if not forfeited, meritless.

37
 a. Background
The trial court, with the input of the parties, required prospective jurors to
fill out a written questionnaire prior to voir dire. The questionnaire included
several questions intended to elicit prospective jurors‘ views on the death penalty,
and whether a prospective juror would be capable of setting aside his or her own
personal beliefs and defer to the law. Questions Nos. 38 and 54 sought to
determine whether a prospective juror would always vote for death if a defendant
was found guilty of intentional first degree murder, and whether a prospective
juror could see him- or herself exercising both sentencing options.5 Similarly,
question No. 55 asked prospective jurors whether they strongly agreed, somewhat
agreed, strongly disagreed, or somewhat disagreed with the statement that
―[a]nyone who intentionally kills another person should always get the death
penalty.‖
In addition, questions Nos. 39 and 49 asked prospective jurors for their
opinions about capital punishment under the facts presented in the case at hand:
the killing of a police officer while the officer was engaged in the performance of
his duties. More specifically, question No. 39 asked: ―Do you feel that the State of

5 Question No. 38 asked: ―If the jury found a defendant guilty of intentional
first degree murder and found a special circumstance to be true, would you always
vote for death, no matter what other evidence might be presented at the penalty
hearing in this case?‖
Question No. 54 asked: ―There are no circumstances under which a jury is
instructed by the court to return a verdict of death. No matter what the evidence
shows, the jury is always given the option in the penalty phase of choosing life
without the possibility of parole. (a) Given the fact that you will have two options
available to you, can you see yourself, in the appropriate case, rejecting the death
penalty and choosing life imprisonment without the possibility of parole instead?
(b) Given the fact that you will have two options available to you, can you see
yourself, in the appropriate case, rejecting life imprisonment without the
possibility of parole and choosing the death penalty instead?‖

38
California should automatically put to death everyone who: A. Kills another
human being? B. Is convicted of murder? C. Is convicted of multiple murder? D.
Is convicted of murder plus the murder was of a peace officer while the peace
officer was engaged in the performance of his duties?‖ Question No. 49 queried:
―The murder alleged in this case alleges the special circumstances that David
Mobilio was a police officer who was intentionally killed while engaged in the
performance of his duties and that the defendant knew and reasonably should have
known that David Mobilio was a peace officer who was engaged in the
performance of his duties. Do you think that, depending on the circumstances of
this case and the evidence to be presented in the penalty phase, if any: -- you could
impose the death penalty in such case? -- you could impose life in prison without
parole in such a case?‖
During voir dire, the trial court asked prospective jurors additional
questions. The court inquired as to the prospective jurors‘ views on the death
penalty, their ability to impose either life without the possibility of parole or the
death penalty based on the evidence, and their willingness to be fair and impartial
and follow the court‘s instructions. The trial court asked each prospective juror
these questions on the record, and also asked follow-up questions if the
prospective juror‘s questionnaire responses indicated potential bias or revealed
any inconsistencies or ambiguities. After the trial court questioned prospective
jurors on death qualifications, defendant and the prosecution stipulated to the
excusal of two prospective jurors, and the parties were allowed to conduct their
own voir dire.
Defendant challenged two prospective jurors for cause. The prosecution
submitted as to the first juror and objected to the second. The trial court excused
the first juror, but denied defendant‘s challenge as to the second juror. Defendant
subsequently exercised a peremptory strike as to the second juror. Defendant also

39
struck another prospective juror. Defendant then passed on the remainder of his
peremptory challenges.

b. Legal Standard
A criminal defendant is entitled to an impartial jury. (People v. Earp
(1999) 20 Cal.4th 826, 852.) A prospective juror‘s opinions on the death penalty
may support an excusal for cause if those opinions would ― ‗prevent or
substantially impair the performance‘ ‖ of the prospective juror‘s duties. (Witt,
supra, 469 U.S. at p. 424.) A prospective juror who is incapable of
―conscientiously consider[ing]‖ the full range of sentencing options, including the
death penalty, should be excluded from service. (People v. Jenkins (2000) 22
Cal.4th 900, 987 (Jenkins).) An inability to carefully and sincerely consider all
sentencing options is distinct, however, from merely holding views about the
death penalty, including personal opposition to capital punishment. (People v.
Leon (2015) 61 Cal.4th 569, 591 (Leon) [―But personal opposition to the death
penalty is not an automatic ground for excusal‖].) Rather, so long as a prospective
juror is willing to ― ‗temporarily set aside [his or her] own beliefs‘ ‖ and fairly
consider the sentencing alternatives presented under the law, the prospective juror
may properly serve on a capital jury. (Id. at p. 592; Lockhart v. McCree (1986)
476 U.S. 162, 176.)
Where a trial court conducts in-person voir dire, we generally defer to the
trial court‘s determination as to a prospective juror‘s true state of mind. (Leon,
supra, 61 Cal.4th at p. 593; Jenkins, supra, 22 Cal.4th at p. 987.) Unlike the
reviewing court, the trial court that has conducted voir dire has the unique benefit
of observing a prospective juror‘s credibility, tone, attitude, and demeanor —
factors we have described as of ― ‗ ―critical importance‖ ‘ ‖ in determining

40
whether a prospective juror is capable of performing his or her duties as a juror.
(Leon, at p. 593.)

c. Analysis
Defendant has forfeited any Witt claim. As a general matter, we require a
defendant to exhaust his or her peremptory challenges as a condition precedent to
a claim of error in this context. (People v. Bolin (1998) 18 Cal.4th 297, 315.) A
defendant must (1) use a peremptory challenge to remove the objected-to juror, (2)
exhaust his or her peremptory challenges or provide a justification for the failure
to do so, and (3) ―express dissatisfaction‖ with the selected jury. (Blair, supra, 36
Cal.4th at p. 741; Taylor, supra, 47 Cal.4th at p. 884 [quoting Blair].)
Here, defendant concedes that he failed to use his peremptory challenges
with respect to Jurors Nos. 7877, 7017, 10155, and 9466, that he did not exhaust
his peremptory challenges, and that he did not express dissatisfaction with the
final jury. Defendant provides no justification for his failure to challenge or object
to these jurors, and we find no reason in the record why defendant could not have
done so. Indeed, as noted, defendant challenged other jurors for cause and
exercised a peremptory strike as to the juror that the trial court did not excuse for
cause. Defendant has forfeited any claim of error with respect to Jurors Nos.
7877, 7017, 10155, and 9466.
Moreover, even assuming defendant had not forfeited his claims with
respect to Jurors Nos. 7877, 7017, 10155, and 9466, those claims lack merit.
Defendant argues that the four jurors‘ responses to the questionnaire were subject
to challenge for cause, as their opinions would prevent or substantially impair their
performance of their duties as jurors. Specifically, Jurors Nos. 7877, 7017, and
10155 all responded ―yes‖ to question No. 39-d, which asked whether the
individual felt that the state should automatically put to death everyone who ―[i]s

41
convicted of murder plus the murder was of a peace officer while the peace officer
was engaged in the performance of his duties.‖ Juror No. 9466 responded to this
question with a question mark. As the People observe, however, each of these
jurors also answered a series of other questions on the written questionnaire,
including providing affirmative responses to question No. 49, which asked each
juror whether ―you could impose‖ the death penalty or life in prison without
parole, after describing the specific facts of this case: that defendant had allegedly
killed a peace officer who was engaged in the performance of his duties.
It is conceivable that these jurors held the personal opinion that the state
should automatically impose the death penalty whenever a defendant is found
guilty of the intentional murder of a peace officer engaged in the performance of
his or her duties. But each of these four jurors also affirmatively stated that he or
she was capable of imposing either the death penalty or life in prison without
parole under the specific facts presented in the instant case. That they had
particular feelings and opinions about the propriety of capital punishment for the
killing of peace officers is, standing alone, insufficient to require excusal from
service. (See Leon, supra, 61 Cal.4th at p. 592; Jenkins, supra, 22 Cal.4th at p.
987.) Instead, we ask whether the record reflects the jurors‘ ability and
willingness to ― ‗temporarily set aside‘ ‖ these personal opinions, and fairly
consider either the death penalty or life in prison without parole. (Leon, at p. 592.)
Here, each juror not only affirmed that he or she was capable of conscientiously
considering the sentencing alternatives on their written questionnaires, but also
indicated during voir dire that he or she would not automatically vote for or
against death regardless of the evidence, and that he or she was capable of
imposing either sentence. Moreover, to the extent these jurors‘ responses might be
considered ambiguous or conflicting, we defer to the observations of the trial
court, as it was best positioned to evaluate the jurors‘ responses, attitudes, and

42
demeanors. (Leon, at p. 593; Jenkins, at p. 987.) Defendant‘s claims would fail
on the merits, even if he had not forfeited them.

2. Exclusion of Defendant’s Liberty Defense
Defendant argues that the trial court deprived him of his constitutional right
to testify in his own defense by excluding defendant‘s liberty defense. For the
reasons discussed below, defendant‘s argument fails.

a. Background
The trial court granted defendant‘s motion for self-representation on
December 8, 2003. Defendant first indicated at a pretrial hearing on May 10,
2004, that he intended on testifying at trial. After some discussion with the trial
court about whether defendant would be allowed to testify in narrative form, ask
himself questions, or have advisory counsel ask him questions, the trial court
indicated that it would ―entertain whatever request it is that‖ defendant would
make, and give the People an opportunity to be heard.
At a subsequent pretrial hearing on March 17, 2005, the trial court indicated
that if defendant intended on providing a defense, the trial court would require
defendant to make an offer of proof. Based on defendant‘s Internet postings and
offer to stipulate to culpability in the acts underlying the offense, the trial court
was concerned that defendant planned to argue legally invalid defenses. The trial
court referenced defendant‘s statements from his Internet postings that ―I was a
corporation; therefore, I am immune from liability,‖ and ―I want to make a
political statement protesting police brutality.‖ Defendant indicated his
understanding of the trial court‘s concerns and offered no other explanation or
statement at that particular hearing.
Defendant then submitted two briefs to the trial court, in which he argued
that he should be allowed to make an offer of proof in camera and ex parte, and

43
also outlined his proposed defense theory. The People submitted on defendant‘s
request to have an in camera opportunity to explain his liberty defense to the trial
court, and the court held an in camera hearing with defendant and advisory
counsel on April 1, 2005. At that hearing, defendant explained that his killing of
Officer Mobilio was a ―necessary‖ exercise of his ―right to defend liberty.‖
Defendant conceded that his defense theory was not recognized anywhere in the
United States. According to defendant, the government‘s infringement of
individual liberties justified his killing of Officer Mobilio, as police officers
enforce unjust laws. The court explained that the democratic rule of law required
individuals who sought to defend liberty to use the political process or the courts,
and that the law could not countenance ―[s]hooting a cop on the street‖ in order to
effect political change. The court then concluded that defendant would not be
allowed to present a defense to the jury that was ―not cognizable in the law‖
because the court could not instruct on such a defense and that the evidence as to
those theories was irrelevant. In response, defendant became ―very emotional‖
and indicated that he would sit in ―silent protest during the guilt phase.‖ The court
offered to give defendant time to reconsider that decision, and after consulting
with advisory counsel, defendant again stated that he would not present a defense
during the guilt phase.

b. Legal Standard
Under the due process guarantees of the Fourteenth Amendment to the
United States Constitution, a criminal defendant has the right to testify on his or
her own behalf. (People v. Bradford (1997) 15 Cal.4th 1229, 1332; People v.
Robles (1970) 2 Cal.3d 205, 215.) These constitutional due process guarantees
include the right to present witnesses and evidence in support of a defense.
(Chambers v. Mississippi (1973) 410 U.S. 284, 302.) As the high court has

44
explained, however, these rights are ―subject to reasonable restrictions.‖ (United
States v. Scheffer (1998) 523 U.S. 303, 308; Chambers, at p. 302 [noting that a
defendant ―must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and
innocence‖].)
―As a general matter, the ordinary rules of evidence do not impermissibly
infringe on the accused‘s right to present a defense.‖ (People v. Hall (1986) 41
Cal.3d 826, 834; Rock v. Arkansas (1987) 483 U.S. 44, 55 [the right to present
―relevant testimony is not without limitation‖].) As long as the trial court‘s
restrictions on a defendant‘s right to testify are not ―arbitrary or disproportionate
to the purposes they are designed to serve,‖ a court may limit a defendant‘s
testimony pursuant to a rule of evidence if ―the interests served by [the] rule
justify the limitation imposed on the defendant‘s constitutional right to testify.‖
(Rock, at p. 56.) We review a trial court‘s ruling to exclude evidence as irrelevant
for abuse of discretion. (See People v. Clark (2011) 52 Cal.4th 856, 892.)

c. Analysis
Defendant contends that the trial court‘s order excluding him from
presenting evidence in support of his proffered liberty defense to murder on
relevance grounds was arbitrary and disproportionate to the interests the relevance
doctrine is designed to serve, thus violating defendant‘s fundamental constitutional
right to testify on his own behalf. On appeal, defendant does not argue that his
right to testify was improperly restricted because his liberty defense was legally
cognizable as justification for the homicide. Instead he contends that the
categories of evidence about which he sought to testify were relevant to the
circumstances of the offense and to his motive for committing the offense. But the
trial court did not err in restricting defendant‘s ability to testify that his killing of

45
Officer Mobilio was legitimate because it was in defense of liberties that
defendant believed were being infringed by the government. Defendant‘s
proffered evidence, that he did not know Officer Mobilio and had no prior
interactions with Officer Mobilio, was not relevant to any element of the charged
offense of first degree murder, nor did it have any bearing on defendant‘s guilt or
innocence.
Defendant argues that his motive to defend his liberty was relevant
evidence. His theory was that such a motive tended to negate the element of
premeditation under CALJIC No. 8.73.1, as it tended to show he acted under a
delusion. (CALJIC No. 8.73.1 (2004 ed.) [―A hallucination is a perception that
has no objective reality. [¶] If the evidence establishes that the perpetrator of an
unlawful killing suffered from a hallucination which contributed as a cause of the
homicide, you should consider that evidence solely on the issue of whether the
perpetrator killed . . . without deliberation and premeditation.‖].) This argument
fails to persuade. Defendant argued that his killing of Officer Mobilio was
justified because he acted in defense of liberty in the same way that American
colonists did against British attempts to disarm them. At no point was there any
evidence or inference that defendant had hallucinated the historical events of the
American Revolution or any other events related to the offense. Rather, defendant
analogized his actions to those of American revolutionaries, and argued that his
killing of a law enforcement officer was an action against tyranny and therefore
justified. This does not fall within the scope of CALJIC No. 8.73.1, and the record
does not support the conclusion that defendant‘s liberty defense was relevant to
premeditation.
There was no basis in law for either convicting defendant of a lesser offense
or excusing defendant from criminal liability altogether. Allowing defendant to
testify about his political opinions regarding the government‘s infringement on

46
personal liberties, including the right to bear arms, would have confused the jury
as to why defendant‘s beliefs were relevant to the elements of first degree murder
and would have misled the jury as to the relevance of defendant‘s personal beliefs.
The court did not abuse its discretion by excluding evidence related to defendant‘s
liberty defense.

C. Penalty Phase Issues
Defendant raises a variety of challenges to the death penalty statute. As
defendant concedes, we have previously considered and rejected each of his
claims.
Allowing the jury to consider defendant‘s age as a sentencing factor is not
unconstitutionally vague in violation of the Eighth Amendment to the United
States Constitution. (Tuilaepa v. California (1994) 512 U.S. 967, 977; People v.
Ray (1996) 13 Cal.4th 313, 358.) We have also previously rejected claims that
California‘s capital punishment scheme fails to perform the narrowing function
mandated under the Eighth Amendment. (People v. Sakarias (2000) 22 Cal.4th
596, 632.)
Section 190.3, factor (a), as applied, sufficiently minimizes the risk of
arbitrary and capricious action prohibited by the Eighth Amendment. (People v.
Schmeck (2005) 37 Cal.4th 240, 304-305 (Schmeck), abrogated in part on different
grounds by People v. McKinnon (2011) 52 Cal.4th 610.) A jury need not find that
aggravating factors outweigh mitigating factors beyond a reasonable doubt.
(Schmeck, at p. 304.)
We have previously rejected each of defendant‘s arguments regarding
CALJIC 8.85. We see no reason to reconsider our prior conclusion that CALJIC
8.85 does not violate the Eighth and Fourteenth Amendments by ―failing to delete
inapplicable sentencing factors, delineate between aggravating and mitigating

47
circumstances, or specify a burden of proof‖ as to aggravation or the penalty
decision, nor by limiting certain mitigating factors by adjectives such as ―extreme‖
or ―substantial.‖ (Schmeck, supra, 37 Cal.4th at p. 305; People v. Ray, supra, 13
Cal.4th at pp. 358-359.)
Moreover, CALJIC 8.88 is not inconsistent with the principle that the jury
may return a verdict of life without parole even if it concludes that the evidence in
aggravation outweighs the evidence in mitigation. (People v. Smith (2005) 35
Cal.4th 334, 370.)
Nor does California ―deny capital defendants equal protection by providing
certain procedural protections to noncapital defendants but not to capital
defendants.‖ (People v. Williams (2013) 58 Cal.4th 197, 295.) And we have
previously rejected claims that international laws and treaties render the death
penalty unconstitutional as applied in this state. (Id. at pp. 295-296.) Defendant
cites the International Covenant on Civil and Political Rights, but the United
States expressly reserved the right to impose capital punishment under that
agreement. (People v. Brown (2004) 33 Cal.4th 382, 403-404.) Defendant
provides no reason for us to reconsider our prior decisions.

48
 III. DISPOSITION
The judgment is affirmed.

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.

49
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Mickel
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S133510
Date Filed: December 19, 2016
__________________________________________________________________________________

Court: Superior
County: Tehama
Judge: S. William Abel

__________________________________________________________________________________

Counsel:

Lawrence A. Gibbs, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Ward A. Campbell and Robert C. Nash, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Lawrence A. Gibbs
P.O. Box 7639
Berkeley, CA 94707
(510) 525-6847

Robert C. Nash
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-5809