THE PEOPLE, Plaintiff and Respondent, v. ARTHUR HANS HALVORSEN, Defendant and Appellant, 42 Cal. 4th 379

Opinion WERDEGAR, J. A jury convicted defendant Arthur Hans Halvorsen of two counts of first degree murder (Pen. Code, § 187; unless otherwise specified, all statutory references are to the Penal Code), one count of attempted murder (§§ 187, 664), and one count of assault with a firearm (§ 245, subd. (a)(2)), a lesser included offense of the charged offense of attempted murder. The jury found true allegations that defendant used a firearm in the commission of all of the offenses (§ 12022.5) and multiple-murder special-circumstance allegations relating to the first degree murder counts (§ 190.2, subd. (a)(3)).

After a penalty phase, the jury fixed the penalty at confinement in state prison for life without the possibility of parole for one of the murder counts, but was unable to reach a verdict for the remaining murder count. The trial court declared a mistrial as to that count. After retrial on the penalty for that count, a second jury fixed the penalty at death. The trial court denied defendant’s motion for new trial and application for modification of penalty, and sentenced him accordingly.

This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm defendant’s convictions and noncapital sentences, vacate one of the multiple-murder special-circumstance findings, and reverse the judgment as to the sentence of death. I. FACTUAL BACKGROUND A. Guilt Phase 1.

Summary On Sunday, March 31, 1985, defendant, a 43-year-old self-employed contractor who lived in Long Beach with his wife and two daughters, shot four men in three separate incidents, killing two of them. The prosecution’s theory was that defendant premeditated and deliberated the killings. The defense sought to show that the crimes resulted from the combination of defendant’s mental illness (bipolar disorder), heavy alcohol consumption, and mounting financial pressure. 2.

Shooting of Benjamin Alcala In the first incident, defendant approached an apartment building on Santa Fe Avenue in Long Beach where Benjamin Alcala lived with his wife, his sister, and her husband, Roberto Martinez. Alcala was in the yard, planting flowers and using a knife to dig in the dirt. Defendant confronted Alcala, who did not know defendant but had seen him some days earlier, and asked for Martinez. Alcala told him Martinez was not at home. Defendant walked away, toward the street. Defendant soon returned, holding a handgun. He told Alcala he wanted to go into the house to look for Martinez.

Alcala assented and walked toward the door, leaving the knife in the garden. About four feet from the door, defendant struck Alcala with the gun on the side of his head. As Alcala opened the outer screen door, defendant fired a shot to one side of him. As Alcala opened the inner door, defendant—who was nine or 10 feet behind him—fired again, hitting Alcala near the shoulder on the left side of his back. The bullet exited his right shoulder. Alcala fell to the ground and lost consciousness, but survived the shooting after spending seven days in the hospital. 3.

Murders of Calvin Ferguson and Vicente Perez Calvin Ferguson worked in the vacuum truck business in the Signal Hill area of Los Angeles County, which was known for oil-related businesses. He owned an 18-wheel truck and leased it to the Hammett Vacuum Service, located at the intersection of McDonough and I Streets in Wilmington. Between 5.15 p.m. and 5:30 p.m. on March 31, 1985, Calvin and his brother, Delton Ferguson, went to the Hammett premises to perform mechanical work on Calvin’s truck in preparation for a trip to Ventura.

About 6:00 p.m., Delton was looking at a map book in Calvin’s personal vehicle, having parked his own vehicle some 50 feet to the west of Calvin’s. Defendant drove his yellow pickup truck into the area and yelled to Calvin, while rolling northbound on McDonough. Calvin walked toward defendant’s truck. Within a minute, a shot was fired. Shortly thereafter, Delton looked up and saw Calvin lying on the ground and defendant’s truck pulling away. Delton ran to his brother, who was bleeding from the head.

Vicente Perez’s brown car, which had a 12-foot radio antenna and bore a “911” sticker and a seal with the words “Community Alert Patrol,” pulled up to the side of defendant’s pickup truck soon thereafter. Both vehicles stopped, and defendant and Perez were side by side in their respective vehicles. Defendant leaned out of his truck, extended his arm, and fired his gun. Delton Ferguson heard the shot and saw Perez’s car proceed southbound on McDonough through the intersection with I Street and crash into the fence surrounding a nearby junkyard between I Street and Anaheim Street.

The car’s tires were spinning, and its engine was running fast. As Delton ran to his own vehicle, defendant’s truck made a U-turn and then turned westbound on I Street, driving past Delton. Defendant had a “cold” demeanor as he drove by. (Delton had met defendant twice before the shootings; after viewing a photographic lineup and concluding defendant’s picture could have been that of the shooter, Delton identified defendant at the preliminary hearing and at trial. To Delton’s knowledge, Calvin had never met defendant.

Delton testified there was no hostility between himself and defendant.) Delton parked his vehicle behind Calvin to block traffic, ran to the telephone in Hammett Vacuum Service’s yard, and called the police. An officer responding to the scene found the engine of Perez’s car still running and turned it off; Perez was slumped dead in the seat with his foot lodged against the gas pedal. He had suffered a gunshot entry wound on the left side of his neck with the corresponding exit wound on the right side of his neck.

Calvin Ferguson lay dead in the street, a bullet entry wound above his right upper lip and the corresponding exit wound on the back of his neck. 4. Attempted Murder of Eugene Layton Eugene Layton, a former professional football player, testified that he became acquainted with defendant in the course of Layton’s roofing and long-haul trucking businesses. On various occasions, Layton had purchased from defendant roofing gravel and used refrigerators, as well as discounted soda pop for a youth football league that Layton coached. Layton had never had any physical altercations or problems with defendant.

Within a few months before the March 31, 1985, offenses, defendant had tried to cash a $1,000 check at a bar called Curley’s, which Layton frequented. The bartender, who did not know defendant, refused to cash the check until Layton vouched for him. Later, Layton learned defendant’s check had bounced and, viewing the matter as his responsibility, went to defendant’s house to see that defendant repaid the money. Defendant gave Layton $400 or $600 in cash that day, claiming he had money problems, and eventually repaid the remainder.

At the time of the offenses, Layton testified, there was no outstanding debt between himself and defendant. On the evening of March 31, 1985, Layton was at his home on Vista Street in Long Beach with his 13-year-old son and 10-year-old daughter. He was not expecting any visitors and was in the shower at some point between 7:00 p.m. and 8:00 p.m., when his son told him someone at the door wanted to see him. Layton got out of the shower, put on shorts and a T-shirt, and headed to the front door, where defendant was standing.

Layton, who had not known that defendant knew where he lived, was surprised to see him and told him to wait while he dressed. Layton did not know why defendant had come to his home, but thought perhaps he wanted to borrow money or arrange a business transaction. Layton walked toward his bedroom, but then felt “strange” and turned around. Defendant, who had not said anything, was standing about five to six feet behind him.

When Layton asked what he was doing, defendant raised a gun and said: “You’re dead, Gene, you’re dead.” As Layton asked why, defendant shot him in the left side of his upper chest from a distance of less than three feet. The shot knocked Layton backward two or three feet into the wall. Layton screamed for his children to leave the house and was grabbing for defendant when defendant fired a second shot, hitting Layton near the right nipple. Layton, who was six feet five inches tall and weighed about 270 pounds, pushed defendant backward into a china cabinet in the dining room, smashing a glass pane.

Defendant and Layton lay on the broken glass. Layton pinned defendant down by the throat and grabbed defendant’s gun with his left hand. He pulled the trigger two or three times but the gun did not fire, so he let go of it. Layton grabbed a piece of broken glass and cut defendant’s throat. Defendant said: “You got me, Gene. I’m dead. I’m dead.” Believing he had killed defendant, Layton managed to crawl to the front door of the house, across the lawn, and to the sidewalk, where paramedics treated him. Layton later was admitted to the hospital and underwent surgery. 5. Defense Case a.

Defendant’s deterioration before the shootings The defense called several members of defendant’s family to testify about how defendant’s behavior had changed in the period preceding the offenses. Amalia Diaz Halvorsen, defendant’s wife, testified that although defendant drank alcohol infrequently when they first met, beginning two years before the shootings his drinking increased. He drank beer, whiskey, and wine and drank every day. He began to use foul language, which he had not done before, and experienced memory lapses.

A few weeks before the shootings, defendant was drinking more and became drunk nearly every night. Although he was not violent toward Amalia or their daughters, he would throw things around the house. Defendant was tense, nervous, and restless and slept little; he worked long hours every day of the week. Defendant had been deeply upset to learn, a few months before the shootings, that a cousin had committed suicide because defendant had failed to repay a debt he owed him. One night, a month or two before the offenses, defendant awoke screaming that someone was coming to get him.

A few weeks before the offenses, defendant, who had not spanked their daughters since they were young, hit his stepdaughter Meri in the face with his fist when she “smart-mouthed” him in response to his questioning about her alcohol-related arrest. On March 22, 1985, some nine days before the shootings, Amalia and defendant signed papers to obtain a $16,000 loan from a man named Wendell West, putting up their house and everything they owned as security. They were obligated to pay West $30,000, plus 10 percent interest, on April 21, 1985.

Brandy Halvorsen, 22 years old and a senior at California State University, Long Beach, at the time of trial, testified that in March 1985 she was living at her parents’ home on Stanton Place. Previously, at the age of 17, she had moved out. Brandy testified that when she returned to the family home some two months before the offenses, defendant, her stepfather, was not the same; he seemed to become angry at anything, his behavior was unpredictable, and he would become verbally abusive to her and her sister Meri when he drank.

Berdecia (also known as Clara) Diaz, defendant’s mother-in-law, testified that for eight years she and her husband had lived next door to Amalia and defendant. Defendant had helped them with household tasks and had lent them money to buy their house. But in February and March 1985, defendant seemed to change; he was nervous, rarely came to visit as he had before, and was not in as good a mood or as affectionate as he had been before. Herbert Ellsworth was married to a sister of Amalia Halvorsen. About two weeks before defendant was arrested, he asked Ellsworth for a loan of $1,500.

Ellsworth was unable to lend the money. Defendant was pleasant, but avoided eye contact and looked nervous, as if he were under stress. b. Events of March 31, 1985 Amalia Halvorsen testified that on March 31, defendant left the house at 6:00 a.m., returned at 9:30 a.m., and then left again. She expected him home at 6:00 p.m. that evening for a dinner engagement with Wendell West and his wife. West called several times that day to see if defendant was home in order to confirm their dinner plans. Finally West told Amalia to tell defendant they would get together another day.

William Destro testified that on a Sunday in March 1985, from sometime between noon and 1:00 p.m. to about 5:00 p.m., he played pool and discussed a possible business deal with defendant at the Anchor Inn, a bar in Long Beach. When Destro first saw defendant, defendant’s speech was slurred and he appeared to have been drinking; defendant drank beer throughout the afternoon. Destro wanted to buy 100 gold chains from defendant at $400 each and resell them at a profit. Defendant indicated the chains were on a ship in the harbor.

Both defendant and Destro were to put up substantial deposits to get a sample of 10 to 15 chains, which Destro would have tested the next day. If the chains proved to be of the quality Destro desired, he would purchase the balance of the 100 chains. Defendant’s share of the deposit money was in checks, a handful of which Destro saw, and which defendant asked the bartender at the Anchor Inn to cash. The bartender, who was Destro’s wife, told defendant she did not have authority to cash a $1,500 check and tried to contact the manager for approval.

Over the course of four hours, while waiting for the manager to arrive and approve the transaction, Destro and defendant played about 10 games of pool, eventually playing for double or nothing. Destro testified he won all of the games, and by the end of the afternoon defendant owed him $9,000. Defendant behaved in an increasingly loud, erratic fashion, slapping his pool cue against the table and cursing, kicking the pool table, and pushing barstools. His behavior seemed out of proportion to the circumstances.

People at the bar told defendant to calm down and warned Destro that defendant “was the kind of fellow that you don’t want to beat at pool.” Several times Destro told defendant to forget about the wager, but defendant would insist on playing another game to get even. As the afternoon wore on, Destro came to believe he had wasted his time because defendant did not have the money for the deal. Destro left the Anchor Inn with his wife about 5:30 p.m. or 6:00 p.m. Destro felt bad about beating defendant at pool because defendant was intoxicated, and he told defendant to forget about the $9,000 debt.

Defendant insisted he would pay Destro when he got his checks cashed. Destro was certain defendant was the person he had met at the bar because, when he returned to the Anchor Inn a couple of days later, the manager showed him a newspaper

article about the shootings. About 8:00 p.m. or 9:00 p.m. on the evening of the shootings, Amalia Halvorsen received a telephone call from a doctor, who informed her that defendant was in the hospital. He had been stabbed in the neck and was in critical condition. c. Toxicologist’s testimony Ernest Lykissa, Ph.D., chief toxicologist at Long Beach Memorial Medical Center, testified that defendant’s blood-alcohol level at 7:40 p.m. on March 31, 1985, was .154 percent. A man weighing 150 pounds would have to drink seven drinks during the two hours before testing to achieve this level.

For a man weighing 180 pounds who had stopped drinking two hours before the test, this level would require the consumption of 10 drinks. Dr. Lykissa testified that alcohol consumption affects cognition, social behavior, and moral values; lowers inhibitions; and has an impact on coordination, reflexes, and judgment. At a blood-alcohol level of .10 percent, the skills needed to operate a car are highly impaired. Although the effects of alcohol vary with each individual, in most instances a blood-alcohol level of .154 percent causes a grave degree of impairment.

A habitual drinker may appear to behave more normally while intoxicated than a casual drinker because the former has learned ways to mask his impairment, but his judgment is nevertheless impaired. d. Psychiatrist’s testimony William Vicary, M.D., a forensic psychiatrist, interviewed defendant in jail several times and reviewed numerous records, including reports from a psychiatrist at the University of California, Los Angeles (UCLA), and Psychologist Michael Maloney, in connection with defendant’s case. Dr.

Vicary agreed with the UCLA psychiatrist’s opinion that defendant was suffering from manic depression, also known as bipolar disorder. Dr. Vicary believed defendant had a psychotic disorder characterized by paranoia, as well as symptoms of depression. In Dr. Vicary’s opinion, defendant had been developing this disorder for the two to four years before the shootings and continued to suffer from it at the time of trial. Dr. Vicary agreed with Dr.

Maloney’s conclusion that defendant was “faking well,” i.e., attempting to portray himself as mentally healthy, and did not believe defendant was malingering as to his bipolar symptoms. Dr. Vicary testified that defendant had a significant family history of mental illness, with nine relatives suffering from serious mental problems. Defendant’s mother had suffered from a psychotic illness since her twenties, had attempted suicide and had been hospitalized for mental illness several times, and at the time of trial was committed to an institution.

Defendant’s older brother suffered from a psychotic mental illness and had been hospitalized. An uncle had committed suicide. A second cousin also had a psychotic mental illness and had committed suicide. Two paternal half brothers had histories of alcohol abuse. Dr. Vicary testified that defendant’s alcohol use exacerbated his mental illness. Persons with manic depression often use alcohol to self-medicate by “mellowing out” their agitation and anxiety, but because alcohol is a central nervous system depressant, in the long run it makes their symptoms worse. Dr.

Vicary believed defendant was using alcohol in an unconscious effort to calm himself and, although alcohol did not cause defendant’s psychosis, it made him more likely to act on the basis of his paranoid ideas. Dr. Vicary reported that defendant had become extremely interested in religion while incarcerated. Defendant spent virtually all of his time reading the Bible, and he tried to convert Dr. Vicary and his trial counsel to his religious beliefs. At first Dr.

Vicary thought defendant’s new interest in religion was that typical of jail inmates, but then saw that it was of such fervor and conviction, to the exclusion of virtually everything else, that it seemed to be part of his mental illness. Dr. Vicary acknowledged that defendant had lied to him, denying his involvement in the Perez and Ferguson shootings, although he had previously admitted responsibility to the UCLA psychiatrist. Defendant also lied to Dr. Vicary in his explanation of the shootings of Alcala and Layton. Dr.

Vicary further acknowledged that financial problems, as well as mental illness, could cause agitation and that if defendant had been threatened by persons who had lent him money, he might have a rational rather than a paranoid reason for awakening with nightmares. Dr. Vicary testified that defendant was psychotic at the time of the shootings, which he believed were part of his agitation and his mental disorder, but over defense counsel’s objection, Dr. Vicary acknowledged he did not believe defendant’s mental illness provided the basis for a psychiatric defense. e.

Defendant’s testimony Defendant testified he made his living by buying stolen equipment and, he claimed, “cutting up” the automobiles of people who could not afford to pay for them. He owned a soda pop distributorship that served as a “front” for his illegal activities. He drank habitually and increasingly in the years before his arrest. He had owned the gun he used in the shootings for about a year and normally kept it fully loaded in his truck at all times.

He had known Eugene Layton since 1979 and “was not on good terms with him,” although Layton “might have thought that he was.” He had sold Layton some $1,500 worth of equipment for which Layton did not immediately pay in full, claiming lack of funds. Defendant intentionally wrote the check for which Layton vouched at Curley’s bar on insufficient funds, testifying he thought getting even with Layton would be fun.

Defendant had been in bankruptcy since 1981, testifying he filed in order to keep creditors from foreclosing on his house, and the bankruptcy was a “scam to get the creditors off [his] back.” Defendant had had several dealings with Wendell West and had no fear of him. In March 1985, defendant had no “major” financial worries, but testified that “when you have greed in your heart, you always have financial worries, [f] Greed never quits; there is no limit.” About March 22, 1985, West lent defendant $16,500, of which $1,500 was a month’s interest.

West wanted several vehicles and the deed to defendant’s house as security for the loan; defendant also executed a bill of sale for $500,000 worth of merchandise in defendant’s three storage yards. If defendant did not repay the loan in full on April 21, 1985, West could take his house as security. Defendant never told West that he was in default on his mortgages. In 1984 or 1985, defendant worked for about one week as a diesel tractor-trailer driver for Hammett Vacuum Service.

Later, defendant conceived a plan to dismantle a 130-foot steel tank on the Marlex refinery property in Signal Hill, haul the steel away, and sell it. The tank held toxic waste, and defendant believed Hammett would illegally remove the waste for a share of the profit from the venture. Defendant told Hammett’s dispatcher that he wanted to see Hammett in order to talk about some business schemes. To get Hammett’s attention, defendant gave the impression that he was going to extort him, telling the dispatcher that unless Hammett gave him $10,000, defendant was going to the police.

Hammett “misunderstood” him, defendant testified. Defendant testified about an incident on March 9, 1985, in which he accused two men of stealing soda from his truck and told them to return the soda within an hour or he would “blow [their] fucking head[s] off,” drawing his gun as he did so. He had seen the men in his yard and believed they took the soda. The police later came and asked defendant about the incident. About a week before March 31, 1985, Layton owed one Ray Vasquez $10,000.

Defendant told Vasquez, who was “dissatisfied” with Layton, that he would “straighten things up.” Defendant learned Layton’s home address by phoning Layton’s wife, lying to her by stating he was a customer, and asking her where she wanted the check sent. He did so in order to shoot and kill Layton. On March 31, defendant left his house around 7:00 a.m., drove his yellow pickup truck to a restaurant near the Long Beach Airport, and met with some men about purchasing stolen equipment.

He bought two generators from them, depositing one at one of his storage yards and taking the other home, where he stayed for about 45 minutes. Defendant next went with his wife to a bank, withdrew a couple of hundred dollars to pay what he owed for the generators, and took his wife back home. One of defendant’s drinking friends, “John John,” had set up a meeting between defendant and William Destro, and defendant went to the Anchor Inn to meet Destro. Defendant was planning to “fence a fortune” in stolen gold that was somewhere in Long Beach, although defendant did not know where.

At the Anchor Inn, defendant drank quite a bit of whiskey and beer. He and Destro played pool for money. Defendant beat Destro, who owed him $6,000 before the last game. Destro won the last game double or nothing, so they were even. Destro lied, according to defendant, when he testified he beat defendant at pool and when he said defendant was drunk and sloppy at the bar. Defendant had about $3,000 in checks with him on March 31, 1985. He was unable to cash a $1,000 check at the bar because the manager did not have that much reserve. But the gold deal was never made because Destro did not produce any cash.

While defendant was at the Anchor Inn, a “dope fiend” named Roberto Martinez, who worked for defendant as a thief and who, like defendant, had “larceny in his blood,” came by. Defendant lent him and his friends $25 or $30. Defendant left the bar about 5:30 p.m. When he stepped outside, he “felt like [he] had just walked into a refrigerator” and as though he were falling backwards into the bar. He had an eerie feeling he had never experienced before. He did not know how much he had had to drink, but he was intoxicated when he left the Anchor Inn.

Going to his truck, he saw that an air compressor that he had told Martinez to put there was not in the truck. He decided to go to Martinez’s house to find out where the compressor was. Defendant took a gun from his truck and went to Martinez’s nearby apartment. Defendant knocked at the door, and Benjamin Alcala answered. Defendant did not recall Alcala holding a knife or an ice pick. Alcala lied when he testified he had a knife and was working outdoors when defendant arrived. Alcala stepped out of the door.

Defendant confronted Alcala, who spoke in a “halting, jerky type English” that angered defendant for some reason. Defendant asked Alcala where Roberto Martinez was. Alcala said he did not know, and defendant thought he was not being truthful and was shielding or hiding Martinez. Defendant pointed the gun at Alcala and fired it once at his midsection from about 18 feet away. He did not intentionally pull the trigger and must have done so accidentally. Alcala’s wife came out of the house, started crying, and went to assist him. When defendant left, he believed Alcala was only superficially wounded.

Alcala was lying when he testified that defendant shot him in the back near his shoulder; the police officer who gave similar testimony was misinformed or lying as well. Defendant did not remember whether he had hit Alcala with the gun. After the shooting, defendant thought to drive to Hammett Vacuum Service, where he had worked for a week as a truck driver. From Alcala’s residence it took three or four minutes to drive to Hammett’s. Defendant did not expect the business to be open or anyone to be there.

Defendant had seen Calvin Ferguson around town a couple of times, but did not know him; he had met Delton Ferguson once or twice. Defendant drove up to McDonough and I Streets, stopped his truck, and saw Calvin Ferguson. Calvin walked to within four feet of defendant and said something to him; defendant could not remember what. Defendant pointed his gun at Calvin’s face from a distance of two to three feet and pulled the trigger, intending to kill him. Defendant testified he had no explanation for why he shot Ferguson. After shooting Ferguson, defendant drove forward on McDonough Street about 50 or 100 feet.

Vicente Perez drove toward defendant and pulled up alongside him, and both men stopped their vehicles. Defendant did not know Perez, but may have recognized him from the area. Perez partially rolled down his window and said something to defendant. Defendant pointed his gun at Perez’s head and pulled the trigger, intending to kill him; he did not know why. Perez slumped over the steering wheel. His foot hit the accelerator, and the car started forward at a high speed and crashed into a pole.

After defendant killed Ferguson and Perez, he was “laughing about it.” He made a U-turn and headed toward the freeway to drive to Layton’s house on Vista Street in Long Beach. He took a roundabout route in order to avoid the police, taking 10 to 15 minutes to get there. Defendant testified that Layton and his associates owed some people about $500,000, and these people were going to pay defendant to collect it for them. He went to Layton’s house to tell him it was time to pay up. Defendant further testified Layton owed one of defendant’s friends $10,000, which he additionally intended to collect.

Defendant also acknowledged he planned to “take care of’ Layton, meaning to kill him. Inconsistently, however, defendant also testified that when he went to Layton’s door he did not intend to kill him, but wanted to wound him and cause him pain. Holding a gun to his side, defendant approached the door and knocked. Initially no one answered. Then one of Layton’s children answered the door and let defendant in. Fifteen seconds after defendant entered the house, he shot Layton in the sternum, saying: “Gene, you’re dead.” Layton came towards defendant and cut his throat twice with glass from a china cabinet.

Layton was on top of defendant, the hole in his chest over defendant’s nose. The only time defendant feared dying during this incident was when he thought he was going to drown in Layton’s blood. After Layton got off of him, defendant walked into the kitchen. Layton followed, so defendant shot him again in the abdomen. Defendant left Layton’s house through the back door and decided to go down the street. An ambulance stopped, and the paramedics put defendant into it, then drove around the block and picked up Layton.

Defendant told the jury: “We were both in the same meat wagon.” When defendant spoke to the police at the hospital, he was intoxicated and intentionally babbled incoherently. He did not recall what he said to the officers who interrogated him, but 90 percent of it was lies.

He tried to “con” the police about having nothing to do with the shootings of Ferguson and Perez, telling them he went from the scene of the Alcala shooting “to Gene’s place, the other guy’s house that I had to shoot.” This was true in part, because Layton had been on defendant’s list of people to shoot, but false in part because it omitted reference to the two fatal shootings. Defendant also lied to the police about having shot Layton in self-defense and about not knowing how many times he had shot him.

The day after the shootings, officers from the Long Beach Police Department interviewed defendant, and he lied in a “blatant” manner about how the killings happened. He also lied about the Alcala shooting. For about a year after the offenses, defendant maintained he had nothing to do with the killings. Until the trial, he lied to everyone other than his wife in claiming that he did not commit the killings. He lied to Dr. Vicary and to his attorney because he was not willing to confide in them. Defendant alluded to his religious beliefs, stating he had tried to read the Bible to Dr.

Vicary and his attorney, but they would not listen. Defendant believed his attorney had been “deceived” because he was raised a Catholic. The prosecutor and the jurors, he said, were also heathens who, like defendant, had been deceived.

Defendant testified he was glad Layton had survived, but stated, in relation to Ferguson and Perez, “I don’t weep for the dead, I weep for the living.” Although he knew murder was wrong, defendant asserted that “[murder] is one of the minor crimes that I have done.” When asked what was worse than murder, defendant answered: “Sacrificing honor and virtue is 100 times worse. [][] There is one thing that is the worst of all that I can think of and that is to ignore the Gospel of Jesus Christ.” 6. Rebuttal Joe Joosten was a mechanic with a small work yard on Cherry Street in Signal Hill.

He had met defendant about a year before he was arrested. Joosten knew Calvin Ferguson, used to see him in the afternoon at a restaurant that defendant frequented in the morning, and once directed him to one of defendant’s storage yards, although Joosten did not know whether Ferguson actually went there. About two weeks before the shootings, Joosten was in defendant’s yellow pickup truck with defendant and noticed a list in the dashboard area with at least 12 names and numbers on it. B. First Penalty Phase The prosecution presented no additional evidence.

In mitigation, the defense presented the testimony of defendant’s aunt, father-in-law, and stepdaughter concerning defendant’s upbringing, his good deeds before the crimes, and his character, respectively. Dr. William Vicary also testified again on defendant’s behalf. As noted above, the jury returned a verdict of life imprisonment without the possibility of parole for the murder of Calvin Ferguson. After seven hours of deliberations, the jury was unable to reach a unanimous verdict for the murder of Vicente Perez, and the trial court declared a mistrial as to that count. C. Penalty Retrial 1.

Prosecution Case The prosecution presented to the new jury substantially the same evidence that it had presented during the guilt phase of defendant’s first trial. 2. Defense Case a. Defendant’s testimony Defendant testified in his own behalf. He admitted shooting Alcala, Ferguson, Perez, and Layton and stated he preferred “the gas chamber” to life imprisonment without the possibility of parole. Defendant acknowledged that on March 22, 1985, he borrowed about $15,000 from Wendell West and gave “everything” he had as security if he failed to repay the loan by April 21.

Although in 1985 he sometimes ran short of money, at the time of his arrest he was functioning and felt “no pain” from his bankruptcy. He routinely drove his yellow pickup truck with a loaded gun in the glove compartment. He was addicted to alcohol and habitually deceived and lied to people. Testifying about the events of March 31, 1985, defendant stated that on that day he bought breakfast for some people at a restaurant, returned home and asked his wife to get money from a bank machine, and unsuccessfully tried to get several checks cashed, including one for $1,000.

He testified he met with William Destro at the Anchor Inn bar about a possible deal involving gold chains, but Destro had no money for the deal. The amount of alcohol defendant drank that day was typical for him or perhaps even less than he ordinarily drank. Defendant and Destro ended up gambling over pool. Defendant denied owing Destro money and claimed that by 4:00 p.m. Destro owed him $5,000. Defendant claimed he played the next game for double or nothing and let Destro win.

Defendant disagreed with Destro’s testimony that he was staggering or slamming barstools around; he may have been “a little bit sloppy,” but he had learned to “maintain a measure of awareness of [his] actions” and did not consider himself “falling down drunk.” When he left the Anchor Inn about 5:00 p.m., defendant experienced a strange sensation, like he was stepping into a refrigerator. Walking to his truck, he saw that some equipment he expected to be there was not.

He had told a man named Roberto, who earlier had come into the Anchor Inn, to put the equipment on his truck, but Roberto had not followed his instructions. Defendant decided to go to Roberto’s apartment, which was across the street from the Anchor Inn, to see what had happened. Thinking Roberto might be drunk with his “homeboys,” defendant took his gun out of his glove compartment. He made no effort to conceal the gun as he approached the apartment. He confronted Benjamin Alcala, struck him with the gun, and shot him. Defendant testified he had no recollection of pulling the trigger.

He claimed he was eight to 10 feet away from Alcala when he shot him, although he acknowledged he had testified in the first trial that he was 18 feet away. When confronted with his statement to police that he was two feet away from Alcala when he shot him, defendant asserted that was a lie. Leaving the vicinity of Alcala’s apartment, defendant drove down Anaheim Street toward Wilmington, turning right onto McDonough Street toward I Street. Around 5:30 p.m., he arrived at Hammett Vacuum Service, where he had briefly worked as a truck driver the previous year. He did not know his purpose in driving to that area.

Defendant knew of Calvin Ferguson and Vicente Perez, but did not know them well and had no bad blood with either of them. From the intersection of McDonough and I Streets, defendant saw Delton .Ferguson sitting in a car and Calvin Ferguson standing next to him. Defendant did not recall yelling at Calvin and thought Calvin had just approached him. He thought Calvin might have said something to him, although he did not remember what it was.

He admitted shooting Calvin and intending to kill him, stating: “When you put a gun in someone’s face and pull the trigger, what else could you reasonably expect.” After shooting Calvin, defendant pulled forward 75 to 100 feet. Another car approached, and defendant stopped his truck. The car stopped; defendant leaned out of his window and shot Perez in the neck, intending to kill him. He laughed after the shooting and watched Perez’s car crash into the fence.

Defendant testified he did not know why he intended to kill Perez, denying he perceived Perez as a threat or that he killed Perez because he was a witness to the Ferguson shooting. Defendant left Hammett Vacuum Service, driving down I Street to the Terminal Island Freeway. He drove to Eugene Layton’s house in Long Beach. He had last seen Layton about three weeks earlier, when Layton had come to his yard about a $1,000 check Layton had vouched for, which had been returned for insufficient funds. Defendant acknowledged he entered Layton’s house intending to shoot him, but denied intending to kill him.

He admitted he had financial problems around the time of the offenses, but claimed he felt “no pain” from his bankruptcy. b. Defendant’s statement With the court’s permission, defendant made a two and one-half hour statement to the jury. He talked about books he had read and songs he had heard in jail; a violent attack on him by five other inmates; and his moral, religious, and philosophical views.

He repeatedly urged the jurors to repent, extolled the Book of Mormon as the word of God, and referred to the Holocaust as “an indicator of what happens to people that do not receive God.” The court then allowed the prosecutor to cross-examine him. Defendant acknowledged his guilt; agreed that he had addressed the jury in part because he did not want another hung jury; and stated that if he had to choose between life imprisonment without parole and the death penalty, he would choose death. When asked whether he was sorry for his actions, defendant said: “I cry for the living, not the dead.” c.

Psychiatric testimony Forensic Psychiatrist Kaushal Sharma, M.D., evaluated defendant to determine whether he was mentally ill and, if so, how his illness related to issues before the jury in the penalty phase. Dr. Sharma testified that defendant was psychotic when he interviewed him and in all likelihood was mentally ill before, during, and after the shootings. He agreed with the UCLA psychiatrist’s diagnosis of defendant as having bipolar disorder, which is characterized by wide mood swings.

In the high, or manic, phase, one with the disorder cannot sleep; has too much energy; becomes irritable, angry, and grandiose; and may be religiously preoccupied. In the low phase, he is depressed and suicidal, may not want to be bothered by anyone, and may fail to take care of his personal appearance and hygiene. Defendant’s self-reported wheeling and dealing was typical of the behavior of a person in the manic phase of the illness. Dr.

Sharma testified that defendant’s habitual alcohol consumption, by removing some of the rational controls he has over his behavior during a manic phase of his illness, would further increase his mental impairment. A transcript of the guilt phase testimony of Toxicologist Ernest Lykissa, Ph.D. (summarized above), was provided to the jury during its deliberations. d. Other testimony William Destro testified about his encounter with defendant at the Anchor Inn on March 31, 1985. His testimony was similar to his testimony at defendant’s first trial.

Defendant’s wife, Amalia Halvorsen, also testified along the lines of her testimony at the first trial. Defendant’s stepdaughter, Meri Halvorsen, age 20, testified that defendant was the only father she had ever known. She had a good relationship with him, although it had deteriorated somewhat during her teenage years. When she was younger, defendant had a good disposition and sense of humor, and did not drink much. In the year before he was arrested, however, he became moody and short-tempered and lost his sense of humor.

He also had started drinking more in 1982 and by 1984 was drinking a lot and working much more than he previously had. After briefly moving out of her parents’ house around Christmas 1984, Meri moved back home and tried to improve her behavior, which had been a bit “wild.” Initially defendant seemed happy, but soon he began drinking and coming home late, losing his temper, criticizing his daughters, and destroying things around the house. On March 10, 1985, Meri was arrested for being drunk in public.

After she was released from jail, defendant, who himself had been drinking, began lecturing her and, when she did not react, hit her in the face with his fist. He had not used physical discipline with her since she was in elementary school. Defendant’s uncle and aunt, William and Zella Collier, testified about defendant’s upbringing in Tennessee and the odd behavior of defendant’s mother, Zella’s sister, Hazel Halvorsen. William testified that Hazel married Hans Halvorsen, who was at least 50 years older, when she was in her twenties.

Zella testified that Hazel and Hans had two children together: Roy Harold, bom in 1940, and defendant, bom in 1942. Zella heard that Hazel neglected her sons’ hygiene, and Hazel’s housekeeping was sporadic. After defendant was grown and left home, Hazel attempted suicide with a shotgun and was committed to a mental hospital. Later Hazel engaged in other strange acts, including one incident in which she was found standing over their mother with a knife, and another in which one of Hazel’s neighbors woke to find Hazel in her apartment, standing over her.

After Zella testified at defendant’s first trial, she briefly visited him in jail. She saw a great change in him; he seemed solemn and troubled, and although he had not previously been particularly religious, he seemed completely focused on her salvation. II. ANALYSIS A. Competency Issues 1. Governing Principles Defendant contends the trial court erred by failing to declare a doubt as to his competency to stand trial and to conduct proceedings under

section 1368, at various stages of the proceedings. The applicable legal principles are well settled. “Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. (§§ 1367, 1368; Drope v. Missouri (1975) 420 U.S. 162, 181 [43 L.Ed.2d 103, 95 S.Ct. 896]; Pate v.

Robinson (1966) 383 U.S. 375, 384-386 [15 L.Ed.2d 815, 86 S.Ct. 836]; People v. Welch (1999) 20 Cal.4th 701, 737-738 [85 Cal.Rptr.2d 203, 976 P.2d 754].) Failure to declare a doubt and to conduct a competency hearing when there is substantial evidence of incompetence requires reversal of the judgment. (Ibid.)” (People v.

Blair (2005) 36 Cal.4th 686, 711 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) Competency under federal law requires sufficient present ability to consult with one’s lawyer with a reasonable degree of rational understanding and a rational and factual understanding of the proceedings against one. (Dusky v.

United States (1960) 362 U.S. 402 [4 L.Ed.2d 824, 80 S.Ct. 788].) Similarly, under state law 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 the defense in a rational manner. (§ 1367.) 2.

Competency During Guilt Phase Defendant first argues that during the guilt phase, the trial court had before it evidence suggesting that he lacked a rational understanding of the proceedings and the ability to assist his counsel, and thus committed reversible error in failing to declare a doubt and order a hearing as to his competency. Defendant cites the testimony of several of his family members that his mood and behavior had changed in the months and weeks before the shootings, including an increase in his drinking of alcohol, with attendant memory lapses, and nightmares and unpredictable conduct.

Defendant also relies on Dr. Vicary’s testimony that he suffered from bipolar disorder and was psychotic at the time of the offenses and continuing until the time of trial. In particular, Dr. Vicary noted that defendant experienced paranoid delusions and “hyperreligiosity,” i.e., a religious fervor of such intensity, to the exclusion of virtually any other interest, that it seemed to be part of his mental illness rather than faith alone. Defendant also, Dr. Vicary observed, distrusted him and tried to convert him and defense counsel to his religious beliefs.

Defendant also points to his own testimony, which he asserts was “filled with tangential responses to the questions of counsel and strange, irrelevant statements, often marked by a seemingly psychosis-induced preoccupation with a newly embraced religion and an obsession with his own and society’s unworthiness.” His testimony, he further notes, frequently undermined the defense case, contradicted that of other witnesses, and was internally inconsistent.

Defendant even made offensive statements about the victims and inflammatory comments about religion and race, referring to Benjamin Alcala and his relatives as “Mexican thieves” and to Eugene Layton as a “gorilla.” As the Attorney General urges, however, defendant’s family members’ testimony regarding his past behavior did not support an inference that defendant was unable to understand the nature of the criminal proceedings or to assist his counsel in a rational manner.

And “[e]ven supposing defendant is correct that the various examples of his rambling, marginally relevant speeches cited in his briefing may constitute evidence of some form of mental illness, the record simply does not show that he lacked an understanding of the nature of the proceedings or the ability to assist in his defense.” (People v. Koontz (2002) 27 Cal.4th 1041, 1064 [119 Cal.Rptr.2d 859, 46 P.3d 335].) As we have recognized, “more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] . . . .” (People v.

Laudermilk (1967) 67 Cal.2d 272, 285 [61 Cal.Rptr. 644, 431 P.2d 228].) Nor did Dr. Vicary’s testimony that defendant suffered from a psychotic mental illness reasonably compel a declaration of a doubt as to his competency; Dr. Vicary himself, in fact, concluded defendant’s version of events was in places false and self-serving, and he believed defendant was competent to testify despite his illness. Accordingly, because there was not substantial evidence of incompetency, the trial court did not err in failing to hold proceedings to determine defendant’s competency during the guilt phase of trial. 3.

Competency Prior to Start of Penalty Retrial Next, defendant contends the trial court’s finding, prior to the start of the penalty retrial, that he was unable to competently represent himself in the retrial should have led the court to declare a doubt as to his competency to proceed at all. We review the relevant portions of the record. On August 25, 1987, the first penalty trial ended in a mistrial on the Perez murder count. The case was continued to September 14, 1987. On the latter date, defense counsel requested a continuance.

The court told defendant that if he waived time for the penalty retrial, he would be beyond the time period within which he was entitled to be sentenced on the noncapital convictions, and asked if he wished to be sentenced immediately on those convictions or wait until after the conclusion of the penalty retrial. Defendant said: “No, no. I refuse that. If they didn’t give me the death penalty or agree to all the charges at once, I refuse that.” The court expressed uncertainty whether defendant’s statement constituted a waiver.

It put the matter over without a waiver in the hope that defense counsel could explain the situation to defendant. On October 6, 1987, the trial court heard and denied a defense motion to bar further proceedings on the grounds of collateral estoppel. Defendant then personally addressed the court, asking for “a complete new trial” with “pro per status” and defense counsel’s assistance.

Defendant spoke of, among other things, alcohol as a drug and sellers of alcohol as “legal drug dealers that you and all the other judges are receiving money in the form of taxes from.” Defendant accused the courts of being “liars and hypocrites” and asked to be allowed to represent himself, saying: “And I will prepare my case to where I have some defense. Not one word was said in my defense of the reason why I have become a murderer. I admit to being a murderer. I got in front of this court and gave you an eyewitness view of what it feels like to be a murderer. A hypocrite can’t reach a decision.

You are a hypocrite, sir.” The court denied defendant’s motion for new trial and gave him an application to proceed in propria persona. The court stated it would appoint Dr. Blake Skrdla under Evidence Code

section 730 to interview defendant and report to the court his opinion as to whether defendant had the mental capacity to represent himself. At a November 2, 1987, hearing, the court discussed Dr. Skrdla’s report. Dr. Skrdla described defendant as “an alert, cooperative, loquacious fully oriented individual who spoke in a loud voice in a noticeably stereotyped tone. Thought processes were rigid, and he was very critical in attitude, with essentially bland affect. Memory was intact, and intelligence was estimated within the average to bright normal range, with ability to think abstractly.

He tended to ramble somewhat in conversation, with occasional tangential remarks, and obvious preoccupation with ethical and philosophical issues. He referred to the [j]udge before whom he had been appearing as a ‘hypocrite,’ and described the attorneys involved as ‘an unrighteous gang—in it only for the money.’ He was taking no medication in custody, and felt he needed none. [1] There was no evidence of overt psychosis, and he denied depression or suicidal ideation.” Dr.

Skrdla concluded: “[Defendant] understands the nature and purpose of the proceedings taken against him, and is currently capable of rational and consistent cooperation with counsel in the presentation of a defense, if motivated to do so. [][] This examiner does not believe that [defendant] has the mental capacity to act as his own attorney at the present time. Although he has sufficient intelligence to understand the legal issues, he is so preoccupied with guilt because of his egocentric, uncaring behavior over the years that it will affect his judgment in the handling of his case.

He tends to perseverate when discussing ethical, religious, and philosophical issues. Should he persist in this vein during his appearance before a jury, it is believed that he would unconsciously compromise and sabotage his case, possibly without intending to do so.

Because of the intense emotional component involved, it is not believed that he is presently capable of being objective in his defense, especially in view of the seriousness of the charges. [f] Hence, it is this examiner’s opinion that [defendant] is not presently emotionally capable of preparing and conducting his own defense in propria persona.” The court denied defendant’s motion for self-representation, reasoning as follows: “Dr.

Skrdla has opined that you do not have the mental capacity to act as an attorney because of a preoccupation with guilt and because of egocentric, uncaring behavior that affects your judgment. I join in that conclusion, having observed your testimony during the first trial and having had so much contact with you during all of the proceedings in this case. I note that when you were testifying and also in court in response to motions that have been made, your answers were often tangential to the issues and rambling to the point that they were really useless.

I think that it’s evident to me that your entire demeanor is self-destructive, and in light of the seriousness of the charges, I feel that I cannot in good conscience in this particular case for the reasons stated permit you to represent yourself.” In support of its ruling, the court also cited Dr. Vicary’s guilt phase testimony. (Dr. Vicary had testified that defendant was psychotic and suffered from bipolar disorder.) On January 5, 1988, defendant unsuccessfully renewed his motion before the same judge. Again on May 2 and May 24, 1988, defendant renewed his motions for self-representation.

In denying the renewed motions, the superior court judges hearing them relied on the denial of his initial motion and the reasons the court had advanced in support thereof. Defendant contends the same evidence that led the trial court to conclude that he was incapable of representing himself during the penalty retrial due to his impaired rationality should have led it to declare a doubt as to his competency and to conduct proceedings under

section 1368. We disagree. In the course of its November 2, 1987, ruling on defendant’s self-representation motion, the trial court explicitly declared it had no doubt regarding defendant’s competence to stand trial. This conclusion was supported by the declaration of Dr. Skrdla, who, as noted above, stated defendant understood the nature and purpose of the proceedings against him and was capable of rational and consistent cooperation with counsel in the presentation of a defense, if he chose to do so. As the Attorney General observes, the standard Dr.

Skrdla was applying was the correct one for the determination of competency to stand trial, and even Dr. Vicary (whose testimony the court alluded to in its ruling) had concluded defendant was competent to stand trial, notwithstanding his diagnosis of defendant as psychotic and having bipolar disorder. In denying the motion, the court cited defendant’s lack of objectivity and the perception that, out of guilt feelings, he might unconsciously sabotage his own defense.

But a lack of objectivity and a possibly self-destructive emotional approach to self-representation does not equate to substantial evidence of incompetence to stand trial. Moreover, as in the guilt phase, the record shows that defendant, despite his “bizarre actions” and “bizarre statements,” understood the proceedings and could assist in his defense. (See People v. Koontz, supra, 27 Cal.4th at p. 1064; People v. Laudermilk, supra, 67 Cal.2d at pp. 283, 285.) The trial court therefore did not err in failing to declare a doubt and institute proceedings under

section 1368. 4. Competency During Penalty Retrial Third, defendant argues that, irrespective of his level of competence at the commencement of the penalty retrial, the trial court erred by failing to declare a doubt as to his competency during the retrial.

Specifically, defendant asserts he acted irrationally in refiising to agree to a continuance sought by his counsel for his own benefit, pending the ruling of the Court of Appeal on a writ petition seeking to bar the penalty retrial on double jeopardy grounds; made bizarre statements during jury selection; gave testimony filled with non sequiturs, rambling and irrelevant responses, and offensive remarks; and delivered a bizarre and incomprehensible monologue before the jury concerning his study of the dictionary, his moral and religious beliefs, his preference for the death penalty over imprisonment for life without parole, and other matters.

Defendant additionally argues the testimony of Psychiatrist Kaushal Sharma showed he was unable to participate rationally in his own defense: Dr. Sharma, who had interviewed defendant three times, agreed with Dr. Vicary that defendant was psychotic and with another psychiatrist who had diagnosed defendant as having bipolar disorder. Dr. Sharma stated, on cross-examination by the prosecutor, that he did not think defendant fully understood that others saw him as strange and crazy when he talked about his religion and similar matters.

Lay witnesses testified during the penalty retrial to defendant’s deteriorating behavior before the commission of the offenses. Defendant also notes that during a conference on jury instructions, he requested the jury be asked their opinion of the proposition “that we have a heavenly father and that we cannot be forgiven unless we forgive.” When the court responded that the jury could not be instructed on religious matters, but only on the law, defendant said: “That doesn’t sound like the law to you then, what I had stated to you? ...

I mean, that is the law of the creator of this world and you and I.” Finally, during his sentencing hearing, defendant gave another statement filled with references to the dictionary and his religion. Defendant asserts the foregoing evidence raised a substantial doubt of his competency to stand trial. We disagree. Nothing in this record suggests that defendant lacked a rational understanding of the roles of the judge, prosecutor, defense counsel, or jury in this case, or the purpose of the proceedings.

That he apparently viewed religious and moral questions as most salient in the normative determination of penalty, and repeatedly sought to bring them to the jury’s attention, does not reflect incompetency; indeed, such matters are commonly thought to be relevant and often are presented in the defense case in mitigation. (See, e.g., People v. Ervin (2000) 22 Cal.4th 48, 67 [91 Cal.Rptr.2d 623, 990 P.2d 506]; People v. Ray (1996) 13 Cal.4th 313, 332 [52 Cal.Rptr.2d 296, 914 P.2d 846]; People v. Payton (1992) 3 Cal.4th 1050, 1069 [13 Cal.Rptr.2d 526, 839 P.2d 1035].) Dr.

Sharma’s testimony regarding defendant’s mental disorders added nothing significant to the information already before the trial court, which we have concluded failed to generate a duty to institute competency proceedings. The trial court therefore did not err in failing to declare a doubt and initiate proceedings under

section 1368 during the penalty retrial. And, as we discuss below (see pp. 431-434, post), the circumstance that the trial court denied defendant’s Faretta motions (see Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]) before the commencement of the penalty retrial (on the stated basis that he was mentally incapable of preparing and conducting his defense in a rational manner) does not undermine this conclusion; the court’s belief that defendant was so preoccupied with guilt feelings that he likely would sabotage his own defense did not reflect any doubt regarding his competency to stand trial as defined in Dusky v. United States, supra, 362 U.S. 402, and

section 1367. B. Issues Pertaining to Guilt Phase

Section 29 Issues Defendant contends his trial was marred by a series of errors involving

section 29, errors that “eviscerated” his mental state defense and deprived him of a fair trial. Specifically, defendant urges that the prosecutor improperly asked a defense witness, Forensic Psychiatrist William Vicary, whether he believed there was sufficient evidence to support a psychiatric defense, eliciting—over defense objection—Vicary’s opinion that although defendant was psychotic and paranoid at the time of the offenses, no evidence supporting a psychiatric defense existed. Defendant further contends the trial court compounded this error by refusing a defense request for a curative instruction, modeled after

section 29, that would have informed the jury that it alone was to decide whether he harbored the requisite mental states and that it could not consider expert testimony purporting to answer that question. These asserted errors, defendant contends, violated several of his rights under the federal Constitution, as well as state law. As noted,

section 29 provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” Thus, neither side may elicit from an expert that a defendant acted with, or lacked, a particular mental state. (People v.

Smithey (1999) 20 Cal.4th 936, 961 [86 Cal.Rptr.2d 243, 978 P.2d 1171].) Defendant contends that while Dr. Vicary did not expressly state that defendant shot the victims with malice aforethought and after premeditation and deliberation, the jury would have understood his testimony that there were “no psychiatric defenses” in this case as the functional equivalent of such an express statement. Even assuming without deciding, as the concurring and dissenting opinion argues, that Dr. Vicary’s testimony on cross-examination violated

section 29, we find no prejudice. It is not reasonably probable that the result would have been more favorable to defendant in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243].) Indeed, we would find any error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) Elsewhere in his testimony Dr. Vicary repeatedly emphasized that the decision whether defendant was guilty of murder or manslaughter was not a medical or psychiatric one, but properly belonged to the jurors, who would know more about the case than he did.

Moreover, Dr. Vicary’s opinion to the effect that defendant’s primary reason for the shootings was his psychotic mental state, specifically his paranoia, was significantly and repeatedly undercut on cross-examination by evidence of which Dr. Vicary conceded he was unaware. For example, Dr. Vicary relied on the fact that a month or two before the murders, defendant woke up screaming, telling his wife to call the police because someone was coming to kill him and his family. Dr. Vicary was unaware defendant had borrowed large sums of money from Wendell West that he was unable to repay.

After reviewing loan agreements reflecting an exorbitant interest rate and other financial documents pertaining to the transactions between West and defendant, documents that defense counsel had not provided to Dr. Vicary before his testimony on direct examination, Vicary agreed that the transactions “smack[ed] of loan sharking,” and he acknowledged that if a person were indebted to another and unable to repay the money, he might legitimately have nightmares and feel someone was out to get him and his family. Dr.

Vicary also relied on defendant’s attempt to extort money from the owner of Hammett Vacuum Service in exchange for not reporting him for dumping toxic waste. Dr. Vicary had either not noticed or not known that two other individuals in their statements had acknowledged the company in fact had previously been cited for dumping toxic waste. After considering this evidence, he acknowledged he had a “totally different outlook” on the extortion scheme. Dr.

Vicary also relied on an alleged March 9, 1985, incident in which defendant drew a gun and demanded two individuals return property they purportedly had stolen or he would “blow [their] fucking head[s] off.” Dr. Vicary acknowledged that the police report concerning this incident, dated after the capital crimes occurred, revealed that defendant told the police he believed the individuals had stolen property from him. Dr.

Vicary agreed that the credibility issues surrounding the incident did not “translate into a conclusion that one side of [the] dispute [was] paranoid”; rather, the incident was simply one “to be measured against all the other circumstances,” although in the absence of “hard and fast” evidence of actual theft (which, given defendant’s admitted failure to keep an inventory of his property, would have been difficult to produce) and the individuals’ expressions of fear and bewilderment at the incident, Vicary adhered to his belief it reflected paranoia on defendant’s part.

In sum, this powerful cross-examination seems far more significant than the one-sentence opinion in Dr. Vicary’s 1985 report. We note, too, that both an instruction (CALJIC No. 2.80) and Dr. Vicary’s testimony informed jurors that it was their decision alone, not the expert’s, whether defendant had the required mental states; the prosecutor echoed the point (“Sir, I have no question with the fact that 12 jurors make the ultimate decision . . .”). Another instruction (CALJIC No. 3.36), moreover, told jurors they could consider, on this question, evidence that defendant had a mental disorder and was intoxicated.

In light of all these circumstances, the assumed error was harmless. For the same reason, although the trial court would not have erred in instructing the jury in the language of

section 29, its refusal to do so did not prejudice defendant. 2. Other Asserted Evidentiary Errors a. Restriction on redirect examination of defense expert psychiatric witness After the prosecutor, in cross-examination of forensic psychiatrist Dr. Vicary, elicited the witness’s opinion that the evidence in defendant’s case did not support any psychiatric defenses, including a defense of insanity (see pt. II.B.L, ante), defense counsel in redirect examination sought to explore Dr. Vicary’s understanding of the legal standard for insanity.

The trial court sustained the prosecutor’s objection to the line of questioning. Defendant contends the trial court violated state evidentiary law (by allowing the introduction of irrelevant and prejudicial evidence during the prosecutor’s cross-examination), as well as defendant’s federal constitutional rights (by inconsistently and arbitrarily restricting his counsel’s redirect examination of Dr. Vicary when it had just permitted the prosecutor to cross-examine him on the same subject).

The Attorney General contends the cross-examination was relevant and that, by failing to object on constitutional grounds to the court’s ruling concerning the scope of redirect examination, defendant has forfeited any constitutional claim for purposes of this appeal. Citing People v. Yeoman, supra, 31 Cal.4th at pages 117-118, 132-133, defendant contends that by calling the trial court’s attention to the irrelevancy of the prosecutor’s line of questioning, he preserved the constitutional claim he now makes.

Assuming for argument’s sake defendant preserved the issue, we conclude the trial court did not err under state or federal law. The issue arose in the following context: During cross-examination, the prosecutor asked Dr. Vicary whether the report he had prepared for defendant’s trial counsel addressed issues other than those relevant to the guilt phase. Eventually the prosecutor elicited the fact Dr. Vicary had considered and rejected a plea of not guilty by reason of insanity. At sidebar, defense counsel asserted that whether Dr.

Vicary thought defendant was insane was irrelevant and inadmissible, and asked what parameters the court would set on such questioning. The court stated the prosecutor had already covered insanity and inquired whether he intended to do more than that. The prosecutor responded he did not. Cross-examination of Dr. Vicary resumed. Defendant complains that despite the colloquy between court and counsel, the prosecutor continued to question Dr. Vicary about the defense of insanity, again eliciting that this case involved no insanity plea.

Defendant contends the prosecutor’s questioning was irrelevant because he never entered a plea of not guilty by reason of insanity, and the issue of a defendant’s legal insanity is bifurcated and tried separately from that of guilt in any event. But as the Attorney General reasons, the prosecutor engaged in the line of questioning that defendant now challenges not in order to demonstrate that Dr. Vicary did not believe defendant was legally insane, but to impeach Dr.

Vicary’s testimony on cross-examination that defense counsel would be incompetent if he did not present a psychiatric defense in the guilt phase, even though Dr. Vicary believed the facts did not support a psychiatric defense to the charges, and to “put in perspective” the fact Dr. Vicary similarly felt the facts did not support a plea of not guilty by reason of insanity. In other words, the prosecutor explored the inconsistency between the defense’s presentation of a psychiatric defense and its nonpresentation of an insanity defense, despite Dr.

Vicary’s disavowal of the validity of both defenses on the facts of this case. The trial court acted within its discretion in precluding defense counsel from questioning Dr. Vicary on redirect examination concerning his understanding of the legal definition of insanity, due to the risk of undue consumption of time and confusion of the issues. (Evid. Code, § 352.) Nevertheless, we note the court permitted defense counsel to suggest to the jury a possible distinction between the psychiatric defense actually presented and the insanity defense not presented, by eliciting Dr.

Vicary’s acknowledgment, on redirect examination, that when a defendant proffers an insanity defense, he bears the burden of persuading the jury he is insane. Defense counsel also elicited from Dr. Vicary testimony reinforcing the principle that the determination whether defendant had the mental state required for the charged offenses was to be made by the jury, not the forensic psychiatrist. We see no possibility that the decision not to allow defense counsel to explore Dr. Vicary’s understanding of the legal definition of insanity, coupled with the admission of Dr.

Vicary’s opinion regarding the viability of an insanity defense, would have misled the jury to conclude Dr. Vicary was asserting defendant suffered from no mental disease or disorder, or otherwise prejudiced defendant. We conclude the trial court did not violate defendant’s constitutional rights by imposing “asymmetrical” evidentiary standards on the parties. b.

Restriction on direct examination of defense expert toxicological witness Defendant argues the trial court erred under state evidentiary law by arbitrarily preventing his trial counsel from asking a defense expert witness, Toxicologist Ernest Lykissa, Ph.D., a hypothetical question that assertedly was not supported by the evidence, while permitting the prosecutor (over defense objection) to ask the same witness a different hypothetical question that was similarly unsupported by the evidence. The Attorney General argues this contention was not preserved by a sufficiently specific objection below.

Although defendant did not cite any specific ground for his objection to the prosecutor’s hypothetical, his objection clearly related back to the earlier discussion the parties had about the propriety of the hypothetical questions the defense had tried to ask Dr. Lykissa, and we are satisfied defendant has preserved the state evidentiary claim for appeal. Defendant’s argument, however, lacks merit, for the prosecutor’s question, unlike defense counsel’s, did not assume a fact not in evidence. The defense called Dr.

Lykissa, chief toxicologist at Long Beach Memorial Medical Center, to testify about the effect of alcohol consumption on blood-alcohol levels and behavior, in order to suggest that defendant had committed the charged offenses with a diminished mental state. Dr. Lykissa testified that at 7:40 p.m. the night of the shootings, defendant gave a blood sample that contained .154 percent alcohol. Based on a theoretical model male weighing 150 pounds, Lykissa testified it would take in excess of seven drinks consumed over a two-hour period before testing for the model male to register .154 percent.

Defense counsel asked Dr. Lykissa: “Let’s say we are talking about a male in his mid-forties who weighs approximately—between 180 and 190 pounds in weight, do you have any opinion as—in assuming that he had—he had his last drink approximately an hour and a half to two hours before a test was run on him, would you have any opinion as to the blood level at that point?” The prosecutor then objected on the ground that no evidence supported the hypothetical.

At a sidebar conference, the court said: “The part that bothers me is unless [defendant] testifies—I don’t know how you are going to get into the record when he had his last drink. [][] That’s a part of. your hypothetical.” Defense counsel responded that he would be presenting circumstantial evidence of when defendant had his last drink and that defendant had had nothing to drink from about 10 minutes to 7:00 p.m. until the time his blood was tested at 7:40 p.m.

The prosecutor objected that no such evidence had yet been presented, adding: “In fact, there is not necessarily any reason to believe there was any drinking until after the first two killings, [f] ... He could have had everything after the killings, but before he shot Layton, and . . . unless we get some evidence in this record, this hypothetical is unwarranted.” The court ruled: “You [defense counsel] can always bring him [Lykissa] back, if necessary, but I’ll sustain the objection at this time to the hypothetical.” Defendant acknowledges he failed to recall Dr. Lykissa to the stand.

This circumstance suffices to defeat his claim of evidentiary error. Defendant argues, to the contrary, that recalling Dr. Lykissa “would not have alleviated the harm the trial court had already caused by allowing the prosecutor to pose to the expert a hypothetical question that was not supported by the evidence, even after all the evidence had been presented.” As will appear, the premise underlying this argument is flawed, as the prosecutor’s hypothetical question, unlike defense counsel’s, was based on facts shown by the evidence. (See People v.

Ward (2005) 36 Cal.4th 186, 209 [30 Cal.Rptr.3d 464, 114 P.3d 717] [expert may render opinion testimony based on facts given in hypothetical questions, but such questions must be rooted in facts shown by the evidence].) To return to the examination of Dr.

Lykissa: After the expert testified that defendant’s blood-alcohol level was .154 percent at 7:40 p.m., the prosecutor asked: “What, if anything, can you think of [that] is inconsistent with the following hypothesis? [f] That die individual whose blood alcohol reading was .154 at 7:40 did not have anything to drink until after 6:15 or 18:15?” The court overruled a defense objection, and Dr.

Lykissa, after making some calculations on paper, responded: “Nothing.” As the Attorney General reasons, the prosecutor’s question embraced facts already in evidence (the time of defendant’s blood test and his blood-alcohol level) and simply asked Dr. Lykissa if those known facts were inconsistent with the possibility (or hypothesis) that the individual in question had nothing to drink until after 6:15 p.m. In contrast, the defense question to which the court sustained the prosecutor’s objection asked Dr.

Lykissa to assume a fact not yet in evidence, i.e., that defendant had nothing to drink after 10 minutes to 7:00 p.m. Therefore, the trial court properly excluded defendant’s hypothetical and allowed the prosecutor’s; hence, no differential treatment appears. Defendant further argues the restriction on his counsel’s direct examination of Dr. Lykissa violated his Sixth and Fourteenth Amendment rights to present a defense and to due process, as well as the Eighth Amendment’s requirement of a reliable determination of penalty.

The Attorney General contends defendant forfeited these constitutional issues for purposes of this appeal by failing to articulate these grounds at trial.

We concluded above that defendant preserved his related claim of state evidentiary error, but because the constitutional claims defendant now asserts do not simply restate his evidentiary claim on alternative legal principles, but instead require consideration of different circumstances—namely, the court’s assertedly “asymmetrical” treatment of the parties’ use of hypothetical questions—he has forfeited the constitutional arguments for appeal. (See, ante, fn. 7.) In any event, for the reasons discussed above, the trial court did not err in its rulings concerning the scope of the parties’ examination of Dr.

Lykissa. 3. Asserted Instructional Errors a. Failure to instruct on involuntary manslaughter as a lesser included offense of murder Defendant contends the trial court erred in failing to instruct the jury on involuntary manslaughter as a lesser included offense of murder. (See People v. Ochoa (1998) 19 Cal.4th 353, 422 [79 Cal.Rptr.2d 408, 966 P.2d 442].) A trial court must instruct the jury on a lesser included offense, whether or not the defendant so requests, whenever evidence that the defendant is guilty of only the lesser offense is substantial enough to merit consideration by the jury. (People v.

Breverman (1998) 19 Cal.4th 142, 154-155, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) Substantial evidence in this context is that which a reasonable jury could find persuasive. (Id. at p. 162.)

Section 192, subdivision (

b) defines involuntary manslaughter as “the unlawful killing of a human being without malice” during “the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” As defendant observes, if, in a murder case, evidence of mental illness or intoxication raises a reasonable doubt the defendant premeditated or deliberated, but establishes he did harbor malice aforethought, then he is guilty of second degree murder; if such evidence negates malice aforethought, the only supportable verdict is involuntary manslaughter or acquittal. (People v.

Saille (1991) 54 Cal.3d 1103, 1117 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Defendant contends he presented substantial evidence that he was mentally ill and intoxicated at the time of the shootings, which could have led a reasonable jury to conclude he lacked malice aforethought. He points to the evidence, recited above, of his deteriorating mental state prior to the crimes and his consumption of alcohol on the day of the offenses, and argues the trial court therefore was required to instruct on involuntary manslaughter.

Contrary to defendant’s contention, the evidence—including defendant’s own testimony that he intentionally killed the victims and the manner in which they were shot—abundantly established that he intended to kill Ferguson and Perez, and nothing in the record suggested that intoxication or mental illness negated that intent. Nor was there any evidence that defendant was committing only a misdemeanor, or that he was committing a lawful act in an unlawful manner or without due caution. Moreover, in closing argument the defense essentially conceded the element of malice.

Consequently, the court did not err in failing to instruct on involuntary manslaughter as a lesser included offense of murder. b. Instruction on mental disorder and voluntary intoxication Defendant contends the trial court erred in instructing the jury, pursuant to CALJIC No. 3.36, that it could consider defendant’s evidence of mental illness and vol

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