THE PEOPLE, Plaintiff and Respondent, v. ERVEN R. BLACKSHER, Defendant and Appellant, 52 Cal. 4th 769

Opinion CORRIGAN, J. A jury found defendant Erven R. Blacksher guilty of the first degree murder of his nephew, the second degree murder of his sister, and being a felon in possession of a firearm. It also found true the firearm-use allegations and the special circumstance of multiple murder. The jury concluded defendant was sane and returned a verdict of death. This appeal is automatic. We affirm. I. Facts and Proceedings A. Guilt Phase 1. Prosecution’s Case In 1989, after the death of his father, defendant moved in with his mother, Eva Blackshgr, at her home in Berkeley.

Defendant was Eva’s youngest and favorite child. She provided for him. He did no work and paid no rent. Defendant was very controlling with his mother. He demanded that his siblings not visit the home, insisting he could take care of everything on his own. In 1990, however, as Eva grew ill, defendant’s sister, Versenia Lee, began caring for her. Versenia moved into the home with her ex-husband, Sammie, and their son, Torey. To make room for them, defendant moved into a small cottage behind the house. Defendant became jealous as Eva’s attention shifted away from him and towards Torey.

By May 1995, the relationship between the 40-year-old defendant and 21-year-old Torey became increasingly hostile. Early on the morning of May 7, 1995, defendant visited his brother, Elijah Blacksher. Defendant was angry, saying that Torey was “fucking with” him. Torey and his friends had threatened defendant and thrown rocks at his car. Torey was dishonoring Eva by selling cocaine at her home. Defendant asked Elijah to get him a gun so he could kill Torey. Elijah refused and tried to reason with defendant, explaining that Torey was part of the family.

Elijah asked defendant not to return home but to spend the rest of the night at his residence. Defendant refused and left. Later that same day, defendant called and revisited Elijah. On the telephone and in person he repeated his threats against Torey and said he was trying to find a gun. When Elijah could not calm defendant, Elijah drove defendant to the home of their eldest brother, James, hoping James would have better success. There, defendant remained very angry.

In front of Elijah, James, and James’s wife, Frances, he paced the floor and kept repeating that he was going to kill “that punk” Torey and would also kill his sister Versenia if she got in the way. At various points, defendant threatened to “knock” Torey’s “brains out” with a baseball bat and to get a gun and “shoot the place up.” James urged defendant to calm down, leave Torey alone, and get some rest. When defendant refused to listen, James told him to leave. Defendant did so, saying he was going to buy a gun on the street. The next evening, defendant and Torey argued in the driveway outside Eva’s home.

Versenia eventually broke up the argument and convinced Torey to come inside. Hearing of the argument, Elijah visited defendant in the cottage. Elijah told defendant to stay away from Torey, but defendant again said he was going to get a gun and shoot Torey. Defendant said, “Man, I done thought about it and thought about it and thought about it, I’m going to kill him.” About 11:00 p.m. that evening, Versenia reported the threats to police.

She told the responding officer, Officer Luis Mesones, that defendant was schizophrenic, had stopped taking his medication, and would sometimes become angry at people for no apparent reason. Because defendant was not at home at the time, Officer Mesones had Versenia sign a citizen’s arrest form. Between 1:00 and 2:00 a.m., a noise awakened Versenia. She found defendant sitting in the darkened living room with a baseball bat. He said he was waiting for Torey to come home so he could kill him. Versenia again called the police, and Officer Mesones returned.

When Officer Mesones asked defendant if he had threatened Torey, defendant said Torey had “disrespected my mother by bringing his friends in the house.” According to the officer, defendant was somewhat incoherent and stared ahead not looking at him. Officer Mesones arrested defendant. About 3:00 a.m., defendant called his sister, Ruth Cole, and asked her to bail him out. He repeatedly told her he wanted to kill Torey because Torey was being disrespectful towards Eva. On the morning of May 9, 1995, Eva and Versenia went to court and obtained a temporary restraining order against defendant.

After defendant was released from jail, he went to Eva’s home and discovered his keys no longer worked. He confronted Eva and demanded she give him the keys. He told her to make Versenia and her family leave the house. Eva relented and gave defendant the keys. Versenia made arrangements to move by the first of the month. Later that day, defendant visited his sister Ruth, told her he knew about the restraining order, and repeatedly said he was going to kill Torey. Ruth did not take defendant seriously, but reminded defendant that he was Torey’s uncle.

Ruth’s husband Willie arrived, and defendant told him he was going to kill Torey. Asked why, defendant showed him a dent on his car and said that Torey had hit it with a brick. Defendant also claimed Torey and his friends had been threatening him. As defendant left Ruth’s home, however, he said he was not going to kill Torey and that he did not want to “get his hands dirty.” The next day, on May 10, 1995, defendant went see to Elijah. He restated his decision to kill Torey, and said he had found someone who was willing to sell him a .357 Magnum.

He did not care about the cost and had already withdrawn money from the bank for the purchase. Elijah asked defendant to give him the money, but defendant refused, saying he would get the gun and hurt Torey. Elijah called defendant the next morning, May 11, 1995, at 6:30 a.m. When defendant admitted he had a gun, Elijah begged him to stay in his cottage until he got there. Defendant hung up. About 7:00 a.m., Eva’s next-door neighbor, John Adams, saw defendant back his car down to the end of the driveway. Adams and defendant acknowledged each other and exchanged hellos.

Defendant went to his mother’s bedroom, where Eva was still in bed. He spoke briefly to her, and left her room. Eva heard Versenia exclaim that she had heard a gunshot and that she was going to check the house. Eva then heard a single gunshot. Eva got out of bed and saw Versenia fall to the ground, bleeding. Eva then ran outside. Adams heard the gunshots and called 911. Three other neighbors heard the gunshots as well. One neighbor saw defendant leave Eva’s house “as if he was in a hurry,” just after she heard the gunshots. Torey died of a gunshot wound to the back of his head.

A second bullet had missed Torey’s head and passed through a nearby pillow. Versenia died of a gunshot wound to the right side of her head. Apparently, the bullet initially passed through her right index finger. The bullets were fired by the same gun, either a .357 Magnum or a .38 Special revolver. About 7:40 a.m., defendant called James’s home and spoke with his wife Frances. Defendant nervously told her that he had heard gunshots at his mother’s house and said someone should check on Eva. Frances suggested he should do so, but defendant said he did not want to be a witness to whatever happened.

About 7:45 a.m., defendant called his sister Ruth and told her he had heard gunshots and screaming at his mother’s house. He claimed he saw two masked men on the front porch, and asked Ruth to call the police. She asked why he did not do so. Defendant said he was afraid they would question him. He claimed he was calling from a friend’s house but would not identify the friend. Later in the day, defendant went to a travel agency, bought a bus ticket to Reno, and booked a room at a hotel casino. He made the reservations using Ruth’s address. The bus left at 12:55 p.m.

Nearly 38 hours later, about 2:30 a.m. on May 13, 1995, defendant surrendered to Officer Martin Heist as he was sitting in his patrol car outside the Berkeley police station. Defendant was carrying toiletries and wore a T-shirt that read, “Reno, Nevada.” 2. Defense Case The defense played the recording of Adams’s 911 call. During that call Adams said he believed defendant suffered from mental illness. , The defense also presented evidence that, during the 1980’s, the Social Security Administration found defendant eligible for benefits based on paranoid schizophrenia.

A clinical psychologist, Gerald Davenport, examined defendant to determine his competence to stand trial in both 1984 and in 1996. In 1984, he diagnosed defendant as a paranoid schizophrenic in remission, but found him competent. In 1996, he did not formally diagnose defendant but, based on an interview, Dr. Davenport believed that defendant was still suffering from schizophrenia. Defendant appeared hyperactive, suspicious, and overly boisterous, used “bizarre verbiage,” and was inappropriately “euphoric” at times. He behaved as if he were hearing voices, although he denied experiencing hallucinations. Dr.

Davenport also recounted defendant’s history of mental illness. Between 1975 and 1986, defendant was hospitalized at least five times due to suicidal thoughts, schizophrenia, psychotic depression, paranoia, and religious delusions. Between 1986 and 1996, he received mental health treatment at least eight different times. Medical records showed defendant had been repeatedly diagnosed as having paranoid schizophrenia. Defendant was convicted as charged and the trial moved to the sanity phase. B. Sanity Phase 1. Defense Case Defendant’s juvenile delinquency history began with a burglary at the age of eight.

Between the ages of nine and 17, defendant committed at least 13 different offenses, including malicious mischief, extortion, burglary, theft, and robbery. He was confined to the California Youth Authority intermittently during his teenage years. Following his last juvenile offense, the court referred defendant for a 90-day psychiatric evaluation. His IQ tested in the low-normal range. An earlier IQ test, subsequently criticized for racial bias, yielded a score in the retarded range. Defendant admitted using drugs, including heroin, LSD, methamphetamine, and barbiturates beginning at the age of 16.

He was hospitalized for the first time at the age of 21 in 1975. His probation officer reported that he was depressed with suicidal thoughts. When admitted to Napa State Hospital, he was described as being in a “confused, disorganized, agitated state as a result of recent drinking.” He was discharged after three days. In December 1977, defendant was hospitalized at Highland Hospital. The mental health unit at the county jail reported he had complained of hearing voices and seeing a small man sitting on his bed. Defendant told his treating clinician that he resented his father for ignoring him during childhood.

The clinician did not believe defendant was schizophrenic, but thought he was suffering from a psychotic reaction to alcohol abuse. Just over a week later, defendant was again hospitalized, claiming he heard voices, had hallucinations of a little man criticizing him, and felt suicidal. He claimed he had been seeing the little man for two years and the hallucinations were becoming so severe that he did not feel like living anymore. Defendant reported consuming a pint of scotch daily in the months before his incarceration.

He also claimed two incidents of untreated head trauma during his childhood, one of which resulted in a day of nausea and vomiting. Defendant was diagnosed with psychotic depressive reaction, received the antipsychotic drug Mellaril, and was released five days later. Throughout 1978, defendant remained in jail but continued to have followup examinations by mental health specialists. One of these specialists, Sophia Miles, noted that defendant continued to be depressed but was slowly improving. She diagnosed a depressive reaction with alcohol abuse and maintained him on Mellaril.

Upon release defendant stopped taking his medication. On November 30, 1979, he was referred to Highland Hospital for a 72-hour involuntary commitment. He had stopped taking Mellaril and had become “acutely psychotic,” with “auditory hallucinations [and] alterations in visual perception.” He held the paranoid belief that people were trying to kill him. The treating physician at the hospital diagnosed a resurgence of schizophrenia. Defendant was injected with antipsychotic medication, improved, and was released. On March 28, 1980, defendant was recommitted for 12 days.

His treating physicians described him as suffering from auditory hallucinations, with thought interruptions most likely stemming from the high-pitched voices he heard. While hospitalized, defendant appeared depressed and suicidal. Again diagnosed with psychotic depressive reaction, defendant was given Mellaril, and released. In followup visits, defendant appeared to be taking his medications and was no longer psychotic. In June 1981, defendant attempted suicide by overdosing on sleeping pills. In August 1981, defendant was again incarcerated.

While in custody he was committed for a mental health evaluation and treatment. He complained that his incarceration had prevented him from taking his medications and that he again heard voices. His treating physician saw no direct signs of hallucinations. He diagnosed a major depressive disorder with psychotic features and antisocial traits, and represcribed Mellaril, which was later changed to another antipsychotic, Thorazine. Sophia Miles, who saw defendant on his followup visits, described defendant as depressed, but not psychotic or out of touch with reality.

On June 18, 1984, defendant’s future wife brought him to the hospital because he had not slept for five days and was preoccupied with religion. Defendant arrived holding his girlfriend with one hand and clutching a Bible in the other, claiming that certain Bible passages referred directly to him. He was given Mellaril and discharged, but committed the next day having overdosed on the Mellaril. Medical records described defendant as depressed, paranoid, mumbling incoherently; and pacing. He was discharged on June 25, 1984.

On August 2, 1984, defendant was yet again committed after his mother and sister-in-law reported that he appeared to hear voices, was paranoid and agitated, talked incoherently, and appeared disoriented. Straitjacketed and given Mellaril, defendant calmed down enough to be sent home. His fiancée’s mother strongly protested his release. In October 1984, defendant again began acting strangely. His family persuaded his parole officer to return defendant to jail so he could receive treatment.

A jail therapist evaluated defendant and had him committed because he was paranoid, expressed a preoccupation with sex and religion, and appeared to be having auditory and visual hallucinations. Defendant was released after 35 days. During his stay, he was slow to improve. He complained of hallucinations and said “men and women had been entering his body through suction.” His treating physicians tried various psychotropic medications. Defendant responded somewhat to Mellaril and lithium, which is used to treat mania. Defendant’s discharge diagnosis was bipolar disorder with psychotic features.

In 1985, defendant was moved to the California Medical Facility at Vacaville. Before his scheduled release in the summer of 1986, the Board of Prison Terms ordered a mental health evaluation. Defendant was diagnosed as schizophrenic, with paranoid features in remission, and with mixed substance abuse and antisocial personality disorder. The report noted that defendant did not appear psychotic in interviews but did choose his words carefully and sometimes laughed and smiled inappropriately, as if responding to internal stimuli. While in prison, defendant was unable to hold a job due to “bizarre” behavior.

The report predicted that defendant would likely deteriorate upon release. On October 6, 1986, defendant’s parole officer had him committed because defendant declared he was a woman. He had insisted on using the women’s bathroom at church and claimed he had been mistakenly raised as a man. He objected to being addressed as “sir,” and made frequent religious references. He denied hallucinations, but laughed inappropriately as if responding to internal stimuli. Defendant was forcibly injected with Haldol, a potent antipsychotic medication.

Defendant did not appear to be a threat to himself or others, but the medication did not alleviate defendant’s delusion that he was a woman. Against the advice of his treating physician, defendant discharged himself at the end of the 72 hours and balked at the idea of taking any medication. Defendant was diagnosed as having chronic and delusional paranoid schizophrenia. From 1987 to 1988, defendant was again incarcerated at the California Medical Facility at Vacaville. There, he claimed he was homosexual and insisted he be housed only with other gay inmates in administrative segregation.

He refused to take his medication. Staff and fellow inmates reported that defendant was paranoid, and sometimes incoherent, and would yell and laugh inappropriately. He was given the probable diagnosis of paranoid schizophrenia. Defendant had no further mental health institutionalizations after January 21, 1988, but continued to receive disability payments for mental illness until his arrest for the present offenses. Defendant’s girlfriend said defendant continued to suffer delusions after his release from incarceration in the early 1990’s.

Defendant at various times believed he had two heads or the head of a dog, thought people looked like devils, believed he was Jesus and his mother was “the Earth Mother,” and was convinced he was the only man with male genitalia. Dr. Michael Levin, who had diagnosed defendant with paranoid schizophrenia in 1986, testified that schizophrenia is a severe, lifelong mental illness in which a person’s “internal psychiatric or psychic life” becomes more real and important to him than the outside world. It impairs his ability to assess reality.

A schizophrenic will often stare off into space or laugh inappropriately, because he is responding to internal stimuli or hallucinations. Some patients with milder symptoms are able to function well if medicated. Nonmedicated schizophrenics may remain “out of trouble” because they are withdrawn and keep to themselves. Schizophrenics commonly do not recognize themselves as mentally ill. Dr. William Pierce testified that during a psychotic episode a schizophrenic would be extremely impulsive and would respond to internal stimuli. The person would be in a manic state and nonresponsive to external reality.

A psychotic episode would disrupt the person’s cognitive functions and severely affect the ability to concentrate, anticipate, and plan. Based upon defendant’s mental health records, interviews of defendant’s Mends and family, prior competency examinations, and his own 1995 and 1997 examinations of defendant, Dr. Pierce believed defendant suffered from paranoid schizophrenia. During interviews, defendant was rambling and incoherent, with tangential and disordered thinking. Defendant launched into grandiose rants about Moses, Ali Baba and the Forty Thieves, AMca and the Middle East.

He claimed he knew Alexander the Great and was related to Caesar and Cleopatra. According to Dr. Pierce, during testing defendant appeared internally preoccupied when directed to perform certain tasks. Dr. Pierce believed defendant had a poor ability to control a “vivid fantasy life” and that he would have difficulty separating his internal experiences from external reality. Based on Officer Mesones’s description of defendant on May 8, 1995, as he waited in his mother’s living room with a baseball bat, Dr. Pierce believed defendant was having a psychotic episode.

In his opinion that incident alone would have justified an involuntary mental health commitment. But Dr. Pierce could not state with confidence whether defendant was having a psychotic episode at the time of the murders. In fact, he stated defendant probably could have distinguished between right and wrong before the murders given that, at one point, he told his sister Ruth he was not going to “get his hands dirty” by killing Torey. Dr. Pierce also acknowledged there was no overt evidence that defendant was suffering from hallucinations around the time of the murders.

His efforts to conceal the crime and flee to Reno showed his cognitive functions were not completely impaired. 2. Prosecution’s Case To rebut the defense’s claim of insanity, the prosecution presented the testimony of defendant’s older siblings, his statements to police, and the testimony of law enforcement personnel who had observed defendant after his incarceration for these offenses. Defendant’s elder brother, Artis Blacksher, Jr., testified defendant was his mother’s favorite child. Their father was a strict disciplinarian who beat the children when they misbehaved.

Their parents prohibited fighting and taught them to obey rules. As defendant grew into an adult, both Artis and his sister Ruth said defendant mocked the idea of working for a living. Defendant told his siblings that working was not his “thing” and that he was going to “beat the system.” Defendant repeatedly rejected his siblings’ attempts to encourage him to find work. Artis, who moved out of the family household when defendant was five years old, was unaware that defendant was ever hospitalized. He knew of no other family members who ever required psychiatric care.

About a month after the murders, defendant wrote a letter to his mother, referring to Torey, not by name, but as “the punk.” Defendant also wrote several letters to Ruth in which he made numerous religious references. Two days after the murders, defendant was interrogated by Deputy District Attorney Richard Moore and Berkeley Police Investigator Douglass Wright. In the tapes of that interview, defendant claimed he walked out of his cottage on the morning of the murders, backed his car down the driveway, and exchanged pleasantries with his neighbor.

He went inside the house, spoke to his mother briefly, and saw Torey asleep and Versenia lying in bed. After using the bathroom, he left through the front door and discovered two masked men on the front porch. They motioned for him to leave. He did not see any weapons, but they carried themselves as if they were armed. As defendant got into his car, he saw the men enter his mother’s home then heard what sounded like gunshots. He thought the men were there for Torey and believed they would leave his mother and sister alone if he did not interfere or try to call the police.

He acknowledged he called his sister Ruth to report what had happened and later went to a restaurant for breakfast. He decided to leave town because he did not want to be involved with the police. He eventually went to Reno because he did not want to face the reality that something may have happened to his mother. His clothes were worn, so he left them in his hotel room and bought new ones. Defendant claimed Torey was his favorite nephew, but admitted having problems with him in the days before the murders.

He repeatedly denied telling family members he wanted to kill Torey, but admitted saying he wanted to hurt him. Defendant also denied having any mental problems. According to law enforcement personnel, during his incarceration for the present offenses, defendant never reported any mental illness or hallucinations, and was on no medication. He did, however, insist that he was homosexual. Jail officials later removed him from administrative segregation, over his protest, believing there was no basis for his claim.

One deputy sheriff described defendant as having “temper tantrums.” According to the deputy, he saw defendant scream and yell at people a few times without apparent provocation. Once, defendant began screaming and banging his cell door for no apparent reason. The jury rejected defendant’s insanity claim and the penalty phase began. C. Penalty Phase 1. Prosecution’s Case a.

Defendant’s prior violent offenses On October 10, 1984, defendant, while waiting in a holding cell, was agitated and pacing, making comments about “whitey.” He assaulted two White inmates in the holding cell, hitting one of them on the back of the head and punching the other inmate in the face, causing profuse bleeding. On January 25, 1988, at the California Medical Facility at Vacaville, defendant punched another inmate in the face after an argument in the shower. The inmate was knocked to the ground and suffered swelling around the eye.

On January 5, 1989, defendant threatened his father with a butcher knife during an argument about defendant’s failure to pay rent. The father, who was terminally ill with stomach cancer, was nervous and shaking. When defendant refused to put down the knife, Eva and defendant’s sister, Ruth, shielded the father and took him to another room. As his mother guarded the other side of the door, defendant repeatedly hit the doorframe with the knife, threatening to kill his mother if she did not get out of his way. When the police arrived, the father declined to have defendant arrested.

On February 17, 1990, while Ruth and Artis were visiting their mother, defendant complained about Artis’s presence. When Artis refused to leave, defendant picked up a butcher knife and began pacing and complaining about his brother’s presence. Artis kept defendant at bay with a chair and umbrella, while Ruth and Eva tried to convince him to put down the knife. Eva called the police, but defendant left just before they arrived. Later that day, defendant returned and told his mother that she had to choose between him or his siblings. He told Ruth and Artis that he did not want them coming to the house anymore.

On July 10, 1991, defendant created a disturbance on a bus. The driver contacted the police to have him removed. As a deputy sheriff began to escort him off the bus, defendant walked down the aisle and punched a teenage boy in the face. On April 16, 1995, defendant picked up his girlfriend, LaDonna T., at the airport, and drove her to his cottage instead of her residence as she had requested. As LaDonna sat on defendant’s bed, he suddenly jumped on her and punched her in the face. Defendant continued to punch her, and kicked her after she fell to the floor.

Defendant accused LaDonna of having an affair while she was gone. Torey came to the door and yelled at defendant to leave-her alone, but defendant told Torey to mind his own business. Defendant ordered LaDonna to take off her clothes and raped her. Afterwards, defendant took her home and acted as if nothing had happened. Fearful, LaDonna did not report the rape, but discontinued their relationship. LaDonna testified defendant had an erratic personality and would sometimes swear at strangers in public. Defendant once claimed he saw a man with four legs sitting outside a restaurant.

The parties stipulated that defendant had been convicted of seven prior felonies, including five burglaries, an assault, and possessing narcotics for sale. b. Victim impact testimony Ruth last spoke with her sister Versenia two days before her murder. Versenia was crying because Eva had let defendant back in the house. Ruth was unable to console Versenia because defendant was in Ruth’s house during the phone call. Ruth deeply regretted her inability to comfort her sister during their last conversation. Ruth was “devastated” by the loss of her sister and nephew.

She described panicking when seeing all the bloodstains on the floor and furniture in her mother’s home. She had difficulty accepting that her sister and nephew were dead until she saw their bodies at the mortuary. She spent $8,000 on funeral expenses. Ruth also described her mother’s reaction to the murders. Eva cried constantly over the loss of her daughter and grandson. Ruth frequently took her mother to visit their graves, which seemed to give her some relief. Eva repeatedly asked why defendant killed them.

Sammie Lee, Torey’s father and Versenia’s ex-husband, said he “went off’ when he discovered that they were dead. Sammie was in disbelief and had difficulty concentrating at work. For a time he stayed at Ruth’s home, but decided that staying at Eva’s home would help him get over his feelings. Once there, surrounded by pictures of Torey and Versenia, he could not sleep, and began drinking heavily. Sammie eventually lost his job, and Ruth urged him to seek help. Artis said he felt like he had been “run over by a train” when he learned that his sister and nephew were dead.

He tried unsuccessfully to find and hurt defendant after the murders. The prosecution also displayed the clothes Torey and Versenia wore at the time of their murders. 2. Defense Case Defendant’s brother Elijah, sister Georgia Hill, Georgia’s ex-husband Ronald Hill, and Versenia’s ex-husband Robert Ruffin testified as to defendant’s family history and character. Defendant’s father was an alcoholic and often absent. He abused his wife and was frequently unfaithful. Defendant would sometimes try to stop his father from striking his mother. The father had a reputation for wielding a knife during arguments.

Defendant’s mother was protective of defendant because he was the youngest child and had mental problems. As a child, defendant was obese and often teased. At school, he would do peculiar things like get lost or wander into the girls’ bathroom. He would often talk to himself, and was sometimes difficult to converse with. His mind wandered and he seemed distant. Defendant was repeatedly fired from jobs because he would wander off. He was fired as a cook because he let a pan catch on fire and simply laughed as it burned. Defendant’s behavior became more unusual after he saw his cousin Floyd shot to death by police.

Defendant subsequently began hallucinating, laughing out loud without reason, and offering his own bizarre

interpretations of the Bible. Other family members suffered from alcoholism and mental illness. An aunt committed suicide; a cousin attempted suicide; a niece had signs of mental illness. Defendant’s siblings were deeply divided. Older siblings, Ruth, Artis, and James, were fairly uninvolved in the upbringing of their younger siblings, having moved from the household to start their own families. Defendant’s mother added defendant’s name to the deed of her home and named him a beneficiary in her will because she wanted to provide for him in case something happened to her.

The older siblings were jealous of the attention and support his mother gave defendant. They refused to believe he had any disabilities. The younger siblings, however, expressed compassion for defendant, and believed he suffered from a mental disability. Georgia and Elijah thought that the older siblings stood to gain from defendant’s death by inheriting their mother’s assets and that they were “in denial” about the problem of mental illness in the family. Defendant got along well with Elijah’s family. He was close to Elijah’s children and to his sister Versenia.

He was also very involved in the life of his youngest child and tried to be a good father to him. Elijah and Georgia’s ex-husband Ronald Hill were surprised that he hurt Versenia and expressed doubt that he actually killed her. Elijah, Georgia, and Ronald all believed defendant should not be put to death because of his mental problems. Friends of the Blacksher family also testified on defendant’s behalf. Many had frequently observed defendant talking to himself, making abrupt changes in topics of conversation, and staring off into space.

Longtime family friend Alisa Nelson, a former peace officer and an associate governmental analyst with the State Department of Alcohol and Drug Programs, believed defendant suffered from a mental disorder. Nelson saw defendant pace and talk to himself. Sometimes he would quote from the Bible inaccurately. On one occasion, defendant glared at her and verbally abused her for no apparent reason. When she asked him what he was doing, defendant “snapped out of it,” as if he suddenly realized he had been talking to the wrong person, and walked away.

Eva’s neighbor, Diane Marks, knew defendant well, and he always treated her with respect, frequently cared for her dog, and offered to help with her yard work. Eva once told Marks that defendant could become angry if he did not take his medication. According to Clarence Burrell, a former San Quentin correctional officer and a friend of defendant’s sister Georgia, defendant appeared to be living in the past and kept a 1960’s hairstyle.

Once, defendant professed that either he was “crazy” or “the world’s crazy.” Patricia White-Brown, the mother of defendant’s ex-girlfriend Tracy and the grandmother of defendant’s youngest son, said she never noticed anything unusual about defendant’s behavior. Defendant was respectful to her and worked hard to help get her daughter off drugs. White-Brown thought defendant was a good father. Alisa Nelson, Diane Marks, and Patricia White-Brown all said they were against capital punishment. Marks and White-Brown believed defendant did not deserve to die because he was a good person.

Nelson thought defendant should live because he had a son. He was mentally ill, and the family had already suffered enough tragedy. II. Pretrial Issues A. Defendant’s Competency to Stand Trial Defendant claims he was denied federal due process of law because he was incompetent to stand trial. He contends the court abandoned the duty to exercise its discretion by appointing and relying on a “tie-breaking” third expert when the first two experts disagreed as to defendant’s competency.

He further argues the court abused its discretion by relying on the allegedly insufficient examinations of the two experts who concluded defendant was competent. We find no abuse of discretion and no error in the competency determination. 1. The Competency Proceedings On April 19, 1996, defense counsel declared a doubt as to defendant’s competence to stand trial. Under sections 1367 and 1368, the court suspended proceedings and appointed Psychologist Gerald Davenport and Psychiatrist Joel Fort to examine defendant. They submitted conflicting reports. Dr.

Davenport found defendant incompetent to stand trial, but believed he could regain competence through medication and psychological treatment. During his interview, defendant “talked non-stop for approximately an hour and fifteen minutes.” Although defendant initially presented “a logical thought process,” his “thought confusion” gradually revealed itself. Defendant appeared suspicious and had “severe mood swings” throughout the interview. At times, he appeared “anxious and depressed,” while at other times he appeared “euphoric and laugh[ed] wildly” for no apparent reason.

Although defendant denied any hallucinations, “he clearly was responding to internal stimuli.” He spoke loudly, repeated himself, could not sit still, had “delusions of persecution,” engaged in loose and tangential thinking, and used bizarre verbiage. Defendant occasionally could think abstractly, “but unfortunately would very quickly become overly involved in his thought process,” “lose his focus,” and use strange words. Defendant’s presentation was “so severe” that Dr. Davenport questioned whether he was malingering, and asked to review his mental health records. According to Dr.

Davenport, those records showed that defendant had received “very little intervention over time.” Although defendant appeared to understand the charges against him and the roles of the participants in the courtroom, Dr. Davenport believed he was not capable of assisting in his own defense. Dr. Fort concluded defendant was competent to stand trial. He reviewed defendant’s background information, including the circumstances of these offenses and his mental health history. During defendant’s interview, he was “cooperative, talkative, oriented,” and appeared to have “average intelligence and memory.” Dr.

Fort reported defendant understood the charges against him, the roles of the participants at trial, and the purpose of his next court appearance. Dr. Fort also noted defendant was able to summarize the testimony of three witnesses, and was able to read and approve a lengthy motion. Dr. Fort noticed no signs of hallucinations or delusions except that defendant claimed he did not exist anymore because he “died in 1984 and someone else took control.” Dr. Fort did not believe this delusion affected defendant’s mental state or was related to the crimes.

Noting that the doctors’ reports were “at opposite ends of the opinion scale,” on May 23, 1996, the court appointed a psychiatrist, Dr. Fred Rosenthal, to conduct a third competency examination. Dr. Rosenthal found defendant competent.

He described defendant as “calm and in control” during his interview, although he was “somewhat rambling,” exhibited “indications of paranoid thoughts” about his case, and had “a somewhat distorted, self-justifying attitude about his current problems.” Defendant “seemed to maintain his hold on reality to some extent,” and there were no indications he was suffering from any hallucinations or any other severe cognitive deficits. Based on defendant’s interview and mental health history, Dr. Rosenthal believed defendant suffered from chronic paranoid schizophrenia and was in denial about his mental disorder. Dr.

Rosenthal reported that defendant was able to understand the charges against him and discuss his legal situation in a “coherent” and “fairly reasonable manner,” except when he professed his innocence and exhibited paranoid thoughts about being falsely accused and victimized by the justice system. Dr. Rosenthal reported that defendant was willing to cooperate and work with his attorney “because he agreed with him on his innocence.” On July 3, 1996, the parties submitted the issue of defendant’s competency on Dr. Rosenthal’s report.

The court found defendant competent “[biased upon the contents of the report” and reinstituted the criminal proceedings. 2. Analysis “The criminal trial of a mentally incompetent person violates due process. (Cooper v. Oklahoma (1996) 517 U.S. 348, 354 [134 L.Ed.2d 498, 116 S.Ct. 1373].) However, a defendant is not incompetent if he can understand the nature of the legal proceedings and assist counsel in conducting a defense in a rational manner. (See ibid.; § 1367.)” (People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 1047 [47 Cal.Rptr.3d 467, 140 P.3d 775].) A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence by the party contending he or she is incompetent. (§ 1369, subd. (f); Medina v. California (1992) 505 U.S. 437 [120 L.Ed.2d 353, 112 S.Ct. 2572]; People v. Medina (1990) 51 Cal.3d 870, 881-885 [274 Cal.Rptr. 849, 799 P.2d 1282]; Cal.

Rules of Court, rale 4.130(e)(2).) In reviewing on appeal a finding of competency, “an appellate court must view the record in the light most favorable to the verdict and uphold the verdict if it is supported by substantial evidence.” (People v. Marshall (1997) 15 Cal.4th 1, 31 [61 Cal.Rptr.2d 84, 931 P.2d 262].) Defendant argues the court’s reliance on Dr. Rosenthal’s report was an abuse of discretion because the report did not provide substantial evidence of his competence. Specifically, he argues Dr.

Rosenthal’s report only established that defendant was willing to cooperate with his attorney, but failed to establish that defendant was able to assist his defense counsel in a rational manner. In fact, he asserts, the report noted he became irrational, paranoid, and had a limited “hold on reality” when it came to questions of his innocence. Because defendant failed to raise these objections below, they are forfeited.

Defendant argues the application of the forfeiture rale here “is akin to arguing that a failure to object to evidence on hearsay grounds would prevent an argument on appeal that the evidence was constitutionally insufficient to support the verdict.” Defendant ignores a crucial distinction. Unlike the adjudication of criminal guilt, which presumes a defendant’s innocence and places the burden of proof on the state, here defendant is presumed competent.

Because he raised the issue of his competency, he assumes the burden of proof. (§§ 1096, 1369, subd. (f).) Under these circumstances, by failing to object below, defendant deprived the prosecution of the opportunity to rebut any objections with evidence supporting the presumption of competency. (See In re Seaton (2004) 34 Cal.4th 193, 199 [17 Cal.Rptr.3d 633, 95 P.3d 896]; see also People v.

Weaver (2001) 26 Cal.4th 876, 904 [111 Cal.Rptr.2d 2, 29 P.3d 103] [“Having submitted the competency determination on the two psychiatric reports, defendant may not now relitigate that question with arguments he did not make below.”].) Because defendant submitted the question of his competency on Dr. Rosenthal’s report, he has forfeited the claims that the court abused its discretion by determining competency on the “majority vote” of the experts or by relying on allegedly insufficient reports.

In any event, there is no merit to defendant’s claim that the court failed to exercise its discretion by relying on the “majority vote” of the three appointed experts. Instead, the record demonstrates that the parties agreed to submit the issue of defendant’s competency on Dr. Rosenthal’s report and the trial court made its ruling based on that report. The court’s decision to obtain a third report and its reliance on that single report was not an abuse of discretion. (See People v.

McPeters (1992) 2 Cal.4th 1148, 1168-1169 [9 Cal.Rptr.2d 834, 832 P.2d 146]; § 1369, subd. (a).) Moreover, it was defendant’s burden to prove he was legally incompetent, and Dr. Rosenthal’s report does not support such a determination. Although Dr. Rosenthal believed defendant suffered from paranoid schizophrenia, he concluded defendant remained “sufficiently in contact with reality to be considered mentally competent to stand trial.” He based this conclusion on an examination of defendant and consideration of his prior mental health history. Although Dr.

Rosenthal did not state in so many words that defendant was capable of assisting in his defense, that conclusion was evident in his report. Dr. Rosenthal concluded defendant understood the charges against him, was able to discuss his legal situation coherently, and was willing to cooperate with his attorney. These circumstances demonstrated that defendant was capable of assisting in his defense. An insistence upon innocence is not unknown among those accused of crime. That was the position defendant consistently maintained following the murders.

Indeed, his steadfast contention that two masked men were responsible reflected an ability to formulate a defense to the charges against him. In the end, nothing in Dr. Rosenthal’s report established as a matter of law that defendant was incompetent. B.

Defendant’s Absence from Certain Proceedings Defendant contends the court violated his constitutional and statutory rights by conducting proceedings in his absence on 17 different occasions. “A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by

section 15 of

article I of the California Constitution and by sections 977 and 1043.” (People v. Concepcion (2008) 45 Cal.4th 77, 81 [84 Cal.Rptr.3d 418, 193 P.3d 1172].) “Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross-examination.’ ” (People v. Butler (2009) 46 Cal.4th 847, 861 [95 Cal.Rptr.3d 376, 209 P.3d 596], quoting Kentucky v.

Stincer (1987) 482 U.S. 730, 744-745, fn. 17 [96 L.Ed.2d 631, 107 S.Ct. 2658].) “Due process guarantees the right to be present at any ‘stage that is critical to [the] outcome’ and where the defendant’s ‘presence would contribute to the fairness of the procedure.’ ” (Butler, at p. 861, quoting Stincer, at p. 745.) “ ‘The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]’ [Citation.] Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]” (Butler, at p. 861, quoting People v.

Harris (2008) 43 Cal.4th 1269, 1306 [78 Cal.Rptr.3d 295, 185 P.3d 727].) “Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.” (People v. Bradford (1997) 15 Cal.4th 1229, 1357 [65 Cal.Rptr.2d 145, 939 P.2d 259].) In each of the 17 complained-of proceedings, defendant’s presence was not necessary for effective cross-examination or to contribute to the fairness of the procedure. His absence did not deprive him of the full opportunity to defend against the charges.

Most of the complained-of proceedings require little discussion, as they involved pretrial matters or occurred before the presentation of evidence at the guilt phase. On one occasion, defendant had agreed to his absence on the record the day before, and the proceedings merely involved corrections to the jury questionnaire and the record. Two of the proceedings were postponed specifically because of defendant’s absence. Nine of the proceedings concerned routine legal and procedural matters involving discovery, record corrections, stipulated juror hardships, and exhibit list correction.

In one proceeding, the prosecutor and defense counsel briefly appeared to set the matter for trial, and defense counsel withdrew defendant’s time waiver. At the next appearance, defendant approved of the withdrawal on the record. Once in midtrial, the parties discussed the guilt phase jury instructions. Defendant fails to explain why his presence was necessary for that proceeding. (People v. Butler, supra, 46 Cal.4th 847, 865 [discussion of jury instructions is not a critical stage of the proceedings requiring defendant’s presence].) Only three of defendant’s absences require greater discussion.

First, during jury selection, defendant was not present at an in-chambers discussion of a defense motion made pursuant to Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler). The discussion was brief, and the court repeated its ruling in defendant’s presence. Defendant voiced no objection to his absence from chambers. He fails to explain why his presence was necessary or how his absence prejudiced his case.

Second, defendant was absent when a juror was replaced during the penalty phase deliberations but defendant had been present at the prior proceeding where the parties agreed to excuse that particular juror if the deliberations had not concluded in time. The next day, in defendant’s presence, the juror was replaced with an alternate, and defendant voiced no objection. Given these circumstances, defendant fails to explain why his presence was required.

Third, defendant was absent when the parties discussed penalty phase instructions and defense counsel withdrew defendant’s request for allocution, stating, “We are not pursuing that.” “[W]e have repeatedly held there is no right of allocution at the penalty phase of a capital trial.” (People v. Lucero (2000) 23 Cal.4th 692, 717 [97 Cal.Rptr.2d 871, 3 P.3d 248].) Therefore, even assuming defendant did wish to address the court before his sentencing, defense counsel did not violate any cognizable right by withdrawing defendant’s request for allocution.

In sum, defendant fails to show how any of his absences affected his ability to defend himself or otherwise prejudiced his case. C. Batson/Wheeler Claims Upon defendant’s objection, the court found no prima facie showing that the prosecutor exercised two peremptory challenges on racial grounds. Defendant challenges the ruling. There was no evidence of racial bias and no error. The prosecution’s use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16 of the California Constitution and his right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.) These procedures apply when a defendant makes such an objection; “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v.

California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted; see also People v. Lancaster (2007) 41 Cal.4th 50, 74 [58 Cal.Rptr.3d 608, 158 P.3d 157].) At issue here is whether defendant made a prima facie showing of group bias. To do so, the defendant must demonstrate “ ‘ “that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.]’ ” (People v. Howard (2008) 42 Cal.4th 1000, 1016 [71 Cal.Rptr.3d 264, 175 P.3d 13], quoting Johnson v.

California, supra, 545 U.S. 162, 168.) Where, as here, it is unclear whether the court relied on the recently disapproved “strong likelihood” standard, rather than the correct “reasonable inference” standard, “we review the record independently” to determine whether defendant’s showing met the “reasonable inference” standard. (Howard, at p. 1017.) Defendant is African-American. During jury selection, the prosecutor used his fourth and eighth peremptory challenges to excuse Prospective Jurors M.P. and L.W., African-American women.

Defense counsel lodged an objection in chambers, arguing there was “a strong likelihood that both of those jurors were excluded on the basis of their race.” The court found no prima facie showing, noting there were still two African-American jurors on the panel and that the defense had exercised one of its own challenges against an African-American juror. Jury selection resumed. The final jury included six African-American jurors. Based on our independent review, we agree with the court that defendant did not make a prima facie showing of group bias.

Defendant offered no circumstances relevant to his claim of discriminatory intent. Defense counsel made no attempt to argue that the excused jurors were not, apart from their race, as “ ‘heterogeneous as the community as a whole’ ” or that the prosecution engaged them in desultory voir dire. (People v.

Bell (2007) 40 Cal.4th 582, 597 [54 Cal.Rptr.3d 453, 151 P.3d 292].) Defense counsel failed to show that the prosecution had struck most or all members of the identified group or had used a disproportionate number of challenges against the group. (Ibid.) In fact, other circumstances demonstrate a lack of discriminatory purpose. The prosecutor did not challenge several other African-American jurors, and, as noted, six ultimately served on the jury. (People v.

Cornwell (2005) 37 Cal.4th 50, 70 [33 Cal.Rptr.3d 1, 117 P.3d 622] [concluding a challenge raised no inference of bias, “particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury”]; People v.

Turner (1994) 8 Cal.4th 137, 168 [32 Cal.Rptr.2d 762, 878 P.2d 521] [“While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.”].) Moreover, race-neutral grounds supported the prosecutor’s challenges. Prospective Juror M.P. wrote that she had “ambivalent feelings” toward the death penalty. She expressed discomfort in playing any role in deciding to impose a death sentence.

She believed no one has the right to take a life and such a decision might be akin to “playing ‘God.’ ” Prospective Juror L.W. stated in her questionnaire that she was only “moderately” in favor of the death penalty and believed a life sentence was a more severe penalty. (See People v.

Bolin (1998) 18 Cal.4th 297, 317 [75 Cal.Rptr.2d 412, 956 P.2d 374] [the use of “peremptory challenges to excuse prospective jurors who expressed scruples about imposing the death penalty” is proper].) Furthermore, M.P. wrote that, based upon a racial-profiling incident involving her brother and the police, she might treat police testimony with skepticism. (People v.

Farnam (2002) 28 Cal.4th 107, 138 [121 Cal.Rptr.2d 106, 47 P.3d 988] [“a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution”].) Finally, L.W. was a psychology major and characterized that discipline as a “science.” Her background thus posed the danger of having her own specialized knowledge influence her decisionmaking regarding the significance of the claims of defendant’s mental illness. (People v.

Howard (1992) 1 Cal.4th 1132, 1156 [5 Cal.Rptr.2d 268, 824 P.2d 1315] [prospective juror’s professional training as a nurse suggested a possible ground for the prosecutor’s challenge].) The court properly found no prima facie case of discrimination and did not err in denying defendant’s Batson/Wheeler motion. III. Guilt Phase Issues A. Admission of Eva Blacksher’s Statements Defendant contends the court erred by admitting several hearsay statements of Eva Blacksher, who was deemed incompetent to testify at trial due to dementia.

The court allowed the prosecutor to present her preliminary hearing testimony under Evidence Code sections 1290 and 1291. Because portions of Eva’s preliminary hearing testimony were inconsistent with statements she had made before that hearing, the court also allowed the prosecution to present several of her previous statements. Defendant lodged hearsay and confrontation clause objections to most of these statements below, and renews these objections on appeal. He now also argues that some of these statements were inadmissible under the subsequent rule of Crawford v.

Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford).

In Crawford, the high court held that the Sixth Amendment’s confrontation clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at pp. 53-54.) Eva’s statements fall under three broad categories: (1) statements she made in relation to the restraining order she obtained against defendant two days before the murders; (2) statements she made to a police officer and family members soon after the murders; and (3) statements she made to a detective the day after the murders.

All of the challenged statements were properly admitted. 1. Statements Concerning the Restraining Order a. Background In the preliminary hearing transcript read to the jury, Eva denied obtaining a temporary restraining order against defendant. She could not remember signing an application for the order and denied writing that she was afraid of defendant. She also denied knowing that defendant and Versenia had any problems before the murders. Eva’s daughter, Ruth Cole, testified at trial about statements Eva and Versenia made on their way to court to obtain the restraining order.

As Ruth drove Eva and Versenia to the courthouse, they discussed how defendant’s appearance with a baseball bat the night before had made them fearful. Ruth described how Versenia and Eva spent hours at the courthouse waiting in line and filling out forms. Ruth saw Versenia read the application forms to Eva and fill them out, saw Eva sign them, and then saw them submit the forms to the court clerk. Ruth recognized Versenia’s handwriting and her mother’s signatures on the forms.

During the course of Ruth’s testimony, defense counsel objected to several questions regarding whether Eva knowingly and willingly went to the courthouse to obtain the order, claiming the questions called for speculation and a conclusion as to Eva’s mental state. Defense counsel also made a general objection to Eva’s statements to Ruth on confrontation clause grounds.

The prosecution argued that Ruth’s testimony was admissible to show that Eva feared defendant and to impeach Eva’s preliminary hearing testimony in which she either denied or could not remember being involved in the application for the restraining order against defendant. The court overruled the defense objections, initially ruling the statements were admissible as prior inconsistent statements and to show Eva’s state of mind.

Later, however, the court questioned whether Eva’s state of mind was relevant and, instead, instructed the jury that Eva’s statements to Ruth about obtaining the restraining order were admissible only to impeach Eva’s prior testimony “and for that purpose only.” In light of this clarification and instruction by the trial court, we review the question of whether the statements were properly admitted for impeachment. Defendant here repeats the objections he made below.

He also argues that Ruth’s testimony was inadmissible to impeach Eva’s preliminary hearing testimony because, under Crawford, Eva’s failing memory effectively denied him his right to cross-examine her at the preliminary hearing. He claims her preliminary hearing testimony revealed she was often unable to understand questions posed to her and to remember relevant details, thereby preventing him from engaging her in any meaningful cross-examination.

First, we deal with defendant’s contention that Ruth’s testimony impeaching Eva’s former testimony should not have been admitted because defendant was denied his right to effectively cross-examine Eva at the preliminary hearing. Then, we will address defendant’s additional arguments that, notwithstanding any defects at the preliminary hearing, Ruth’s testimony impeaching Eva was not admissible under the confrontation clause and that her testimony constituted improper opinion evidence as to Eva’s mental state. b.

The Right to Cross-examination at the Preliminary Hearing Concerning any defects at the preliminary hearing, we note that defendant did not challenge Eva’s competence at the preliminary hearing. Further, at trial, he made no objection to the admission of Eva’s preliminary hearing testimony. Although the high court’s decision in Crawford came well after the proceedings in this case, our statutory law governing the admission of former testimony has long required the prior opportunity to cross-examine as a foundational prerequisite under Evidence Code

section 1291, subdivision (a)(2). Consequently, defendant has forfeited any claim that Eva’s preliminary hearing testimony was inadmissible. He twice failed to urge that Eva’s mental state precluded a meaningful opportunity for cross-examination. The claim also lacks merit.

The fact that, at the preliminary hearing, Eva had some difficulty initially understanding the questions posed to her or remembering some of her previous statements did not render defendant’s cross-examination opportunity meaningless. “The right of confrontation does not protect against ‘testimony that is marred by forgetfulness, confusion, or evasion.’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 742 [60 Cal.Rptr.2d 1, 928 P.2d 485], quoting Delaware v. Fensterer (1985) 474 U.S. 15, 22 [88 L.Ed.2d 15, 106 S.Ct. 292]; see also United States v.

Owens (1988) 484 U.S. 554, 560 [98 L.Ed.2d 951, 108 S.Ct. 838].) To be sure, Eva expressed some minor confusion, but she was able to respond to the questions posed and rephrased to her and was otherwise lucid. Nothing in her testimony revealed “an inability to distinguish truth from falsehood (or perception from imagination)” or a failure to appreciate her “obligation as a witness to tell the truth.” (People v. Cudjo (1993) 6 Cal.4th 585, 622 [25 Cal.Rptr.2d 390, 863 P.2d 635].) c. The Confrontation Clause and Evidence Code

Section 1202 Notwithstanding any alleged defects at the preliminary hearing, we also reject defendant’s claim that Ruth’s testimony impeaching Eva’s former testimony was not admissible on confrontation grounds under either state or federal law. We first note that Eva’s statements to Ruth about the restraining order were not admissible for their truth as prior inconsistent statements under Evidence Code sections 1235 and 770. Those sections permit admission of inconsistent statements made by a witness who actually testifies at the proceeding. (People v.

Williams (1976) 16 Cal.3d 663, 669 [128 Cal.Rptr. 888, 547 P.2d 1000].) Because Eva did not testify at trial, those sections do not apply here. Nevertheless, as the trial court eventually recognized, Eva’s statements to Ruth were admissible not for their truth but solely to impeach her former testimony. (Cal. Law Revision Com. com., 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foil. § 1202, p. 27; Simons, Cal. Evidence Manual (2010) § 2.17, pp. 86-87.) Although the court did not admit the evidence under a specific Evidence Code section, the statements were admissible under Evidence Code

section 1202, which governs the impeachment of hearsay statements by a declarant who does not testify at trial. The jury was properly instructed on this point. Defendant argues for a more narrow

interpretation of Evidence Code

section 1202. He urges that the

section forbids the prosecution from impeaching its own unavailable hearsay declarant with an inconsistent statement. He maintains that Evidence Code

section 1202 allows only the opposing party to introduce the inconsistent statement. His argument fails. Defendant relies on People v. Beyea (1974) 38 Cal.App.3d 176 [113 Cal.Rptr. 254] (Beyea), in which the prosecution introduced the preliminary hearing testimony of two unavailable witnesses. It impeached that evidence with one witness’s testimony from a different preliminary hearing and with the other witness’s statements to police. The prosecutor in Beyea, however, did not impeach the witnesses at the defendants’ preliminary hearing.

Instead, the impeaching statements were offered only at trial, after the witnesses had become unavailable.

Although the decision does not make this point clear, it appears the inconsistent statements were admitted both for impeachment and for their truth. (Beyea, supra, 38 Cal.App.3d 176, 186, 193, fn. 6.) The Beyea court concluded it would be unfair to allow a party to impeach the former testimony of its own unavailable witnesses with their inconsistent hearsay statements unless the opposing party was able to cross-examine the declarant about the inconsistent statements. (Beyea, supra, 38 Cal.App.3d at p. 193, quoting Am-Cal Investment Co. v.

Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526, 542 [63 Cal.Rptr. 518].) Beyea acknowledged that the language of Evidence Code

section 1202 contains no such limitation, but referred to the Law Revision Commission’s comment to

section 1202, which states that the statute provides “ ‘a uniform rule permitting a hearsay declarant to be impeached by inconsistent statements in all cases, whether or not the declarant has been given an opportunity to explain or deny the inconsistency,’ ” with the caveat that “ ‘[i]f the hearsay declarant is unavailable as a witness, the party against whom the evidence is admitted should not be deprived of both his right to cross-examine and his right to impeach.’ ” (Beyea, at p. 193.) The court in People v. Osorio (2008) 165 Cal.App.4th 603 [81 Cal.Rptr.3d 167], however, disagreed with Beyea’s conclusion.

In Osorio, the prosecution introduced the spontaneous statement of the victim to a paramedic. It then impeached that statement with one the victim made during a later police interview. The victim died before trial and the defense never had the opportunity to cross-examine her. The trial court admitted the victim’s statement to police for the limited purpose of impeaching the spontaneous statement.

The Osorio court held the prosecution could impeach the hearsay statements of its own unavailable witness with her later inconsistent hearsay statement. (Id. at pp. 615-617.) Osorio reasoned there is nothing in the plain language of Evidence Code

section 1202 “that gives rise to any ambiguity or lends support to Beyea’s

interpretation.” (Osorio, at p. 616.) Moreover, Osorio noted that when the comments to the

section were drafted in 1965 there was a general rale against impeaching one’s own witness, but that rule was abrogated by the passage of Evidence Code

section 785, part of the same bill that added Evidence Code

section 1202, which allows the credibility of a witness to be attacked by any party. (Osorio, at pp. 616-617.) Because the Legislature did not expressly make Evidence Code sections 785 and 1202 mutually exclusive, Osorio concluded that both sections should be read together and “as a single statute, these two sections allow a prosecutor to use a prior inconsistent statement to partially impeach a hearsay statement the prosecutor had previously introduced.” (Osorio, at p. 617.) Accordingly, if the statements in Beyea were admitted for their truth, the Court of Appeal correctly concluded that the admission was error.

The Beyea defendants were deprived of their opportunity to cross-examine as to those inconsistent statements not brought forward during the preliminary hearing. Similarly, the result in Osorio was also correct. The inconsistent statements at issue in Osorio were not hearsay because they were not admitted for their truth. Accordingly, the defendant’s inability to cross-examine the declarant about those statements raised no confrontation clause concerns.

In sum, the confrontation clause does not prohibit the prosecution from impeaching the former testimony of its own unavailable witnesses with their inconsistent statements, provided those statements are admitted only for impeachment purposes. However, under Evidence Code

section 1202, the prosecution may not offer for their truth the inconsistent statements of a declarant who does not testify at trial. (People v. Williams, supra, 16 Cal.3d at p. 669.) Any language to the contrary in People v. Beyea, supra, 38 Cal.App.3d 176, is disapproved. Here, Eva’s statements to Ruth about the restraining order were not admitted for their truth. They were relevant for the limited purpose of impeachment and properly admitted. d.

Opinion Evidence We also reject the contention that Ruth’s testimony constituted improper opinion testimony about what Eva was thinking and intending when she obtained the restraining order. “Generally, a lay witness may not give an opinion about another’s state of mind,” but “a witness may testify about objective behavior and describe behavior as being consistent with a state of mind.” (People v. Chatman (2006) 38 Cal.4th 344, 397 [42 Cal.Rptr.3d 621, 133 P.3d 534].) Ruth’s testimony was based on Eva’s objective behavior. Eva verbalized her own state of mind. (Evid.

Code, § 1250.) The actions Ruth observed that day were entirely consistent with that mindset. Moreover, Eva’s expression of fear and her desire to obtain a restraining order were not admitted for their truth, but to impeach her preliminary hearing testimony in which she denied writing that she was afraid of defendant and denied knowing about a restraining order. 2. Eva’s Statements After the Murders Relying on the spontaneous statement exception to the hearsay rule (Evid.

Code, § 1240), the prosecutor filed a pretrial motion to introduce hearsay statements Eva made to her neighbor, John Adams, immediately after the shooting, statements she made to an arriving police officer, and statements she made about an hour later to her son James and his wife in the presence of a city mental health worker.

Defendant opposed the admission of these statements, arguing they did not qualify as spontaneous statements, were improper opinion testimony, were more prejudicial than probative, and were unreliable and untrustworthy in violation of due process and his Sixth Amendment right to confrontation. The court rejected defendant’s arguments, admitting all of these statements under Evidence Code

section 1240. Defendant challenges each of these rulings. a. Eva’s Statements to Officer Nielsen Based on the dispatched report of a murder-suicide, Officer Nicholas Nielsen contacted Eva and her neighbor outside Eva’s home. In the 911 call, neighbor John Adams had erroneously reported that defendant had killed his sister and then shot himself. The dispatcher repeated Adams’s report in sending officers to the scene. Nielsen described Eva as teary eyed, distraught, and very agitated. She appeared anxious to talk with him.

As he approached her, Eva spoke first, telling him her daughter and grandson had been shot and were probably dead. Because Eva’s statement suggested an armed murderer was at large, Officer Nielsen asked questions to obtain more information before the officers risked going inside the home to aid the victims. Eva explained that defendant had come into the house earlier and had spoken with her briefly. He then argued with his sister and shot the victims. Eva said she did not see defendant carrying a gun, but assumed he had concealed it. Nielsen asked if defendant was still inside the home.

Eva said she did not know, and described the clothing defendant had been wearing. According to Nielsen’s report, Adams pointed out that defendant was probably gone because his car was no longer in the driveway. Nielsen spoke with Eva and Adams for 10 to 15 minutes. Eva remained upset throughout the conversation. Nielsen took notes as they spoke so he could accurately relay information to the dispatcher and his fellow officers. Three to four minutes into the conversation with Eva and Adams, other officers arrived and went inside the main house.

After the conversation, Nielsen checked defendant’s cottage but did not find him there. Because Eva’s statements were made out of court and admitted for their truth, they constituted hearsay. (Evid. Code, § 1200, subd. (a).) We first consider whether they fell under a California hearsay exception and then whether their admission violated the Sixth Amendment of the United States Constitution as it has been applied in Crawford and its progeny. (

i) Spontaneous Statement “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [1] (

a) Purports to narrate, describe, or explain

an act, condition, or event perceived by the declarant; and [(j[] (

b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240.) Defendant does not dispute that Eva was hysterical when she spoke with Officer Nielsen. Under these circumstances the court properly concluded that the statements were made when Eva was under the domination of nervous excitement caused by the event, so that her utterances were spontaneous and unreflecting. Instead, defendant argues that the statements were inadmissible because there was insufficient foundation that she had “witnessed” the killings.

She did not tell anyone she had actually seen the shootings, and told an inspector the next day that she could not see into the dining room where the shots were fired. Defendant’s argument fails. The Evidence Code does not use the term “witnessed by.” Rather, it refers to

an act, condition, or event “perceived by” the declarant. (Evid. Code, § 1240, subd. (a).) While the phrase “witnessed by” was used in People v. Gutierrez (2009) 45 Cal.4th 789, 809 [89 Cal.Rptr.3d 225, 200 P.3d 847], the phrase was used to describe the circumstances in that case. It was not used to modify the language of the statute itself by imposing a different foundational requirement. More importantly, in People v.

Poggi (1988) 45 Cal.3d 306 [246 Cal.Rptr. 886, 753 P.2d 1082], the court noted spontaneous statements may include the “ 1 “sincere expression” ’ ” of the speaker’s “ ‘ “actual impressions and belief.” ’ ” (Id. at p. 318, quoting Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 468 [106 P.2d 895].) There are many ways someone can acquire the personal knowledge required to support a conclusion that the person perceived an event. Eva saw defendant enter her room and leave. Shortly thereafter, she heard Yersenia’s exclamation followed by a gunshot. She emerged from her room to see Versenia fall, bleeding.

She was understandably traumatized by what she perceived: a shooting in her home, her daughter and grandson lying on the floor mortally injured. These observations were clearly relevant to the circumstances of the shooting. Nothing indicated she was insincere in her quite logical belief that defendant had shot the victims. At best, the issue of whether Eva actually saw defendant fire the shots went to the weight of her statements, not their admissibility. (People v.

Riva (2003) 112 Cal.App.4th 981, 996 [5 Cal.Rptr.3d 649].) Accordingly, Eva’s statements to both John Adams and Officer Nielsen properly qualified as spontaneous statements. (ii) Sixth Amendment Right to Confrontation In Crawford, the United States Supreme Court reexamined the application of the Sixth Amendment to the admission of hearsay statements. Crawford did not replace a conventional hearsay analysis. Instead, it added a second layer of inquiry when hearsay is offered against a criminal defendant.

Crawford established, except in circumstances not relevant here, if a hearsay statement is testimonial in nature it cannot be introduced against a criminal defendant unless the declarant is unavailable, and the defendant had a previous opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 53-54.) The Crawford court did not give a comprehensive definition of the term “testimonial” and subsequent cases have addressed how the rule should be applied. The court has recently considered that question in Michigan v. Bryant (2011) 562 U.S. __ [179 L.Ed.2d 93, 131 S.Ct. 1143] (Bryant).

There, the court reviewed the evolution of the Crawford rule and iterated that “ ‘the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.’ ” (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1152], quoting Crawford, supra, 541 U.S. at p. 50.) “[T]he word ‘witnesses’ in the Sixth Amendment” is defined as “ ‘those who “bear testimony.” ’ ” (Bryant, supra, 562 U.S. at pp. __ - __ [131 S.Ct. at pp. 1152-1153], quoting Crawford, supra, at p. 51.) “Testimony,” in turn, is a “ ‘ “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” ’ ” (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1153], quoting Crawford, supra, at p. 51.) The majority opinion in Bryant again pointed out that “not all those questioned by the police are witnesses” for purposes of the Sixth Amendment and not all “ ‘interrogations by law enforcement officers’ [citation], are subject to the Confrontation Clause.” (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1153], quoting Crawford, supra, 541 U.S. at p. 53.) Bryant noted that in the cases decided to date, the term “police interrogation” has been used to describe “ ‘interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator.’ ” (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1153], quoting Davis v.

Washington (2006) 547 U.S. 813, 826 [165 L.Ed.2d 224, 126 S.Ct. 2266] (Davis).) In Bryant, the court contrasted the companion cases decided by Davis, State v. Davis (2005) 154 Wn.2d 291 [111 P.3d 844] and Hammon v. State (Ind. 2005) 829 N.E.2d 444, to tease out the factors at play in determining what facts make a hearsay statement “testimonial.” (Bryant, supra, 562 U.S. at pp. __ - __ [131 S.Ct. at pp. 1153-1156].) In State v. Davis, a woman called 911 to report her boyfriend was beating her with his fists.

Her statements were made in the present tense and the police operator asked for the perpetrator’s name, which the caller gave. She then told the operator the boyfriend had driven off. The 911 tape was admitted at defendant’s trial when the caller failed to appear. (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1153], citing Davis, supra, 547 U.S. at pp. 817-819.) In Hammon v. State, police went to the Hammon home following a report of domestic violence. They arrived to find Amy Hammon alone on her front porch. She initially told them that nothing was wrong. Officers went inside with Amy’s permission.

There, they found broken glass on the floor and Hershel Hammon in the kitchen. One officer kept Hershel there while Amy was taken into the living room and told the other officer what happened. Amy then wrote and signed a “battery affidavit,” summarizing Hershel’s assault on her. When Amy failed to appear at Hershel’s trial, both her oral and written statements were admitted through an officer’s testimony. (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1154], citing Davis, supra, 547 U.S. at pp. 819-820.) As discussed in Bryant, the Davis court distinguished the two cases, holding the statements in Hammon v.

State were testimonial while those in State v. Davis were not. The Bryant court summarized the differences between them. In Davis, the events related to the operator were actually happening, as opposed to past, completed events. The beating of the caller was an ongoing emergency that the statements were elicited to resolve. The statements were not formal but a call for help. By contrast, in Hammon v. State whatever had occurred was over when the officers arrived. Amy said there was nothing wrong and there was no apparent ongoing danger. The questioning of Amy was part of an investigation into past conduct.

Finally, the circumstances in which Amy was subjected to—organized and structured questioning in a separate room, focused on past events that were potentially criminal and resulted in the preparation of a written and signed affidavit—were sufficiently formal to be consistent with the acquisition of a testimonial statement. (Bryant, supra, 562 U.S. at pp. __ - __ [131 S.Ct. at pp. 1154-1155].) The Bryant court concluded from its review of Davis, “Thus, the most important instances in which the [Confrontation] Clause restricts the introduction of out-of-court statements [offered for their truth] are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial. [Fn. omitted.]” (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1155].) While the court specifically reserved whether “ ‘statements made to someone other than’ ” a law enforcement officer might be testimonial (id. at p. __, fn. 3 [131 S.Ct. a

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