THE PEOPLE, Plaintiff and Respondent, v. JON SCOTT DUNKLE, Defendant and Appellant, 36 Cal. 4th 861

Opinion KENNARD, J. A jury convicted defendant Jon Scott Dunkle of the first degree murders of 15-year-old John Davies and 12-year-old Lance Turner, finding true a multiple-murder special-circumstance allegation and weapon-use enhancement allegations. (Pen. Code, §§ 187, 190.2, subd. (a)(3), 12022, subd. (b).) After a penalty trial, the same jury returned a verdict of death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. FACTS A. Guilt Phase 1. Disappearance of John Davies In November 1981, defendant, then 21 years old, was a close friend of the Davies family, who lived in Belmont.

He often visited the Davies residence and spent time with 17-year-old Mark Davies and his 15-year-old brother John. On the morning of Sunday, November 8, 1981, James Davies called the police to report his son John missing. Davies and his wife, Joan, had returned home around 1:30 a.m. and had noticed nothing amiss. Joan had found John missing when she opened his bedroom door sometime after 8:30 a.m. John had laid out his church clothes and had left behind all his possessions, including his only pair of shoes.

He usually informed his parents of his whereabouts and, according to them, was not the sort of child who would be expected to run away. James and Joan Davies unsuccessfully made extensive efforts to locate John for several years after he disappeared. Soon after the disappearance, James Davies called defendant to come over and help post flyers describing John. Defendant came over on the Wednesday or Thursday after the Sunday John was reported missing, and left with some flyers. He never visited the Davies family again.

Mark Davies testified that before John disappeared, defendant would come by the Davies residence in his white Honda automobile. If he came to visit in the evening, he would throw rocks at Mark’s window so Mark could sneak out of the house without his parents’ knowledge. They would drive to the Hassler Hospital site off Woodside Road and Highway 280 to explore the partially abandoned grounds. Mark last saw his brother John on Saturday, November 7, about 10:30 p.m., when Mark went to bed. Mark never heard from defendant after John’s disappearance.

Joan Davies testified that when defendant visited her sons, they would often sit in defendant’s car listening to music. Initially, police theorized John had run away. Belmont Police Detective Jerrold Whaley contacted defendant in mid-1982, and defendant told him where John liked to hang out. Because the Davies family reported that defendant was John’s closest friend, Whaley contacted defendant often. By September 1984 the police were treating the disappearance as a possible kidnapping and had contacted the Federal Bureau of Investigation (FBI) for assistance.

On December 4, 1984, Whaley and FBI Agent Robert Deklinski twice interviewed defendant at his residence near Sacramento. In the first interview, defendant denied seeing John on Saturday, November 7, 1981, claiming he did not leave his parents’ home that evening, and denied ever throwing rocks to summon Mark or John and sitting in his car listening to music with John.

In the second interview, Whaley and Deklinski probed the discrepancies between the Davies family members’ and defendant’s accounts; defendant was emphatic that he had neither thrown rocks at the boys’ bedroom windows nor listened to music with John in his car. Defendant also denied he had ever traveled with John to a hangout he called the “morgue,” evidently the Hassler Hospital grounds. 2. Murder of Lance Turner On October 2, 1984, about 7:00 p.m., Belmont resident Margaret Turner called the police to report her 12-year-old son, Lance, missing from soccer practice.

That day, Timothy O’Brien had driven his two sons and Lance to soccer practice at the fields behind Ralston Intermediate School. O’Brien began coaching his team and did not see Lance again. Later, when the practice ended, O’Brien asked Lance’s coach, Ray Williamson, where Lance was. Williamson told him Lance was not at practice that day. Several boys reported seeing Lance head toward Waterdog Lake, three-eighths of a mile from the soccer field. A search followed. William Russell arrived at 6:00 p.m. to pick up his son from soccer practice and, after taking his son home, joined the search for Lance.

About 8:20 p.m., Russell shined a flashlight onto some bushes in a gully off the path to Waterdog Lake and saw feet sticking out of the bushes. Lance’s body was found under the overgrown brush. Pathologist Peter Benson, M.D., testified Lance had died from blood loss due to multiple stab wounds. Two wounds to the heart were each fatal; two other wounds to the lungs were potentially life threatening. There were numerous defensive wounds to the arms and hands, as well as scratches, scrapes and bruises.

Stephanie Olson, Kendra Durham, and Nicole Guthrie, students at Ralston Intermediate School at the time of the Turner homicide, testified that about 3:00 p.m. on October 2, 1984, they left school, skipping volleyball practice, and went down to Waterdog Lake to smoke cigarettes. A man whom Stephanie described as having dirty blond hair, pimples, and dirty teeth with a retainer approached them and started a conversation. He told them his name was Jon and said he had graduated from Carlmont High School the year before. He was drinking beer from a tall Budweiser can, which he offered to the girls.

The girls left after about 20 minutes. Another Ralston student saw a man with dirty blond hair near Waterdog Lake about 4:00 p.m. (None of these witnesses was asked to identify defendant in the courtroom. Olson, Durham and Guthrie gave the police a description of the man that was incorporated into a composite drawing used in the investigation of the Turner homicide. As discussed below ¡post, at p. 874], in his confession to FBI agents, defendant described talking with the three girls shortly before he killed Turner.) 3.

Investigation of Davies and Turner murders On December 27, 1984, Belmont Police Detective Sergeant James Goulart interviewed defendant concerning the Turner homicide. Defendant was by then the only suspect in the crime. Detective Goulart advised him of his constitutional rights, and he agreed to speak with Goulart. Defendant denied having been at Waterdog Lake on October 2, 1984, claiming he had been at home until noon and then had gone to stores in Redwood City to fill out employment applications, returning home by bus at 4:30 p.m. Later police contacts with those businesses turned up no such applications.

In January 1985, in an effort to gather information about the Turner homicide, Belmont Police Officer Lisa Thomas began working undercover at the Sacramento Carl’s Jr. restaurant where defendant was employed. There she encountered defendant several days a week, regularly visited him at his sister’s house, where he was residing, and sometimes went to a bar or movie with him. Defendant often spoke with Thomas about newspaper reports on the investigations, at one point showing her a collection of clippings.

On February 9, 1985, defendant told her the police and the FBI had been in his home for five hours, confronting him, and that he had lied to them. To Thomas, he maintained his innocence, claiming that on the day Turner was killed he had gone to Redwood City to fill out job applications. Defendant seemed impressed with the attention he was getting from the FBI. In May 1986, James and Joan Davies met with defendant for several hours seeking information about John. Defendant said he had none. Joan Davies met with defendant again in July 1986, and he continued to insist he had no information.

On September 16, 1986, Charles Rice told Michael Wiley, a law enforcement investigator for the State of California, that defendant had admitted to killing John Davies and Lance Turner. (During the penalty phase, the jury was informed that Rice was defendant’s cellmate at the state prison in San Luis Obispo on that date.

Defendant was then incarcerated on a burglary conviction arising out of an incident, discussed post, at pages 921-923, in connection with a related appellate contention.) Wiley testified that Rice voluntarily made a statement, asking nothing in return, and insisted on trying to obtain further information from defendant because he was appalled by the killings. On September 22, 1986, Rice gave investigators two maps, drawn by defendant, of the crime scenes. A week later, defendant met with Rice, who was wearing a wireless transmitter, and described the Davies and Turner murders in graphic detail.

Defendant refused to report the crimes to the Belmont police because he did not trust them. He said he did trust the FBI, however, so Rice told defendant he had a friend who was an FBI agent and would help defendant if he confessed to him. Prison officials arranged to find an FBI agent to take the confession. On October 3, 1986, FBI Special Agents Frank Hickey and Daniel Payne interviewed defendant at the state prison in San Luis Obispo. Rice was also present. Defendant was advised of his constitutional rights and signed a waiver.

Defendant stated that, before killing John Davies, he was at Half Moon Bay with three friends, drinking whisky and smoking marijuana. He then drove to the Davies residence, parked a few doors down the street, and entered through an unlocked door. He went to John’s bedroom and invited him to come and drink beer. John agreed, and went with defendant to Edgewood Park in Redwood City near the Crystal Springs Reservoir. John was wearing a black T-shirt, blue corduroy pants and no socks or shoes. Defendant parked near a shooting range and, before leaving the car, removed a knife from the glove compartment.

At that point, he “committed” himself to killing John. They walked half a mile to two miles down a dirt road. Defendant then stabbed John in the back, sat on his chest and stabbed him in the throat. When John struggled, defendant picked up a large rock and struck him in the head. Defendant then dragged the body to an opening in the ground, pushed it in and left the scene, later disposing of his bloodstained clothing. A week after the murder, defendant returned to the area and observed that the body was bloated and animals were feeding on it. In May 1984, he returned again and observed a skull.

Asked about a motive for killing John Davies, defendant said that when he drank beer and smoked marijuana he became aggressive. He also noted that John used to cause a computer monitor to flash irritating statements that defendant would observe, and this angered him. Defendant drew a map for the investigators illustrating the location of John’s remains. Regarding the murder of Lance Turner, defendant stated that on October 2, 1984, he was in the process of moving from Belmont to another part of the state. On that day, he bought a six-pack of beer and went to the park near Waterdog Lake to drink it.

At 2:30 p.m., after some three hours at the lake, he went to an area near Ralston School. He climbed a tree known as the “smokers’ tree” and used his buck-type hunting knife to stab at it. Three junior-high-school-age girls came to the tree looking for a pack of cigarettes and dug up a matchbook with a distinctive inscription. The girls shared defendant’s last beer and one of them offered him a marijuana cigarette. At one point defendant saw a boy wearing athletic clothes run down the hill. After the girls left, defendant stayed for another five minutes.

Then, as he headed back toward the dock, he saw the boy jogging in the area. To get his attention, defendant asked him the time. The boy responded that it was 3:50, and turned away. As he turned, defendant stabbed him in the side with his hunting knife. The boy struggled as defendant stabbed him a second time, then went down to the ground and complied with defendant’s command to put his leg down. In the course of the struggle, the boy bit defendant so severely on the thumb that he later lost the nail. Defendant stabbed him again, in the throat, and yet a fourth time near the heart. The boy then appeared dead.

Defendant moved the body under some low bushes and went home. He later disposed of the knife and sheath in separate places and discarded his shoes out of concern that their prints could be identified. He correctly described a birthmark on the side of the boy’s neck. Using a map defendant had drawn, Belmont police searched for John Davies’s remains and found items of clothing, bones and a skull. A forensic pathologist who examined the skull testified it was consistent with that of a young Caucasian male and bore evidence of blunt force trauma that could have been inflicted by a rock.

Orthodontist Stan Wolken compared X-rays of his patient, John Davies, with X-rays of the remains, finding similarities between them. On October 6, 1984, defendant led investigators into a field near a Carmichael residence and pointed out the shrubbery where he had discarded the knife he had used to kill Lance Turner. With the help of a metal detector, investigators found a folding Puma brand knife. On two occasions in October 1986, for 45 minutes and five hours respectively, Psychiatrist James Missett, met with defendant at the request of the district attorney’s office. Dr.

Missett read defendant his constitutional rights at the outset of each interview and defendant waived them. Defendant described having an interest in reading newspaper accounts of killings when he was in elementary school. He stopped doing so in fifth grade because “homicides weren’t part of my everyday scene.” In sixth grade, defendant became aware that he wanted to kill someone after watching a movie in which an older boy was about to kill a younger boy to prevent him from disclosing a diary containing references to other murders.

About the Davies murder, defendant said: “I thought to myself[,] you have got someone out in the middle of nowhere, here is your chance to kill someone. You have thought of killing someone before.” After describing how he initially stabbed Davies, defendant told Dr. Missett he pinned Davies down with his knees on his shoulders and, when Davies asked what he planned to do, defendant said he was going to kill him. He told Davies to scream all he wanted before stabbing him in the throat and strangling him with his hands.

Defendant said he stopped to think whether he wanted to go through with it before he picked up a rock and hit Davies three times on the right side of the head. B. Penalty Phase 1. Prosecution case in aggravation The prosecution introduced evidence that defendant had attempted, in separate incidents, to kill Steve Muiphy and Monte Hansen, and had murdered Sean Dannehl. The prosecution also presented evidence, described below in connection with related contentions (see post, at pp. 918-920), of defendant’s threat to kill jail nurse Angela Beck and his burglary of the home of Richard Rennie. a.

Attempted murder of Steve Murphy On November 5, 1982, 16-year-old Steve Murphy attended a party at a friend’s house in San Mateo. Leaving the party around 11:30 p.m., he walked another friend home. Murphy was heading toward his own residence, 15 to 20 houses away, when he lost consciousness. He awoke after daylight the next morning near a large dirt area surrounded by trees. He fell unconscious again and next woke up in a hospital, discovering that his spleen and a kidney had been surgically removed. He spent the next three weeks in the hospital with broken ribs and a broken pelvis.

His injuries caused him to miss several months of school. In October 1986, after obtaining a waiver of constitutional rights, Belmont Police Officer Joseph Farmer spoke with defendant about the assault on Murphy. Defendant admitted he had been drinking alcohol on the beach before driving his car up the hill on 42d Avenue in San Mateo. He saw someone walking on 42d Avenue and made two or three right turns to encounter the person again. He deliberately ran over the person, put him in the back of his car, and drove him to an isolated area in Belmont at the Marburger turnaround.

He took the person out of the car and laid him on the roadway. Defendant referred to the person as “Steve Murphy,” but did not explain how he had learned the victim’s name. b. Attempted murder of Monte Hansen In 1982, Monte Hansen, then 16 years old, often went out drinking with defendant. On New Year’s Eve that year, Hansen invited defendant to come to his house, as his parents were out. Defendant arrived shortly before midnight, apparently under the influence of alcohol, and told Hansen he felt dizzy. Hansen told him to drink some water and went out into the backyard to smoke a cigarette.

There, he turned to observe defendant approaching him, a two-by-four-inch board studded with nails in his raised hand. Defendant struck at Hansen with the board. One blow hit him in the head, but Hansen blocked the rest of the blows with his forearm. Defendant was smiling as he attacked Hansen. Defendant then reentered the house and Hansen saw him put a knife back in a kitchen cabinet. Hansen screamed at defendant to get out and told defendant he would kill him if he harmed his little brother, who was asleep in a bedroom. Defendant ran toward his car and Hansen never saw him again.

On February 28, 1985, undercover officer Lisa Thomas told defendant a false story about her involvement in a hit-and-run accident. Defendant then told her how he had run over Steve Murphy and assaulted Monte Hansen; a recording of the conversation was played for the jury. c. Murder of Sean Dannehl Around 6:00 p.m. on July 2, 1985, 12-year-old Sean Dannehl went to a friend’s house in Sacramento, riding his bicycle. When he did not return home by 9:00 p.m., his mother called the friend’s house and learned Sean had left around 7:30. His father and mother and her husband searched for him.

His body was found six days later at Lower Sunrise Park. A board with a nail in it and a beer can were found at the scene. An autopsy revealed the cause of death to be two stab wounds to the heart, one penetrating a rib, caused by something thick, pointed and dense, consistent with a marijuana pipe tool. Sean also suffered a perforating wound to the skull consistent with the nail-embedded board. Insect activity in the facial and neck area also suggested the presence of some type of wound there. Sacramento Detective Robert Bell questioned defendant on July 5, 1985.

Defendant said he did not know about the missing boy, but he admitted that on July 2 he was on a bicycle trail at Lower Sunrise Park drinking beer with friends until about 8:30 p.m., when he rode home. He claimed a flat tire prevented him from arriving at home before 10:00 p.m. Anton Martinez and Paul Stanley confirmed they were on the bicycle trail with defendant that day, drinking beer and smoking marijuana until they parted around sunset. After Sean’s body was found, Detective Bell contacted defendant, who agreed to accompany investigators to the police station.

After waiving his constitutional rights, defendant denied knowing anything about Sean’s murder. Investigators drove defendant to his sister’s residence, where he was staying. Defendant and his sister agreed to a search of the house; no evidence was found. Defendant later voluntarily returned to the police station to provide hair, blood and saliva samples. The next day, July 10, 1985, defendant showed Detective Bell where on the bicycle trail he had had a flat tire and where he and his friends had met to drink beer.

Defendant also assisted investigators in searching for his missing marijuana pipe tool, accompanying them to several smoke shops and finding one tool he said resembled the one he had lost. On July 15, 1985, defendant telephoned Detective Bell to tell him Paul Stanley’s blood might be found on his (defendant’

s) bicycle because Stanley had fallen and might have bled on it. On August 19, 1985, in an effort to get defendant to confess, undercover narcotics officer Ronald Goesch, posing as “Ron Cross,” left a letter at defendant’s house. The letter advised that Cross lived near the river, the police were pressuring him, and he knew what defendant had done and would be communicating with him again. Defendant gave the letter to Detective Bell. Officer Goesch left another letter and called defendant four days later, asking to meet with him.

Goesch said he knew about “the board” and “other stuff,” and wanted money or he would go to the police and give them evidence, adding that he needed the money to avoid his own arrest. Defendant did not respond and did not appear at the time Goesch requested. After investigators questioned defendant about the Ron Cross information, defendant telephoned Detective Bell, upset at the course of the investigation. In the course of the conversation, defendant asked, hypothetically, what might happen if he confessed to the crime.

He also asked, hypothetically, if he were at the scene, saw the victim screaming and took no action to save him, whether his inaction would get him in trouble. Department of Corrections Sergeant Michael Wiley took Charles Rice’s report of defendant’s confessions. On September 28, 1986, in Wiley’s office, Wiley overheard defendant describe to Rice, who was wearing a wireless microphone, the murders of Lance Turner, John Davies and Sean Dannehl.

On October 3, 1986, following defendant’s agreement to confess to the murders to the FBI (see ante, at p. 874), FBI Special Agents Frank Hickey and Daniel Payne asked defendant about the Dannehl murder. Charles Rice was also present during the interview. Defendant stated that on July 2, 1985, he had left his home at 11:30 a.m. and ridden his bicycle to the American River Park, where he met an acquaintance, Anton. They bought some beer and went to Anton’s house, where another friend met them. The three rode their bicycles back to the park and smoked marijuana and continued to drink beer.

Defendant drank four tall beers and three 12-ounce cans of beer. About 8:30 p.m. they parted, and defendant rode his bicycle to a vista point. He saw Sean Dannehl riding his bicycle towards Sunrise Boulevard, commenting to Agent Hickey, “I knew right then I was going to stop him and kill him.” He chased after Sean, ramming Sean’s bicycle with his own. When Sean fell off his bicycle, defendant grabbed his arm and led him to a large tree. Sean cooperated, causing defendant to want to humiliate him, over Sean’s pleas that defendant not hurt him. Defendant forced Sean to take off his clothes and put them in a pile.

A two-by-four lay in the area; defendant put it over Sean’s eyes as he lay on his back. Defendant was carrying an electrician’s instrument with a pick, which he thrust into Sean’s chest, near his heart. After Sean protested that defendant had promised not to hurt him, defendant put a hand over his mouth and stabbed him again, causing the blade of the instrument to separate from the handle. Defendant retrieved the blade, screwed it back into the handle and stabbed Sean in the eyes. He then rode his bicycle home, removing the handle from the pick along the way and discarding the pieces separately.

At home, defendant washed his clothes and buried his bloody socks in a flowerbed near a library three blocks from his house. He signed a written statement incorporating his confession, drew a map of the crime scene, and gave investigators a sketch of his pick tool. 2. Defense case in mitigation The defense presented the testimony of a forensic psychiatrist, George Wilkinson, M.D., who had been appointed by the court on two occasions to evaluate defendant’s competency to stand trial. Dr.

Wilkinson had reviewed records of defendant’s treatment in correctional mental health facilities, as well as police and school reports, and testified regarding his observations of defendant’s behavior, personality and thought processes, his diagnoses of defendant’s mental condition, and his conclusions regarding how that condition had worsened over the two years during which he performed his evaluations. Based on his initial evaluation in 1987, Dr. Wilkinson believed defendant was not psychotic but had experienced psychotic episodes in the past; also, he was manipulative and malingering to some degree.

Accordingly, Dr. Wilkinson diagnosed defendant as having antisocial personality disorder with transient psychotic episodes. Later contacts with defendant, who by then was relating obviously delusional thoughts and engaging in bizarre behavior, caused Dr. Wilkinson to alter his diagnosis to paranoid schizophrenia with antisocial personality traits. Dr. Wilkinson estimated defendant’s intelligence quotient to be low normal, or no higher than 90. By judicial notice, the jury was informed that the defense in this case had never entered a plea of not guilty by reason of insanity. 3.

Rebuttal Psychiatrist James Missett, testified that in October 1986 he examined defendant on two occasions after obtaining a waiver of constitutional rights. Defendant acknowledged that before he killed John Davies he had long wondered what it would be like to kill another human being. Dr. Missett noted that defendant’s mental processes after the Davies homicide were clear enough to enable him to take steps to avoid being caught, such as washing up and disposing of his bloodstained clothing and denying any knowledge of John’s whereabouts to the Davies family. Dr.

Missett diagnosed defendant as having, at the time of all three murders and since, a mixed personality disorder with antisocial, borderline and narcissistic traits, and sexual sadism. He saw no evidence to support a diagnosis of paranoid schizophrenia. Dr. Missett observed defendant during a May 1988 competency trial and interviewed him to evaluate his competency in July 1989 (see post, at pp. 881-882, concerning events leading to the competency proceedings), at which time defendant appeared to be consciously feigning mental illness.

Although at times defendant gave candid and straightforward responses, at other times he disrupted the interview with gibberish and refused to discuss details of the killings. At one point he smiled at and maintained eye contact with Dr. Missett, unlike true schizophrenics, who characteristically are withdrawn. Dr. Missett concluded defendant had “a little mental illness . . . and a lot of malingering.” Dr.

Missett characterized defendant’s behavior toward him and defense counsel, as well as defendant’s three murders and other assaults, as involving his hating and acting contemptuously towards persons he also in some way liked, respected or admired. Although defendant’s attraction to and hatred of prepubescent boys were outside his control, his devious planning and avoidance of detection for long stretches of time were within his control. To Dr. Missett, defendant’s criminal conduct reflected innate evil rather than mental illness. Dr.

Missett offered no explanation for why defendant could ingest near-maximum doses of antipsychotic medications and display none of the sleepiness that would be expected if he were merely malingering. 4.

Surrebuttal In lieu of testimony, the jury heard the parties’ stipulation that, if he were called to testify, Defense Counsel Douglas Gray would state that he was first appointed in July 1988, defendant having previously been represented by other attorneys; that from July to September 1988 defendant cooperated with Gray and discussed various aspects of the case with him; that from September 1988 through April 1989 defendant refused to cooperate with Gray by refusing to meet or discuss the case with him; that in April 1989 defendant began to cooperate with him selectively but still refused to discuss certain topics such as penalty and legal issues; that after a competency trial and during the trial of the offenses defendant refused to cooperate with him; that on several occasions in open court defendant expressed a desire to plead guilty to the charges; and that no such plea had been entered on his behalf.

H. ANALYSIS A. Competency Issues 1. Factual background At several points after defendant was charged in this case and before his trial began, concerns arose over his competency to stand trial. We outline the relevant events. On May 27, 1987, one month after the information was filed, defendant was admitted to the psychiatric inpatient facility at Harold D. Chope Community Hospital (Chope Hospital) as gravely disabled under Welfare and Institutions Code

section 5150 because he appeared to be experiencing delusions and hallucinations and wanted to kill himself. His diagnosis on admission was atypical psychosis. On June 2, 1987, he was discharged back to the San Mateo County Jail with a diagnosis of acute paranoid disorder. A little more than five months later, on November 3, 1987, the trial court suspended criminal proceedings and appointed two psychiatrists, Dr. Charles Casella and Dr. George Wilkinson, to examine defendant to determine his competence to stand trial. (§§ 1367, 1368.) The court also appointed a psychologist, Dr. Alfred Fricke, to perform tests.

All three issued reports and a competency hearing was set. Shortly before the hearing, on May 6, 1988, defendant was again admitted to Chope Hospital under Welfare and Institutions Code

section 5150 because his behavior was loud and bizarre, he was agitated and delusional, and he was exhibiting grandiose and paranoid ideas, looseness of associations, and disorganized thinking. His diagnosis on admission again was atypical psychosis. On May 16, 1988, he was discharged back to San Mateo County Jail with a diagnosis of chronic schizophrenia with acute exacerbation. That same day, his first competency hearing began, a jury having been waived. On May 19, 1988, the trial court found defendant competent to stand trial.

On June 17, 1988, the trial court relieved Defense Attorneys Philip Barnett and Vincent O’Malley at defendant’s request (see People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]) and denied defendant’s motion for self-representation (see Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]). A week later, Trial Counsel Douglas Gray appeared on behalf of defendant. Eight months later, on February 16, 1989, defendant was again admitted to Chope Hospital under Welfare and Institutions Code

section 5150 because he was exhibiting increasingly bizarre behavior, was delusional with loose associations and disorganized thinking, and was eating little and not showering. On admission, he was diagnosed with chronic paranoid schizophrenia, with acute exacerbation. That same day, counsel declared a doubt as to defendant’s competency, which the trial court treated as a motion under Penal Code

section 1367 and denied. At the prosecution’s suggestion, the court appointed Dr. Wilkinson under Evidence Code

section 730 to determine whether there had been any change in defendant’s condition since the May 1988 competency finding. On March 8, 1989, at the request of the prosecution and the defense, the court again suspended criminal proceedings under

section 1367 and appointed a second psychiatrist, Dr. Roland Levy. Dr. Wilkinson’s and Dr. Levy’s reports were received on March 29, 1989. The prosecution requested a jury trial on the question of defendant’s competence. In light of Defense Counsel Gray’s status as a witness, Gordon Rockhill was associated as counsel for the second competency hearing, which began on July 24, 1989. On August 3, 1989, the jury returned a finding of competency. Some two and a half months later, on October 16, 1989, jury selection began in defendant’s criminal trial. 2. Claims pertaining to 1989 competency trial a.

Assertedly erroneous admission of evidence Defendant contends the trial court erred in allowing, over defense objections at various points in the competency trial, irrelevant discussion and evidence of the factual details of the charged offenses. (Evid. Code, § 350.) Defendant further argues that any relevancy of these details was substantially outweighed by the prejudice they caused him before the competency jury, in violation of Evidence Code

section 352 and his right to due process of law under the state and federal Constitutions. Defendant complains that, during voir dire, the prosecutor asked prospective jurors, “[I]f it were to come out during the testimony of the psychiatrists that because there are multiple murder charges against Jon Dunkle, some other judge and some other jury down the road—not you, nothing for you to consider . . . may have to consider the death penalty, do you have such strong feelings, one way or the other,” that it would affect them in the competency trial.

The prosecutor later asked similar questions of other prospective jurors. Defense counsel objected that the penalty in the criminal trial was irrelevant to and remote from the issues in the competency proceeding, and that competency jurors should not be considering the issue of possible penalties. The trial court allowed the prosecutor to inquire. There was no error. A trial court enjoys wide latitude in determining what questions may be asked on voir dire, and its exercise of discretion in this respect forms grounds for reversal only when it renders the trial fundamentally unfair. (People v.

Cleveland (2004) 32 Cal.4th 704, 737 [11 Cal.Rptr.3d 236, 86 P.3d 302].) Contrary to defendant’s assertion, the subject of penalty was relevant to the competency trial, in that the psychiatric experts’ testimony touched on defendant’s understanding of the potential outcome of the criminal proceedings and his possible motivation to delay them. Defendant suffered no undue prejudice by the prosecutor’s mention of the potential penalty during voir dire. (See People v. Padilla (1995) 11 Cal.4th 891, 925 [47 Cal.Rptr.2d 426, 906 P.2d 388] [for purposes of Evidence Code

section 352, “undue” prejudice stems from evidence that “ ‘ “tends to evoke an emotional bias against the defendant as an individual” ’ ” and that has a negligible bearing on the issues, “not the prejudice ‘that naturally flows from relevant, highly probative evidence’ ”].) Defendant’s due process claim lacks merit for the same reasons. Defendant further complains of the admission of references to the uncharged killing of Sean Dannehl. First, defendant notes the prosecutor, out of the presence of the jury, stated that Dr. Missett and Dr.

Wilkinson had discussed the Dannehl homicide with defendant and that he intended to bring up evidence pertaining to that offense because defendant would be “dealing with [it] during the penalty phase.” Defense counsel objected on grounds of irrelevancy and undue prejudice. The trial court ruled inadmissible any mention of the Dannehl homicide unless it became clear that the probative value of such evidence outweighed its prejudicial effect.

Detective Robert Bell, a homicide investigator in the Sacramento County Sheriff’s Department who had worked on the Dannehl case, later testified for the prosecution without mentioning that case. Dr. Levy and Dr. Missett, in their respective testimony, referred to the existence of the Dannehl homicide, without describing any details of the offense. The determination of the extent of a defendant’s ability rationally to assist counsel in presenting a penalty defense may necessitate reference to evidence of uncharged offenses likely to be presented to the penalty phase jury. (See People v.

Turner (2004) 34 Cal.4th 406, 427 [20 Cal.Rptr.3d 182, 99 P.3d 505]; People v. Medina (1990) 51 Cal.3d 870, 887-888 [274 Cal.Rptr. 849, 799 P.2d 1282]; People v. Samuel (1981) 29 Cal.3d 489, 494-496 [174 Cal.Rptr. 684, 629 P.2d 485].) Here, Dr. Missett testified that during the competency examination, defendant spontaneously referred to Sean Dannehl but refused to discuss the details of the offense; probing a defendant’s understanding of those details, Dr. Missett noted, was relevant to the competency determination. We therefore see no error in the references to the Dannehl homicide.

Defendant additionally argues the prosecutor improperly brought the facts of the Turner and Davies homicides before the jury, causing prejudice requiring reversal of the judgment. During his opening statement to the competency jury, the prosecutor summarized the evidence of those offenses; when defense counsel objected, the prosecutor explained the evidence would show that defendant remembered what he had done in the course of the killings and related it to the evaluators.

As promised, the prosecutor then presented the testimony of Belmont Police Officer Joseph Farmer, who related the substance of defendant’s 1986 confessions to the Davies and Turner homicides and the Murphy attempted murder.

Specifically, Farmer testified defendant said that in 1984 he approached Lance Turner on a trail, stabbed him with a knife in the throat, stomach and chest, and dragged the body off the trail into the bushes; in November 1981 he invited John Davies to have some beer and listen to his car stereo, and then at Edgewood Park took a knife from his car, walked up a hillside with John, stabbed him in the back and throat, strangled him, hit him over the head with a rock, and pushed the body 100 feet off the side of the hill; and in 1982 he deliberately ran Stephen Murphy over with his car, put him into the car, drove him to another undeveloped part of Belmont and left him there.

Defendant contends these facts were irrelevant to the issues involved in the competency trial, and that he never contested (as by a claim of amnesia or organic brain damage) that he remembered his actions. Contrary to defendant’s contention, the evidence of the homicides and attempted homicide served a legitimate purpose in the competency trial: to convey to the jurors the essence of the case against which defendant would have to defend himself, in order that they could assess his understanding of the charges and ability to assist counsel in his defense.

The evidence, moreover, illuminated defendant’s failure to discuss the facts of the offenses with the mental health professionals appointed or retained to evaluate him, as contrasted with his earlier, more forthcoming admissions to law enforcement officers. This, in turn, tended to support the prosecution’s contention that defendant could rationally assist counsel, if he so chose. In any event, a minimum of time was spent on the facts of the homicides, and the jurors were instructed not to be biased against the defendant, or swayed by sympathy, passion, prejudice, or the possible consequences of their verdict.

Because the trial court did not abuse its discretion in permitting references to the facts of the Turner and Davies homicides to come before the jury, defendant was not denied due process. (Cf. People v. Turner, supra, 34 Cal.4th at p. 427.) b. Sufficiency of evidence to support competency finding Defendant contends insufficient evidence supported the jury’s finding of his competency, that he was in fact incompetent, and that his trial while incompetent violated state law and his federal constitutional rights of due process, to the assistance of counsel and to be present during the proceedings against him.

A person cannot be tried or sentenced while mentally incompetent. (§ 1367, subd. (a).) A defendant is mentally incompetent to stand trial if, as a result of mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Ibid.; see also Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2d 824, 80 S.Ct. 788].) A defendant’s trial while incompetent violates state law and federal due process guarantees. (Pate v. Robinson (1966) 383 U.S. 375, 385 [15 L.Ed.2d 815, 86 S.Ct. 836]; People v.

Pennington (1967) 66 Cal.2d 508, 516-517 [58 Cal.Rptr. 374, 426 P.2d 942].) A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence. (§ 1369, subd. (f); People v. Medina, supra, 51 Cal.3d at pp. 881-886; see Medina v. California (1992) 505 U.S. 437, 448-451 [120 L.Ed.2d 353, 112 S.Ct. 2572] [placing burden on defendant to prove incompetence does not violate due process].) On appeal, the reviewing court determines whether substantial evidence, viewed in the light most favorable to the verdict, supports the finding on competency. (People v.

Marshall (1997) 15 Cal.4th 1, 31 [61 Cal.Rptr.2d 84, 931 P.2d 262].) Evidence is substantial if it is reasonable, credible and of solid value. (Ibid.) The jury heard this evidence during the 1989 competency proceedings: Court-appointed Psychiatrist Roland Levy examined defendant for 45 minutes on March 21, 1989, and concluded he was incompetent. Dr.

Levy reported that defendant displayed affect inappropriate to the content of his conversation and spoke of how a computer, apparently connected to the FBI, influenced him and was responsible for the killings, but wandered off that subject and began to talk about such matters as organized crime, government control and working for secret agencies. Dr. Levy suspected defendant might be experiencing auditory hallucinations and concluded he could not distinguish his delusions from reality.

Defendant’s delusions had a diffuse quality, while another person with better organized paranoid schizophrenia could present a delusion in such a way as to make it almost believable. Dr. Levy considered and rejected the possibility that defendant was faking mental illness, noting the only deception defendant seemed to be practicing was his overt denial that he was mentally ill. Dr. Levy diagnosed defendant as suffering from chronic schizophrenia with paranoid traits.

He observed that defendant was reacting well to the antipsychotic medication Navane at a dosage that would cause a nonpsychotic person to feel slow and unable to think. On July 16, 1989, defendant met with Dr. Levy for 45 minutes; the next day, he refused to meet with him. The defense then called Psychiatrist James Missett, who had examined defendant at the prosecution’s request. Dr. Missett met with defendant for 45 minutes on October 7, 1986, and five hours on October 13, 1986; on July 25, 1989, he observed defendant during a 90-minute court hearing and, on another occasion, for 90 minutes in jail. Dr.

Missett diagnosed defendant as having antisocial and borderline personality disorders and sexual sadism; he ruled out a diagnosis of schizophrenia, characterizing defendant’s symptoms as inconsistent with a diagnosis of schizophrenia and his delusions as having a “psychosis of the day” quality. Dr. Missett believed defendant was malingering and had fooled other psychiatrists who had arrived at different diagnoses.

He concluded defendant obtained gratification from “jerking people around.” The defense also called Psychiatrist George Wilkinson, whom the court had appointed to examine defendant in connection with the competency proceedings. Dr. Wilkinson examined defendant on several occasions, the first of them on May 27, 1987, when he committed involuntarily defendant, who was acutely psychotic, to Chope Hospital after an emergency referral by jail staff. His next examination of defendant, lasting more than 90 minutes, occurred on January 5, 1988, when defendant reported experiencing hallucinations. Dr.

Wilkinson felt that defendant, who admitted the truth of his confessions but refused to discuss the facts of his case, was manipulating him. On January 26, 1988, Dr. Wilkinson again examined defendant, finding him competent but recommending an evaluation at Atascadero State Hospital to settle the question of whether he was malingering. (The recommended evaluation did not occur.) After defendant was again committed to Chope Hospital in May 1988, Dr.

Wilkinson examined defendant and concluded that, although he had experienced psychotic episodes, he could still cooperate with counsel and was competent to stand trial. On March 1, 1989, after trial counsel reported deterioration in his relationship with defendant, Dr. Wilkinson attempted to interview defendant, who refused for delusional reasons to come out of his jail cell. Then, after a court appearance on July 7, 1989, Dr. Wilkinson saw defendant for some 45 minutes and found him to be psychotic, with disorganized thinking, loose associations, auditory hallucinations and inappropriate affect. Dr.

Wilkinson’s two later attempts to see defendant failed when defendant stood in his urinal and refused to come out of his cell. Dr. Wilkinson diagnosed defendant as suffering from paranoid schizophrenia, although his symptoms did not fit all the criteria for that illness. He viewed defendant’s manipulation of psychiatrists as a self-protective mechanism to compensate for feelings of humiliation and low self-esteem. At times, however, defendant would get his attempts to manipulate mixed up with his illness. Dr.

Wilkinson noted defendant’s condition had improved when he was taking Navane, consistent with someone who has had a genuine psychotic episode. Dr. Wilkinson agreed with Dr. Levy that defendant lacked the skills to fake a major mental illness completely. He disagreed with Dr. Missett that variability in reported delusions meant the patient was faking; indeed, a lack of variation in such delusions would be more consistent with total faking.

Trial Counsel Douglas Gray testified that defendant initially expressed hostility toward him and disclosed such delusional beliefs as that his former attorney had killed a California Highway Patrol officer and received hundreds of thousands of dollars in bribes, from either organized crime or the government, to stop defendant from pleading guilty. At first defendant only wanted to plead guilty, but later he developed a working relationship with Gray. That relationship faltered as defendant’s mental condition deteriorated in the fall of 1988.

Defendant appeared almost emaciated and had not bathed for some time, and by January 1989 his statements were incomprehensible and disconnected and he began to refuse to see Gray. When Gray initiated competency proceedings, defendant reacted negatively, said he would not take psychotropic medication and did not want to go to Atascadero State Hospital, and declared he was not and had never been mentally ill. On the first day of competency proceedings, defendant wore his jail clothes in compliance with counsel’s tactical decision.

On the second day, defendant angrily said he did not want to wear jail clothes but wanted instead to wear street clothes in order to get a fair trial. Even after being removed to a holding cell, he screamed at his attorneys. Finally defendant agreed to behave in court in exchange for the attorneys’ agreement to permit him to wear street clothes in court. Defendant told Gray he did not want to testify in the competency proceedings because he was embarrassed and shy about answering questions about the psychiatrists, who, he maintained, had lied.

He indicated that if he could confine his testimony to the homicides there would be no problem. The attorneys would not guarantee that, so he did not testify. Attorney Thomas Nolan testified as an expert in what is needed for a client to assist rationally in a capital case.

Nolan testified that if a person is uncommunicative due to mental illness, or wants to plead guilty because a computer was responsible for the crime and refuses to consider an insanity defense, or prefers communicating with the district attorney over his own counsel, or sends letters to sheriff’s deputies without telling his counsel, he is not rationally assisting counsel and is preventing counsel from fulfilling his or her role. The prosecution presented the testimony of several deputy sheriffs, who described their interactions with defendant at court and in jail.

On May 6, 1988, Deputy Sheriff Debra Rosengart was assigned to transport defendant to Chope Hospital. From an area where she could not be seen, Rosengart observed defendant stop talking to himself when she left his sight; when Rosengart reappeared to defendant, she saw him resume talking to himself, only to stop when she told him to do so. While transporting defendant in a van, Rosengart turned on the radio to drown out his ramblings; he stopped talking and began to sing along.

While walking into the hospital, defendant was silent; after Rosengart told him to go along to his evaluation, he resumed talking to himself. Sheriff’s Sergeant Robert Prevot was assigned to the jail in 1987 and 1988 and there had contact with defendant, who was generally very quiet and read and slept a lot. On February 16, 1989, Deputy Sheriff Martin Douglas transported defendant to court. Defendant was quiet until he was called into court, when he started babbling. As soon as defendant left court after his appearance, Douglas noticed he stopped babbling.

Deputy Sheriff William Southward, who sometimes worked in the jail, testified he never saw unusual conduct by defendant. Once Dr. Levy came to visit defendant at his cell; when defendant asserted he did not know the doctor and Southward described him, defendant refused to meet with him. Deputy Sheriff John Quinlan testified that while he was assigned to work in the jail, he never heard defendant make unusual statements.

On three to five occasions Quinlan saw defendant engage in “bizarre” behavior, including refusing to see family members, refusing to come out for recreation, and smearing a substance onto his cell window. Deputy Sheriff David Barrett testified he had known defendant for two years as a result of his jail assignment and had a great deal of contact with him over eight to 12 months. Barrett and defendant conversed about bicycling, movies and television. When the conversation touched on his crimes, defendant spoke about computers.

Defendant told Barrett he had smeared shampoo onto his cell window in order to scare away predatory inmates by making them think he was crazy. Joan Davies was trained to work with persons with dyslexia and spent hundreds of hours, over a four-year period, helping defendant with his reading skills before her son John disappeared. Mrs. Davies attended the trial.

She testified that when the prosecutor, during his opening statement, incorrectly asserted that defendant had lived with the Davies family, defendant turned in his seat, made eye contact with Davies and her husband, and shook his head “no.” Sacramento County Sheriff’s Department Investigator Robert Bell first made contact with defendant in 1984, during the murder investigations; after defendant was arrested, he occasionally contacted Bell. In February 1988, defendant complained to Bell that his attorneys were trying to present a “sham” psychiatric defense in which defendant did not want to participate.

Defendant told Bell he committed the murders because he had received radar transmissions from a large antenna in Russia instructing him to kill. Bell told defendant he was disappointed because defendant had earlier confessed and now seemed to be shirking responsibility. Defendant became quiet and eventually said he wanted to talk about something else. Belmont Police Officer Joseph Farmer testified to the contents of defendant’s 1986 confessions, including the details of the Davies and Turner homicides and the assault on Steve Murphy.

Defendant contends this evidence was insufficient to support the jury’s competency finding. In particular, he urges that Dr. Missett’s opinion—that he was competent and malingering—was contrary to facts of record and to uncontested medical and scientific facts. Here, defendant asserts, the only substantial evidence was that he was psychotic, no evidence to the contrary was presented, and no evidence showed that even if he was psychotic he nevertheless was competent to stand trial. We disagree.

The opinions of the various experts stood in conflict, and in assessing their testimony the jury was entitled to consider that Dr. Missett had more than five hours of contact with defendant in 1986 against which to evaluate his behavior during the 1989 competency proceedings. The jury also heard that Dr. Wilkinson, in two 1988 reports, had found defendant competent and changed his mind after a March 1, 1989, contact that lasted only 15 minutes. Although Dr.

Wilkinson saw defendant again on July 7, 1989, for 45 minutes and found him to be psychotic, he felt less than total (i.e., only 75 to 80 percent) certainty that defendant was incompetent. Dr. Levy had briefer contact with defendant than had Dr. Missett (two 45-minute evaluations), from which the jury could infer that Dr. Missett’s opinion was entitled to greater weight.

Although defendant argues his behavior fit the classic model of incompetency in that—like truly psychotic people—he sometimes insisted he was not mentally ill and refused to see the psychiatrists who were in a position to assist him in avoiding his criminal trial through a finding of incompetency, the jury was entitled to consider that, during his first competency trial the year before, defendant had heard expert witnesses describe the behavior of genuinely psychotic persons and the ways malingerers go wrong in feigning mental illness.

The jury, moreover, was aware that defendant had the opportunity to observe the behavior of psychotic persons while in the locked psychiatric ward at Chope Hospital, and heard Dr. Wilkinson testify that defendant was cunning and manipulative, and derived gratification from frustrating psychiatrists.

Defendant cites evidence that he responded favorably to antipsychotic medications, which only a psychotic person can tolerate without becoming sleepy and clouded in thinking; on Navane, defendant related better to people, was less hostile, had less trouble controlling his impulses, and apparently experienced none of the sedation that would be expected in a nonpsychotic person taking the drug. Defendant also criticizes as scientifically invalid Dr.

Missett’s reliance on a definition of schizophrenia as involving fixed, firm delusions (and his resulting opinion that because the reported details of defendant’s delusional material varied from time to time, he must be making up the material as he went and therefore was malingering), noting that other experts acknowledged the existence of types of schizophrenia involving fluctuating or variable delusions. But whether defendant was in fact mentally ill and, if so, his precise diagnosis was not determinative of his competency. Dr.

Wilkinson testified one can be both paranoid schizophrenic and competent to stand trial. The testimony of Dr. Missett and the lay witnesses describing defendant’s behavior, taken together (see People v. Marshall, supra, 15 Cal.4th at pp. 31-32), provides substantial evidence to support the jury’s finding that defendant understood the nature of the criminal proceedings and had the ability to assist his counsel in a rational manner (§ 1367, subd. (a)). c.

Asserted flaws in CALJIC No. 4.10 and reliability of competency verdict As requested by the parties, the trial court instructed the competency phase jury with CALJIC No. 4.10 as follows: “In this proceeding you must decide whether the defendant is mentally competent to be tried for a criminal offense. [f] This is not a criminal proceeding and the innocence or guilt of the defendant of the criminal charge against him is not involved nor is the question of his legal insanity at the time of the commission of the offense involved, [f] Although on some subjects his mind may be deranged or unsound, a person charged with a criminal offense is deemed mentally competent to be tried for the crime charged against him, if: [f] One, he is capable of understanding the nature and purpose of the proceedings against him; two, he comprehends his own status and condition in reference to such proceedings; and three, he is able to assist his attorney in conducting his own defense in a rational manner. [][] The defendant is presumed to be mentally competent.

The effect of this presumption is to place upon the defendant the burden of proving by a preponderance of the evidence that he is mentally incompetent as a result of a mental disorder.” Defendant contends this instruction was flawed in several respects. The Attorney General urges that trial counsel, by joining in the prosecutor’s request for the instruction, invited any error and that defendant therefore is barred from raising these contentions on appeal.

On the record before us, we cannot say that trial counsel both “ ‘intentionally caused the trial court to err’ ” and did so for “ ‘tactical reasons.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [17 Cal.Rptr.3d 710, 96 P.3d 30].) Reviewing the merits of defendant’s argument, we find no error. First, defendant argues the instruction improperly permitted the jury to find him competent if it believed he had a mental disorder but could be made able to assist his counsel in a rational manner if he were administered antipsychotic medications.

Defendant observes that the evidence—including his own statements and the fact that, once returned to jail after each of his involuntary commitments, he stopped taking the medication he had been compelled to take while in the hospital—indicated he would not voluntarily ingest them. Such a predicate to a competency finding, he contends, would violate both the federal Constitution and state law. He argues that because it cannot be discerned from the general verdict of competency whether the jury based its finding on permissible or impermissible considerations, the judgment cannot stand.

Defendant acknowledges that a recent decision of the United States Supreme Court permits, under certain circumstances, the involuntary administration of antipsychotic medications in order to make a criminal defendant competent to stand trial. (Sell v.

United States (2003) 539 U.S. 166 [156 L.Ed.2d 197, 123 S.Ct. 2174] (Sell).) To be consistent with the federal Constitution’s protection of a defendant’s liberty interest, Sell holds such medication must be medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, necessary to significantly further important governmental trial-related interests, and the trial court must so find. (Sell, supra, 539 U.S. at pp. 180-181, 186; Riggins v.

Nevada (1992) 504 U.S. 127, 135-136 [118 L.Ed.2d 479, 112 S.Ct. 1810] [the Sixth and Fourteenth Amendment rights of a fair trial and due process demand that, when a criminal defendant files a motion to terminate the administration of antipsychotic medication during trial, the state must establish the need for, and medical appropriateness of, the medication]; Washington v.

Harper (1990) 494 U.S. 210, 222-227 [108 L.Ed.2d 178, 110 S.Ct. 1028] [state law that provided convicted prisoners with administrative rather than judicial review of involuntary medication orders adequately protected constitutional liberty interests].) Defendant contends that, because the jury might have believed he would be competent only if medicated, because the trial court here did not make the findings required by Sell, and because the record indicates he was not voluntarily taking medication at the time of the 1989 competency trial, and indeed shows that he refused to take prescribed psychotropic medication after his release from each of his several involuntary commitments to Chope Hospital, the jury’s finding of competency is invalid.

As the Attorney General observes, because this case does not involve an effort to forcibly medicate defendant, the Sell findings were not required. For the same reason, the jury’s finding of competency here is not invalidated by decisions such as Thor v. Superior Court (1993) 5 Cal.4th 725, 732 [21 Cal.Rptr.2d 357, 855 P.2d 375], recognizing the right of convicted prisoners to refuse medical treatment, Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 530, 542 [223 Cal.Rptr. 746], recognizing the right of prisoners to refuse psychotropic medication absent a judicial finding of grave disability, and Riese v. St.

Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1308 [271 Cal.Rptr. 199], recognizing the right of psychiatric patients involuntarily committed to mental health facilities under Welfare and Institutions Code sections 5150 and 5250 to refuse antipsychotic medications absent a judicial determination of their incapacity to make treatment decisions. (See also In re Qawi (2004) 32 Cal.4th 1, 10 [7 Cal.Rptr.3d 780, 81 P.3d 224] [in nonemergency situations, a competent mentally disordered offender cannot be forced to take antipsychotic medications absent a judicial finding of dangerousness].) The evidence tending to show that defendant was competent to stand trial was not predicated on his being administered antipsychotic medications.

As noted, Dr. Missett testified defendant was malingering and not psychotic, and diagnosed defendant instead with antisocial personality disorder and sexual sadism. Jail personnel testified defendant generally behaved normally in custody, supporting an inference that he was not psychotic. Nor did the evidence tending to show that defendant was incompetent directly posit that medication was necessary to make him competent: Dr. Wilkinson merely acknowledged that defendant might regain his competency and previously had benefited from taking antipsychotic medication.

Neither the prosecutor nor defendant’s counsel, in their closing arguments, touched on the subject of defendant’s taking medication during trial or being made competent as a result of medication. Thus, given the state of the evidence and argument, there was no foundation for a jury finding that defendant was competent based on an assumption that he would be administered antipsychotic medication, voluntarily or otherwise.

The trial court therefore had no obligation to instruct the jury as defendant now argues, i.e., that to return a verdict of competency on a theory that defendant was competent only if administered antipsychotic medication, it must find either that he would voluntarily take his medications or that the Sell factors were present. For the same reason, contrary to defendant’s argument the competency verdict is not inherently vague or ambiguous. Defendant next contends that the definition of competency in CALJIC No. 4.10 is inconsistent with that mandated in Dusky v.

United States, supra, 362 U.S. 402, and thus fails to satisfy the requirements of due process. Specifically, he argues that a person who “is able to assist an attorney in conducting his own defense in a rational manner” (CALJIC No. 4.10) does not necessarily have “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ ” as Dusky requires. (Dusky v.

United States, supra, 362 U.S. at p. 402.) Defendant asserts that “consult,” properly understood, means actively to “deliberate together” with counsel, or in other words to “think about or discuss issues and decisions carefully,” concepts assertedly missing from CALJIC No. 4.10. We previously have observed that the language of

section 1367, from which CALJIC No. 4.10 is drawn, “does not match, word for word, that of Dusky. But as the Court of Appeal noted in James H. v. Superior Court (1978) 77 Cal.App.3d 169, 177 [143 Cal.Rptr. 398], ‘To anyone but a hairsplitting semanticist, the two tests are identical.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 816 [42 Cal.Rptr.2d 543, 897 P.2d 481].) Contrary to defendant’s suggestion, CALJIC No. 4.10 requires more for a competency finding than evidence that a defendant is oriented to time and place, has a factual understanding of his circumstances, and recalls the events in question.

Defendant’s point therefore lacks merit. Defendant observes that Medina v. California, supra, 505 U.S. at pages 450-451, held it consistent with due process to place the burden of proof of incompetency on the defendant, in part because defense counsel often has the best informed view concerning a defendant’s inability to assist in his own defense.

Defendant suggests that CALJIC No. 4.10 vitiates the predicate of Medina, and thereby rendered it unconstitutional to impose on him the burden of proof of incompetency, by failing to tell the jury, which might otherwise perceive Gray as a partisan advocate, not to discount his testimony merely because of his status as defendant’s attorney, or otherwise to convey that an attorney is an officer of the court who has special obligations to the court before which he or she appears.

Defendant contends the trial court exacerbated this problem by instructing the jury, using CALJIC Nos. 2.20 and 1.02, to consider possible bias and motive in determining a witness’s credibility and that statements by attorneys are not evidence. If defendant believed CALJIC No. 4.10 required elaboration or clarification in this regard, however, it was incumbent on him to request it. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 122; People v. Cox (1991) 53 Cal.3d 618, 669 [280 Cal.Rptr. 692, 809 P.2d 351]; People v.

Reed (1952) 38 Cal.2d 423, 430 [240 P.2d 590].) And, as discussed below (see post, at pp. 899-900), nothing in the instruction invited the jury to disregard Gray’s testimony. The giving of the instruction did not deny defendant due process. Defendant further contends that CALJIC No. 4.10, as given in this case, was deficient because it failed to give the jury sufficient guidance regarding the various constitutional rights implicated in a criminal trial and failed to tell the jury how much and what kind of assistance a defendant must be able to provide counsel.

As the Attorney General observes, however, the terms contained in CALJIC No. 4.10, including the word “assist,” are ones of ordinary usage. None have a technical meaning peculiar to the law on which the trial court was required to instruct absent a specific request. (People v. Roberge (2003) 29 Cal.4th 979, 988 [129 Cal.Rptr.2d 861, 62 P.3d 97].) If defendant believed the instruction required clarification or elaboration, he had the burden of requesting it. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 122.) Defendant’s contention thus lacks merit. d.

Failure to instruct jury it could find defendant competent only if he would satisfy criteria for competency throughout capital trial Defendant contends that CALJIC No. 4.10, as given, was defective in that it failed to convey to the jury that a defendant must meet the criteria for competency for the duration of the capital proceedings. He argues the instruction permitted the jury to find him competent even if it believed he suffered from schizophrenia and might not have been able to maintain his competency throughout the entire trial.

The asserted error was prejudicial, he maintains, because the record shows his condition waxed and waned, so that he was sometimes lucid but at other times psychotic. As the Attorney General points out, defendant asked the trial court to instruct the jury with CALJIC No. 4.10 and never requested a modification or clarification along these lines. The contention, therefore, is forfeited for appellate purposes. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 122.) In any event, the point lacks merit.

To demand that the jury predict the course of defendant’s competency throughout a capital trial of indeterminate length would be to insist on speculation. More important, as the Attorney General reasons,

section 1368 provides for the institution of additional competency proceedings should a substantial change of circumstances or the emergence of new evidence cast doubt on the earlier finding of competency. Due process requires no more. e. Trial court’s response to jury request for “legal definition" of “rational manner” During deliberations, the jury sent the court a note asking for a “legal definition” of the term “rational manner,” as used in CALJIC No. 4.10. Out of the jury’s presence, the court discussed the request with counsel.

After conducting research, the court and counsel could find neither a judicial decision defining the term nor a dictionary definition to which all parties would agree. Accordingly, the court instructed jurors “to rely upon the common understanding of the meaning of the word,” and reread to them the first paragraph of CALJIC No. 1.01, which directed them not to single out any particular sentence, point or instruction, but to consider the instructions as a whole.

Defendant contends that by referring the jury to the common understanding of the term, the court failed in its duty to assist the jury to understand the issue before it, depriving him of a reliable competency verdict under the Sixth, Eighth and Fourteenth Amendments to the federal Constitution. The Attorney General asserts that defendant forfeited the issue for appellate purposes by approving the trial court’s response, but the record reflects that his trial counsel objected to the court’s proposed response and suggested a different one of his own devising, which the court declined to give.

Counsel was not required to continue to argue the point in order to preserve it for appeal. On the merits, however, we see no reasonable likelihood (People v. Barnett (1998) 17 Cal.4th 1044, 1161 [74 Cal.Rptr.2d 121, 954 P.2d 384]) that the trial court’s response could have led the jury to misunderstand the nature of its task.

That the jury expressed some uncertainty over the “legal definition” of the term “rational manner,” and the parties could not agree on a definition, does not mean that the term has a technical meaning, peculiar to the law, on which the court had an obligation to instruct the jury. (See People v. Howard (1988) 44 Cal.3d 375, 408 [243 Cal.Rptr. 842, 749 P.2d 279].) Thus, the trial court was not remiss in failing to instruct in the manner that defendant now argues. Our conclusion is unaffected by the circumstance that the court followed this advice with a rereading of CALJIC No. 1.01.

Nothing in the instruction would have caused the jury to minimize the importance of the competency instructions. f. Refusal to permit evidence, and failure to instruct, that defendant would still be subject to criminal prosecution if found incompetent Counsel sought to inform the jury, through the testimony of defense experts, what would happen if defendant were found incompetent to stand trial. When counsel asked Dr. Levy whether there was “a way to get Mr. Dunkle competent,” the trial court sustained the prosecutor’s objection on grounds of relevancy. When counsel examined Dr.

Wilkinson about his February 1988 recommendation that defendant be sent to Atascadero State Hospital for further evaluation, asking what “Atascadero” was, the trial court again sustained the prosecutor’s objection on relevancy grounds. During the examination of Trial Counsel Douglas Gray, counsel asked what Gray had told defendant about the procedures occurring after the competency trial. When the prosecutor objected on grounds of relevancy, counsel explained that the information was relevant to defendant’s motivations.

The trial court permitted the testimony, instructing the jury that Gray’s response was admitted only on the question of how much defendant understood of what he was told.

Gray then answered: “I told him if he were found incompetent in these proceedings that the criminal proceedings would remain suspended, [essentially] on hold, and he would be sent to a state hospital, most likely Atascadero State Hospital here in California where he would be treated for his mental condition. [][] I told him that he would be required to take medication, that he would not have a choice as to whether or not to take it, and that efforts would be made to restore him to competency through treatment and medication, and that there would be further proceedings to either evaluate whether or not he had been restored to competency or to simply check and see if he had been, [f] I told him that if he were found to be competent then we would resume the normal criminal proceedings.” The court instructed jurors that “the possible or potential outcome of your verdict... is something that is not to concern you . . . normally a jury is not told what the outcome of their verdict may be, what will happen one way or the other.” Defendant now contends the trial court erred in sustaining the prosecutor’s objections to the questions quoted above and in failing to instruct on the legal consequences of a verdict of incompetency.

We see no abuse of discretion in the trial court’s evidentiary rulings. As the trial court noted, the nature and functions of Atascadero State Hospital were not in issue in this case, and permitting testimony about whether or how defendant could “get competent” would have invited the jury to consider matters outside its function of determining defendant’s competency.

We further conclude that defendant forfeited his claim of instructional error by failing to request the instruction he now contends the trial court should have given, and that, in any event, the trial court did not err in failing to give the instruction on its own motion. Defendant analogizes this case to People v. Moore (1985) 166 Cal.App.3d 540 [211 Cal.Rptr. 856] {Moore).

There, the Court of Appeal held a defendant was entitled to an instruction on the consequences of a verdict of not guilty by reason of insanity, a subject now covered in CALJIC No. 4.01. (166 Cal.App.3d at p. 549.) Acknowledging that a jury should not consider the subject of penalty or punishment in arriving at its decision on a criminal defendant’s guilt or innocence, the Moore court noted that, unlike the significance of either of those verdicts, the consequence of a verdict of insanity is not commonly known to jurors. (Id. at pp. 552-554.) Without an appropriate instruction, the Moore court reasoned, the jury likely would speculate on what might happen to a defendant found not guilty by reason of insanity, and might wrongly assume he or she would walk free, like a defendant found not guilty for other reasons. {Id. at p. 554.) The Moore court concluded “the danger of an erroneous assumption during jury deliberations overshadows any possible invitation to speculate on matters likely to be discussed anyway.” {Ibid.) We have declined to apply Moore outside its original context (People v.

Marks (2003) 31 Cal.4th 197, 222 [2 Cal.Rptr.3d 252, 72 P.3d 1222] [finding no error in the trial court’s refusal of a flawed instruction, requested by the defense, regarding the consequences of a verdict of incompetency]), and do so again here. Because the outcome of any future efforts at restoring a defendant to competency is uncertain at the time when the jury must make its decision on competency, an instruction patterned after Moore and CALJIC No. 4.01 is necessarily speculative. Thus, even had defendant preserved his claim of error in failing to give such an instruction, it would fail. g.

Failure to instruct jury regarding defendant’s admissions Defendant contends the trial court erred prejudicially under state law and violated federal due process principles in failing to instruct the competency phase jury, on its own motion, with CALJIC No. 2.71, to view his admissions with caution. Acknowledging we have held that trial courts are not required to give this instruction without a request in the penalty phase of trial (People v.

Livaditis (1992) 2 Cal.4th 759, 782-784 [9 Cal.Rptr.2d 72, 831 P.2d 297]), he observes we have recently reiterated the rule requiring such an instruction, even absent a request, in the guilt phase (People v. Slaughter (2002) 27 Cal.4th 1187, 1200-1201 [120 Cal.Rptr.2d 477, 47 P.3d 262]). Defendant argues that a competency trial more resembles a guilt trial than it does a penalty trial, in that—unlike a normative sentencing decision—it results in a “binary yes/no” determination, in which an affirmative determination of competency is “always unfavorable” to a defendant.

We disagree. “Defendant’s contrary argument is premised on the false belief a defendant in a competency proceeding has only one interest—to be found incompetent. However, unlike a criminal defendant, whose legal interest lies in being found not guilty whether he is guilty or not, the defendant in a competency proceeding has not only the right not to be tried for a criminal offense when he is incompetent; he has an equally important interest in not being sent to a mental institution with his criminal case unresolved, if he is competent.” (People v.

Stanley, supra, 10 Cal.4th at pp. 805-806.) Our holding in People v. Livaditis, supra, 2 Cal.4th at pages 782-784, recognized that a defendant’s statement, admitted during a penalty trial, may be subject to varying

interpretations and thus may tend either to mitigate or to aggravate; thus, we concluded, at this phase of trial an obligation to instruct, absent a request, is inappropriate. The same reasoning applies here with equal force. Because juries—and witnesses—may disagree over whether a particular communicative act or statement by a defendant reflects competency or its opposite, an instruction cautioning a jury to view a defendant’s admissions, whether direct or adoptive, with caution should be given only on request. Defendant’s contention, consequently, lacks merit. h.

Assertedly misleading instruction on expert testimony The trial court instructed the jury in accordance with CALJIC No. 2.80 as follows: “A duly qualified expert may give an opinion on questions in controversy at a trial. To assist you in deciding such questions, you may consider the opinion with the reasons given for it, if any, by the expert who gives the opinion. [][] You may also consider the qualifications and the credibility of the expert.

You are not bound to accept an expert opinion as conclusive but should give it the weight to which you find it to be entitled.” (See § 1127b [requiring the trial court, when the opinion of any expert is received in evidence, to instruct in substantially the above terms, and stating no further instruction on the subject of opinion evidence need be given].) Defendant contends this instruction was deficient because it merely permitted, but did not require, the jury to consider the factual premises underlying the expert’s opinion.

This omission, he urges, misled the jury to believe that, to be given weight, an expert’s opinion need not be founded on any reasons. Thus, defendant argues, the instruction as given caused the jury to accept uncritically Dr. Missett’s opinion that defendant was malingering rather than incompetent.

He observes that CALJIC No. 2.80 was revised, after his trial, to provide that the jury should consider, in addition to the witness’s qualifications and believability, “the facts or materials upon which each opinion is based, and the reasons for each opinion.” (CALJIC No. 2.80 (6th ed. 1996).) Because the asserted error affected the reliability of the jury’s verdict, he contends, it denied him due process of law under the Fourteenth Amendment to the federal Constitution.

As the Attorney General points out, defendant requested this instruction, without requesting it be modified along the lines he now asserts was necessary. If defendant believed the instruction was incomplete, it was incumbent on him to ask the trial court to clarify or supplement it. (People v. Cole (2004) 33 Cal.4th 1158, 1211 [17 Cal.Rptr.3d 532, 95 P.3d 811].) In any event, we see no reasonable likelihood the jury would have understood the instruction in the manner defendant contends. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 112 S.Ct. 475]; People v.

Clair (1992) 2 Cal.4th 629, 663 [7 Cal.Rptr.2d 564, 828 P.2d 705].) The instruction told the jury it should consider the “reas

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