THE PEOPLE, Plaintiff and Respondent, v. ROYAL CLARK, Defendant and Appellant, 52 Cal. 4th 856

Opinion CANTIL-SAKAUYE, C. J. After a jury found Royal Clark competent to stand trial, another jury convicted him of the first degree murder of Billie-Jo Laurie Farkas (Pen. Code, §§ 187, subd. (a), 189), the premeditated attempted murder of Angie Higgins (§§ 187, subd. (a), 664, subd. (a)), two counts of robbery (§§ 211, 212.5, subd. (b)), the attempted rape of Farkas (§§261, subd. (a)(2), 664), assault upon Higgins by force likely to produce great bodily injury (§ 245, subd. (a)(1)), and the false imprisonment and kidnapping of Higgins (§§ 236, 207, subd. (a)).

The jury found true the three special circumstance allegations that the murder was committed while defendant was engaged in the commission of robbery and attempted rape (§ 190.2, subd. (a)(17)(A), (C)), and for the purpose of preventing the victim’s testimony in a criminal proceeding (§ 190.2, subd. (a)(10)).

The jury also found true the allegations that defendant personally used a deadly weapon (a rope) during the commission of the murder, attempted murder and assault (§ 12022, subd. (b)), and that he intentionally inflicted great bodily injury on Higgins during the commission of the attempted murder and assault (§ 12022.7). The jury further found that defendant, who entered pleas of not guilty and not guilty by reason of insanity, was sane when he committed all of the charged crimes. Following the penalty phase of the trial, the jury returned a verdict of death.

Defendant moved for new guilt and penalty trials (§ 1181) and for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced defendant to death. The court also sentenced defendant to consecutive determinate terms totaling 15 years for the noncapital offenses, but stayed sentence on the premeditated attempted murder. Defendant’s appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment. I. FACTS A. Guilt Phase Evidence 1.

Prosecution evidence At the time of the crimes in January 1991, defendant was 27 years old and resided with Donna Kellogg and their young children in Kellogg’s Fresno home. The murder victim, 14-year-old Billie-Jo Laurie Farkas (Laurie), was Kellogg’s cousin. Laurie’s mother, Venus Farkas, testified that Kellogg introduced defendant to the family in 1986 when he and Kellogg moved to the Fresno area. According to Mrs. Farkas, defendant visited the Farkases’ residence often.

In the year preceding the murder, family members noticed that defendant’s visits became more frequent and that he was paying particular attention to Laurie. Mrs. Farkas testified that defendant often asked Laurie to go places with him and was teaching her to drive his car. According to Laurie’s older sister, Angelique, defendant sometimes commented on the tightness of Laurie’s clothing. He also once asked the girls whether they were virgins, how “far” they had “gone with boys,” and if they had ever considered having an older, more experienced boyfriend like him.

Defendant’s growing interest in Laurie also was apparent to individuals outside the family. Defendant’s friend Michael Hall testified that, in late August 1990, six months before the offenses occurred, he warned defendant to stay away from Laurie’s house. Defendant responded, “I know she wants me.” When Hall pointed out that Laurie was Kellogg’s cousin and that she was only 14 years old, defendant replied, “So what?” or “I don’t care.” Laurie’s best friend was 15-year-old Angie Higgins (Angie). She was acquainted with defendant because he was sometimes at the Farkases’ home when she was there with Laurie.

Angie testified that defendant once appeared at their school unexpectedly at the end of the day to give Laurie and her a ride home. Laurie’s father, William Farkas, Sr., testified that when he asked defendant why he picked up the girls, defendant said he was “in the area.” On Saturday afternoon, January 26, 1991, Angie met Laurie at the Farkases’ home and she and Laurie decided to go to a movie. Around the same time, defendant called the Farkases, saying he wanted to come by the house with a new video game. According to Mr.

Farkas, defendant arrived about 45 minutes later and played the video game with Laurie’s brother. At some point he stopped playing, entered Laurie’s bedroom, and spoke with her as she was preparing to leave for the movie. Angie testified that she overheard some of their conversation, including defendant asking Laurie if she wanted to go “cruising.” Mr. Farkas testified that he drove Laurie and Angie to the Festival theater and dropped them off in front around 8:15 p.m. Laurie took $7 with her. Angie had $10. According to Mrs. Farkas, about 10 to 15 minutes after Mr.

Farkas left with the girls for the movie theater, defendant asked her where they had gone. After being informed, he then grabbed his jacket and left, telling Mrs. Farkas he was going to meet a couple of friends. She found his abrupt departure unusual because defendant ordinarily would stay and play the video games that he had brought over. Meanwhile, Laurie and Angie discovered that the movie they wanted to see had already started, so they decided to wait for the next showing. Angie testified that to pass the time, they went into a nearby music store.

When they left the store, defendant drove up next to them and invited the girls to get inside his car, which they did. As Angie recounted, defendant first drove to a nearby McDonald’s restaurant because Laurie said she was hungry. When they arrived, defendant asked Laurie to buy him something. She refused his request saying, “Buy yourself something to eat. You’ve got your own money.” Defendant responded that he did not have any money. While defendant stood near the doorway of the restaurant watching the girls, Laurie bought a milkshake and french fries and put her change into her right pants pocket.

Angie spent $1.12 for a milkshake and put her remaining $8.88 into her left pants pocket. The group returned to the car and defendant drove to Roeding Park. According to Angie, defendant told them people he knew would be “kicking back” there. They drove around the park for 20 minutes but saw only parked vehicles. By now, it was after 9:00 p.m. and, according to Angie, Laurie said she wanted to return to the movie theater. Defendant responded there was another place where his friends would be “kicking back” and that he needed to talk with one of them.

With the girls’ assent, defendant drove off, entering Highway 99 and exiting at Herndon Avenue. They stopped briefly at a service station. Angie testified that after leaving the service station, defendant drove for a while until they reached Lost Lake Recreation Area (Lost Lake). They traveled along a winding road until it became a dead end. Seeing that the park was deserted, the girls suggested they leave. Defendant said he needed to use the restroom. He made a U-turn and headed back toward the park entrance, stopping at the first toilet facility en route.

Seeing a car parked in front, he said, “I don’t trust this car,” and continued driving. He pulled up to the next facility and went into the restroom while the girls stayed in the car. After several minutes passed, Laurie moved over to the driver’s seat, started the car, and drove a short distance to an area just beyond the restroom. Defendant then started yelling that he needed something with which to wipe himself. At first, the girls ignored him. However, after locating some paper towels in the backseat, Laurie drove the car to the other side of the restroom.

Angie went halfway to the restroom door with the paper towels in hand, but then returned to the car, telling Laurie that she should deliver them to defendant because she knew him better. Laurie drove to the other side of the restroom. Meanwhile, defendant continued shouting for the girls to bring him toilet paper and yelled at them to “stop messing with [his] car.” Laurie finally agreed to bring the paper towels to defendant.

Angie testified that almost immediately after entering the restroom, Laurie started screaming and yelling, “Roy, stop” and “Roy, leave me alone.” Laurie then called out for Angie to help her. As Angie neared the restroom’s entrance, she heard a scuffling sound and then silence. She went inside and saw Laurie lying facedown on the concrete floor, motionless. Defendant was sitting on the back of his legs with Laurie’s head between his knees. Angie shouted at defendant and grabbed Laurie’s legs to pull her away from him. But defendant jumped up, knocked Angie to the ground and started choking her with his hands.

When Angie struggled, defendant used his knee to slam her head to the floor. As the attack continued, Angie’s nose began to bleed and her resistance waned. Defendant then let go of her and walked out of the restroom. Angie crawled over to Laurie and shook her back to consciousness. Meanwhile, defendant reentered the restroom with a small flashlight, which he shone around the area. The floor was spattered with blood and strewn with rings, earrings, and other small items that Laurie had been carrying in the inside pocket of her jacket.

The jacket, which Laurie had been wearing when she first entered the restroom, was lying in the comer. Laurie picked up the jacket and put it back on, then retrieved the items from the floor. Defendant walked out again. The girls were frightened and wondered what to tell their parents. They decided to tell defendant that they would say they had gotten into a fight at the movie theater. The next time defendant entered the restroom, he carried a small container, which he filled with water and poured on the floor to rinse off the blood. At some point, he hugged Laurie and told her he was sorry.

When Laurie told defendant about what they planned to say to their parents, defendant replied, “No, I don’t trust you. You’ll tell like you did the last time.” Defendant left the restroom again and returned holding a small rope, which he used to bind Angie’s hands behind her back. He then pulled Laurie off to the side, placed his hand around the back of her neck, and tried to kiss her. Laurie twice pulled away, telling defendant, “I can’t. I’m on the rag,” a statement Angie interpreted to mean she was having her monthly period. Defendant again left the restroom.

Defendant returned with another rope and tied Angie to a toilet. He then directed Laurie to accompany him to find fresh water with which to clean Angie. Laurie initially refused to leave and held on to Angie’s leg. Defendant insisted, protesting that Laurie did not trust him. Laurie acquiesced and left the restroom with him. Angie heard defendant and Laurie walk next door to the women’s restroom. Shortly after that, she heard Laurie screaming and pleading, “Roy, don’t,” and “Leave me alone,” and the sound of scuffling. Laurie also called out for Angie, and started crying and then gasping for air.

The gasping continued for a while, then there was silence. According to Angie, defendant reentered the men’s restroom and told her that Laurie had run away and that he was going back out to look for her. Angie heard footsteps and the shutting of a car door. Defendant then returned to the restroom and announced they were going to leave without Laurie. He untied Angie from the toilet but kept her hands bound. After wiping the blood from Angie’s face, defendant directed her to his car, which was now parked closer to the restroom.

Defendant placed Angie in the front passenger seat and covered her with Laurie’s jacket, which he had grabbed from the backseat. He then asked her, “Will you do it?” which she understood to mean would she have sex with him. She declined, saying that she was waiting for someone special, to which defendant responded, “See, both of you don’t trust me.” When Angie first got into defendant’s car, the clock on the dashboard showed 11:11 p.m. Angie testified that defendant initially drove back to the dead end, saying he was looking for Laurie. He then turned around and drove to the park entrance.

Just outside the park, defendant stopped at a pay telephone. He said he wanted to call Laurie’s mother but did not have any change. When Angie mentioned that she had money in her pocket, defendant reached in and removed all of it. He put the dollar bills in the car’s coin compartment and held the change in his hand. Angie saw defendant insert the coins into the pay slot and enter a telephone number, but he hung up without speaking to anyone and retrieved the change. Defendant returned to the car and explained to Angie that he did not know what to say to Laurie’s mother.

After leaving the public telephone, defendant told Angie he would take her back to Laurie’s house. He entered the freeway, but drove past the exit. When Angie pointed out to defendant that he had missed the turnoff, he told her he had changed his mind and that they were going to Kellogg’s house to get Angie cleaned up. Defendant continued on the freeway and exited in the town of Selma. After driving around a residential area, defendant informed Angie they were not going to Kellogg’s house because Kellogg would “kick him out.” Instead, he would take Angie to Laurie’s house.

Before reentering the freeway, defendant pulled into a service station and directed Angie to stay low so no one would see her. It was now almost 1:00 a.m. Before defendant got out of the car, he retrieved the dollar bills he had taken from Angie and placed in the coin compartment earlier that night. Defendant left the service station and entered the freeway. But instead of traveling north toward the Farkases’ home, he drove south, which Angie immediately brought to his attention. Defendant exited and reentered the freeway going in the opposite direction, but passed the exit for the Farkases’ residence.

When Angie mentioned to defendant that he had once again missed the exit, he replied that he wanted to go back to look for Laurie. Defendant exited the freeway at the Herndon Avenue turnoff, then turned onto Ingram Avenue. Angie had no memory of what occurred at this point, however, and her next recollection was of defendant driving around a rural area of southwest Fresno called “Chateau Fresno.” Angie repeatedly asked defendant if he was lost. He eventually admitted that he did not know where he was, pulling over to the side of the road to look for a map.

When another car approached, defendant quickly started the engine and drove off. Defendant soon pulled over again. Angie noticed it was now after 2:00 a.m. By this time, she had managed to untie her hands. Defendant gave her a cigarette lighter and directed her to get out of the car and walk to the trunk so he could look for a map while she held the lighter. As she stood by the back bumper holding up the lighter, defendant approached her from behind and choked her with a cord until she lost consciousness.

Defendant sped away from the scene around 3:00 a.m. when a motorist approached his parked vehicle from the opposite direction. Joel Suarez testified that as he drove past the car’s former location, he saw a body lying on the side of the road. When he made a U-turn and drove by again, he noticed movement and went to a friend’s house to notify police. Responding officers testified they had great difficulty communicating with Angie because her voice was so raspy. But she was able to nod her head “yes” when asked if she knew who had beaten her and shook her head “no” when asked if she had been raped.

Emergency personnel transported Angie to a nearby hospital, where she was treated for her injuries and released three days later. The emergency department physician who treated Angie testified that her eyes showed signs of hemorrhaging and her face and neck were swollen. An abrasion encircled more than half her neck and she had bruises behind her ears. Based on the nature and extent of Angie’s injuries, the prosecution’s medical expert expressed the opinion that she had been strangled by someone who stood behind her and pulled a ligature against the front of her neck.

He also noted a marked abrasion on the left side of her face, but was uncertain what had caused it. Between 1:00 and 1:30 a.m., several hours before Joel Suarez discovered Angie, another motorist noticed Laurie’s body lying on a rural road in nearby Madera County. Gilbert Garcia testified that after realizing he had seen a body, he stopped and exited his van. Pressing his fingers to Laurie’s neck, Garcia found her skin cold and detected no pulse. He also felt a rope encircling her neck. Garcia left the scene to call police.

According to one of the responding officers, Laurie’s blouse was pulled up and her bra was above her breasts. Another officer testified there was no money in Laurie’s pants pockets. Forensic pathologist Jerry Nelson, M.D., performed an autopsy shortly after the discovery of Laurie’s body. He measured Laurie’s height as five feet one and one-half inches and estimated her weight as 110 to 115 pounds. Dr. Nelson testified that he observed small petechial hemorrhages on Laurie’s face and eyelids and a larger “flare of hemorrhages” in, the whites of her eyes.

There also was blood inside her nose and a “frothy, sanguineus stain” in the pharynx at the back of her mouth. Given these findings, and the prominent ligature abrasion on her neck, Dr. Nelson determined the cause of Laurie’s death to be asphyxia due to ligature strangulation. In his opinion, the strangulation rendered Laurie unconscious in four to six seconds. Dr. Nelson also described lacerations above Laurie’s right eyebrow and abrasions on the left side of her neck. Based on these injuries, Dr.

Nelson surmised Laurie was conscious when the ligature was wound around her neck three times and tied in place, and that she struggled to push it away or loosen it. Dr. Nelson further testified Laurie sustained other, nonfatal injuries close in time to her death based upon several hemorrhage sites of varying size within the scalp and on the surface of the skull. In Dr. Nelson’s opinion, these injuries could have been caused by either multiple blunt blows to the head or the head striking the concrete floor. Dr.

Nelson also observed that although four ribs on Laurie’s left side were fractured, there was no bruising of the skin or soft tissue over the area. In his view, the fractures were probably caused by blunt impact from a smooth, rounded object, which could have been a person’s knee. Dr. Nelson could not determine, however, whether the fractures occurred before or after Laurie was strangled. Dr. Nelson informed the jury that at the time of the autopsy, Laurie had a sanitary pad in place and there was blood in her vagina. During a vaginal examination, he found nothing consistent with sexual assault.

Within 12 hours of the discovery of Laurie’s body, officers from the Fresno County Sheriff’s Office located defendant at his residence and took him into custody. Mr. Farkas had given defendant’s address to the officers after asking a relative to have defendant telephone him with that information. According to Mr. Farkas, when defendant called the Farkases’ residence as requested, he inquired about the Super Bowl party that was scheduled for that afternoon and indicated he was planning to attend.

Officer Melinda Ybarra testified that when she and her partner arrived at defendant’s home around noon on January 27, 1991, he was standing in the driveway with a small child. In the garage there was a faded orange Datsun sedan, which matched Suarez’s description of the vehicle that sped away from the location where he discovered Angie on the roadway. The officers transported defendant to the Fresno County Sheriff’s Office headquarters. There, Officer Ybarra noticed minor scratches on the right side of defendant’s face.

Officer Souza testified that he collected the clothing defendant was wearing at the time of his arrest, which included white boxer shorts. He found 8 cents on defendant’s person and no money in the wallet seized from defendant’s residence. Forensic testing of defendant’s clothing and other items collected during a search of his residence and vehicle, although not conclusive, linked him to the crimes in important respects.

For instance, according to crime scene technician William Stones, the shoe tracks found at the Chateau Fresno and Lost Lake crime scenes had similar characteristics, that is, the same length, width, tread wear, design and wear pattern, as the Nike shoes seized from defendant’s residence. Criminalist Allen Boudreau testified that tire marks, and pine needles and hair found inside defendant’s car likewise connected him to the crimes. Serology expert Andrea Van der Veer de Bondt testified extensively concerning her testing of the bloodstains on various articles of clothing worn by Laurie, Angie, and defendant.

Several blood smears originating on the inside of Laurie’s blouse were consistent with Angie’s blood and inconsistent with Laurie’s blood. She agreed with the prosecutor that a hand might have smeared the blood but she could not say so conclusively. De Bondt believed that Laurie’s bra had been displaced when the blood was smeared or transferred onto it. De Bondt also testified about a three-inch, off-white stain on the left front area of the boxer shorts that defendant was wearing at the time of his arrest.

The shorts tested positive for the presence of P-30, a protein produced in the prostate gland that is one of the components of semen. De Bondt was unable to determine the identity of the donor or how old the stain was. Urologist Gary Storey, M.D., testified regarding the physiological significance of the semen stain. Based on the results of the P-30 analysis, Dr. Storey was certain that the stain on defendant’s shorts was the result of ejaculation following sexual arousal. 2. Defense evidence The defense presented evidence to support the theories of unconsciousness and diminished actuality.

Defendant testified in his own defense, providing his account of the events leading up to the crimes and describing his background and psychiatric history. The defense also called three mental health experts who testified about defendant’s brain damage and the mental disorders and complex partial seizures that resulted from it. a. Defendant’s version of the crimes Defendant’s account of his activities preceding the crimes was consistent in some respects with the prosecution witnesses’ version of events.

Defendant testified that on Saturday, January 26, 1991, he left his home around 7:00 p.m., made several stops, and then drove to the Farkases’ home to play video games with Laurie’s younger brother. At one point, he spoke with Laurie in her bedroom and asked her if she and Angie wanted to go “cruising,” but they did not make any plans to get together that evening. Defendant testified that he left the Farkases’ house around 20 to 30 minutes after speaking with Laurie, and drove to a bowling alley. He played an arcade game using no more than $1 of the $5 in change that Kellogg had given him.

According to defendant, as he drove home from the bowling alley, he noticed Laurie and Angie walking on the sidewalk on the opposite side of the street. He turned the car around and pulled up beside them, and the girls got inside. Defendant briefly stopped at a nearby McDonald’s restaurant because Laurie said she wanted something to eat. Defendant stayed in the car while the girls went inside to order their food; he could not recall conversing with either one of them before they exited the vehicle.

Several minutes later, defendant went inside to use the restroom, but changed his mind after seeing the long line of people and waited for the girls at the front door. When the group returned to the car, he suggested they go to Roeding Park to look for parties. The girls said, “Let’s go.” Defendant testified that he drove around Roeding Park but they saw no one they knew and left a short time later. After stopping at a service station to purchase about $2 worth of gasoline, defendant suggested they go to Lost Lake to see if some of his friends might be there.

Defendant explained that when the group arrived at Lost Lake, he drove to a picnic spot but saw no one there. He turned around and headed back toward the exit, then needed to find a restroom. About five minutes after using the toilet, defendant realized there was no toilet paper and yelled for the girls to bring him something with which to wipe himself. But as he sat on the toilet, he could hear the girls laughing and driving his car around. He became upset and very angry. When Laurie walked into the restroom with a smirk on her face, defendant became enraged and filled with hate.

He jumped on Laurie, then got onto his knees and started choking her with both of his hands until she lost consciousness. In the meantime, Angie entered the doorway and crawled toward Laurie. Defendant lunged at Angie and started hitting her in the face with his fists and choking her. According to defendant, after that, everything went blank. Defendant testified that his memory of the remainder of the evening was patchy.

He remembered dragging Laurie’s dead body outside the restroom, but did not recall taking her to the women’s restroom, tying a rope around her neck and killing her, or placing her body in the trunk of his vehicle. Although he believed he must have killed her, he did not know why he did so. As for the evening’s other events, defendant remembered standing at a pay telephone and driving with Angie in the fog, but he had no recollection of how he ended up back at his own house. When he awoke around 9:00 a.m., he had a feeling that “something wasn’t right” but no memory of what had happened the night before.

Although defendant slept in the clothing he had been wearing the previous night, he removed it and changed into a pair of previously worn white boxer shorts, Raiders shorts, and blue jeans after Kellogg told him she was collecting the dirty laundry to wash. b. Defendant’s background and mental health history Defendant testified that his parents separated in 1965 when he was three years old. His mother moved him and his siblings first to San Francisco and then to Los Angeles, where they lived on welfare in a one-bedroom house.

When he was 10 years old, he was hit accidentally in the head with a baseball bat and rendered unconscious. At the age of 13 or 14, defendant suffered a seizure, began running away from home, sometimes to travel across the country, and began to behave violently toward family members. In October 1976, he locked his brother and mother out of the house, then hurled a bottle at his brother and threatened his mother with a butcher knife. He was apprehended after escaping through a second-story window and committed to Los Angeles County+University of Southern California Medical Center (LAC+USC) for several weeks.

Defendant was returned to LAC+USC in December 1977, again following an incident in which he became angry at his mother. This time, defendant locked all of the doors to the house and set fire to some curtains. His intention at the time was to commit suicide, although he could not remember much of the incident before setting the fire. During this hospitalization, defendant complained of auditory hallucinations. When defendant was released from his second commitment at LAC+USC, he failed to follow through with the recommended outpatient treatment.

Within one month, in January 1978, he was hospitalized again, this time at Camarillo State Mental Hospital (Camarillo). In the incident leading to that hospitalization, defendant’s sister and her friend were making noise in the house while defendant was trying to sleep. When he asked them to quiet down, they began to tease him and call him names, which enraged him. Defendant locked the girls in the bedroom, poured gasoline on the door, and set it on fire. Defendant was arrested and taken to a juvenile detention facility.

After feigning a suicide attempt, he was first transferred to LAC+USC and ultimately placed in a voluntary program for teenagers at Camarillo. Defendant testified that he did not remember walking to the service station to fill a gasoline can or returning to the house. He also testified that after setting fire to the door, things “went black” and he had a “funny feeling” when he woke up the day after the incident. While at Camarillo, defendant attempted suicide by hanging himself with a bedsheet.

Although the teen program was designed to last six months, defendant spent 11 months at the facility and was eventually discharged in January 1979 without having successfully completed all of the program’s levels. After his release from Camarillo, defendant returned to Los Angeles to live with his mother. In late 1980 or early 1981, he set off by train to visit relatives in New Orleans. When passing through Texas, however, defendant was arrested for robbery. Defendant pleaded guilty to the robbery charge and served a prison term in Texas.

After his release in June 1983, at age 21, he returned to Los Angeles and stayed in youth shelters. Shelter administrators helped him obtain employment in the California Conservation Corps. He left that program after three months and returned to Los Angeles in January 1984, this time moving into a garage converted into a living space. Defendant admitted that during this period, he broke into other garages, stealing tools to sell for money to buy food. He also acknowledged being arrested for and/or being convicted of various crimes, including burglary, joyriding, robbery, and battery against his former girlfriend.

He served a two-year prison term for the robbery. Following his release from prison in 1986, defendant lived in a halfway house in Inglewood for three months and worked as a warehouse clerk. He left that employment and relocated to Long Beach, where he met Donna Kellogg. He eventually moved with her to Fresno, where they lived as husband and wife. c. Expert testimony Psychologist Paul S. Berg, Ph.D., examined defendant for the defense. After his first interview with defendant, which included administering a series of preliminary tests for brain abnormality, Dr. Berg suspected the possibility of brain damage.

He asked Neuropsychologist Ronald McKinsey, Ph.D., to determine whether there was an organic component to defendant’s mental status. Dr. McKinsey testified that he tested defendant using the Luria-Nebraska Neuropsychological Battery. He concluded that defendant suffered brain dysfunction in the frontal and temporal lobes. As Dr. McKinsey explained, individuals with frontal lobe damage exhibit poor judgment, poor control of impulses and emotions, unreliability, and immaturity. They can also suffer from organic personality syndrome, a disorder associated with recurrent outbursts of aggression and rage.

To further confirm the results of his evaluation, Dr. McKinsey asked Neurologist Sateesh Apte, M.D., to administer a quantitative electroencephalogram (qEEG), which detects and “maps” the brain’s electrical activity. Dr. Apte testified that testing showed moderate to severe dysfunction in defendant’s frontal and temporal lobes that more likely was caused by trauma than by heredity. He explained that individuals with temporal lobe dysfunction can suffer lack of emotional control and impaired memory indexing, which is an inability to keep a series of events in sequential order in memory. Dr.

Apte also found evidence suggesting defendant was vulnerable to seizures. In his opinion, defendant more likely than not suffered from seizures, including complex partial seizures. According to Dr. Apte, severe rage and hyperventilation can trigger a seizure. During a complex partial seizure, an individual can carry out “primitive” acts of violence, such as hitting, choking, or pushing someone, but have no recollection of what occurred. A person experiencing such a seizure cannot plan, reason, or consider the consequences of his or her actions. Dr. Berg testified that the findings of Drs.

Apte and McKinsey confirmed his initial suspicions of neurological damage and supported his diagnosis that defendant suffered from organic personality syndrome (hereafter sometimes OPS) manifested by rage reaction. Dr. Berg believed the diagnosis was substantiated further by defendant’s background and psychiatric history, which demonstrated a recurrent pattern of becoming angry and losing control when emotionally overstimulated. Dr. Berg found it significant that even when defendant was living in a highly structured environment at Camarillo, he had great difficulty controlling himself. Dr.

Berg also noted that defendant’s physicians at Camarillo prescribed chlorpromazine, which is contraindicated for individuals with a history of seizures because it may lower the seizure threshold. Dr. Berg further believed that on the night the crimes occurred, defendant suffered an OPS-induced rage reaction that interfered with his ability to form intent and affected his mental processes. According to Dr.

Berg, the significant preexisting stressors in defendant’s life at the time, coupled with his perception that Laurie was teasing and mocking him when she entered the restroom, rendered him explosive, impulsive, and out of control. In this mental state, defendant was incapable of thinking, considering, or making a judgment. Dr.

Berg explained that defendant’s claim to have no memory after lunging at Angie was consistent with rage reaction; in essence, his impaired brain became “unplugged.” He also believed it highly probable that defendant suffered a seizure and lost consciousness at the time he first attacked Angie. 3. Prosecution rebuttal evidence In rebuttal, the prosecution presented five medical and mental health experts who disagreed with the methodology, findings, and opinions of the defense experts.

Testimony by lay witnesses contradicted the foundation of the defense experts’ opinions and supported the diagnoses of the prosecution’s experts. The prosecution’s experts challenged the efficacy of qEEG testing and the Luria-Nebraska Neuropsychological Battery as diagnostic tools for determining brain'dysfunction, and disagreed with the defense experts’ conclusions. For instance, Neurologist Harvey Edmonds, M.D., testified that the qEEG has a high incidence of false positives. The witnesses also disputed the defense expert’s

interpretation of the test results. According to Neurologist Douglas Goodin, M.D., under the defense expert’s analysis, “almost everybody in the normal population will have some abnormality on [his or her] qEEG.” Similarly, Neuropsychologist Bradley Schuyler, Ph.D., testified that the results of the Luria-Nebraska Neuropsychological Battery could have reflected defendant’s limited educational background, not brain injury. The prosecution’s expert witnesses also disputed the defense experts’ opinions that defendant’s blow to the head from a baseball bat caused a serious brain injury that led to OPS. Dr.

Schuyler testified that such an injury would cause, at most, only mild dysfunction. Dr. Edmonds found that the likelihood such a scenario would result in posttraumatic epilepsy was less than 1 percent. Psychiatrist James Missett, M.D., and Clinical Psychologist Michael Thackrey, Ph.D., each found strong indications that defendant suffered from antisocial personality disorder (hereafter sometimes APD) rather than OPS. Dr. Missett believed it significant that none of the records from any of defendant’s prior hospitalizations suggested a diagnosis of OPS. Drs.

Missett, Thackrey, and Schuyler further concluded that even if defendant suffered from OPS, his organized, goal-directed behavior on the night of the crimes was inconsistent with the rage reaction associated with that diagnosis. For instance, Dr. Schuyler found that defendant’s repeated trips in and out of the bathroom to clean up the mess demonstrated that, once the initial attacks were over, he was no longer acting impulsively or out of control. According to Dr. Schuyler, amnesia is not a feature of rage reaction.

The prosecution experts further testified that even if defendant suffered from seizures, his sustained and goal-directed behavior on the night of the crimes could not be considered seizure activity. Dr. Goodin explained that seizures are short in duration and unprovoked. According to Dr. Edmonds, defendant’s conduct amounted to a complex group of actions that were responsive to his environment and thus inconsistent with his being in seizure. Lay witnesses’ testimony supported the prosecution experts’ diagnoses of antisocial personality disorder.

For instance, Donna Kellogg testified that she was defendant’s sole source of income, he never expressed a desire to find a job, and he habitually slept until noon each day. Kellogg and other witnesses also testified that they had never seen defendant behave violently when provoked, nor were they aware that he suffered from seizures or memory lapses. According to Kellogg and her sister, Tina Edmonds, defendant never “flew off the handle,” even when taunted with disparaging names. 4. Defense surrebuttal Dr. Berg criticized the observations and conclusions of the prosecution’s expert witnesses, disputing Dr.

Missett’s assertion that amnesia is not a feature of OPS, and testifying that although amnesia is not one of the diagnostic criteria of OPS, the literature documents cases in which individuals suffering from OPS experience amnesia. He also disapproved of Dr. Missett’s reliance on Angie’s testimony. Noting the significant differences between Angie’s preliminary hearing testimony and her testimony at trial, Dr. Berg believed Angie’s memory of events was no better than defendant’s. Based upon the scientific literature, Dr. Berg also disagreed with the experts’ assertions that a seizure lasts only minutes.

Finally, Dr. Berg was unpersuaded by the experts’ diagnoses of antisocial personality disorder because none of the experts had spent much time talking with defendant. B. Sanity Phase Evidence Dr. Berg testified for the defense again at the sanity phase. Drawing on the same materials he used to prepare for his guilt phase testimony, Dr. Berg believed that defendant became insane at the point he assaulted Angie and that he remained in that state during the next four to six hours until he returned home. According to Dr.

Berg, at the time defendant killed Laurie and attempted to kill Angie, he was unconscious as a result of a brain-damage-induced rage reaction and/or a seizure. Although unconsciousness is not the equivalent of insanity, Dr. Berg explained, defendant’s rage reaction “was so enormous and so beyond what we normally even think of as anger or rage that he could not at that time understand and know and appreciate . . . what he was doing or know the difference between right and wrong . . . .” The prosecution called two mental health experts to testify, both of whom disagreed with Dr.

Berg’s opinion that defendant was insane at the time he committed the crimes. Guilt phase expert Dr. Missett, and Psychologist Mark Brooks, Ph.D., found no indication that defendant suffered from a mental disease or disorder or that he was unconscious when he committed the crimes. In their view, defendant was aware of the nature of his actions and their possible consequences. C. Penalty Phase Evidence 1.

Prosecution evidence The prosecution presented the following evidence of defendant’s other crimes of violence and prior convictions. a. 1980 aggravated robbery Retired train conductor Earl Bradley testified that at around 4:00 a.m. on November 25, 1980, he observed an elderly man sitting in the lounge of a train traveling through Texas. When the conductor returned 15 minutes later, he found the man slumped in his seat with his throat slit.

The victim reported to him, “A [B]lack man cut my throat and took my wallet.” The conductor went in search of the robber and discovered defendant locked inside the restroom in the next car. According to court records, defendant later pleaded guilty to aggravated robbery and received a five-year prison term. b. 1981 assault David Atwood, an inmate in the Texas prison where defendant was serving his sentence for the 1980 aggravated robbery, testified that in September 1981, he was sitting in his cell rolling a cigarette. Defendant banged on the wall of his cell next door, demanding a cigarette.

Atwood did not respond and defendant became abusive and called him names. When Atwood returned the insults and told defendant he had no cigarettes to spare, defendant threatened him, saying, “When the door swing, you swing.” Atwood and defendant later exchanged heated words while on their way to the dayroom. Defendant then knocked him to the ground with a blow to the mouth. A fight ensued, which prison guards eventually defused. c. 1982 assault Edward Salazar also was an inmate in the Texas prison where defendant was incarcerated.

According to Salazar, in April 1982, defendant cut in front of him in the “chow line,” and when Salazar shoved him, defendant told him, “We’ll deal with this later, mother fucker.” Several days later, while defendant and Salazar were paired together in the prison’s trade school, defendant directed Salazar to pour water into a pot of hot lead. Another inmate warned Salazar that the lead would blow up in his face if he did so. Salazar became angry and threw the water aside. Defendant then struck him in the head with a ball-peen hammer, knocking him to the floor and injuring his scalp.

On cross-examination, Salazar disputed a prison disciplinary report indicating that after the hot lead incident, Salazar initiated a fight with defendant. d. 1985 assault Officer Dugan of the Long Beach Police Department testified that in February 1985, he contacted 16-year-old Carrie Parks, defendant’s girlfriend at that time. He observed that she had a swollen lip, a lump over one eye, and an abrasion on her arm. e. 1985 robbery Manuel Gutierrez testified that while driving home from a nightclub in the early morning hours of July 27, 1985, he pulled off on a side street to sleep.

He was awakened by a man, later identified as defendant, poking him in the neck with what he thought was a knife. Defendant directed Gutierrez to give him his wallet. Gutierrez complied, but then tried to grab the weapon from defendant’s hand and exit the car. He managed to escape, but defendant followed and they continued to wrestle. During the struggle, defendant yanked a gold chain from Gutierrez’s neck and an accomplice struck Gutierrez on the back of the head with a hard object. Court documents showed that defendant later pleaded guilty to robbery. 2.

Defense evidence The defense case in mitigation emphasized that defendant’s upbringing in a violent, destructive environment with a mother who was incapable of protecting him interfered with his ability to develop coping skills, positive self-esteem, and impulse control. Clinical Psychologist Gretchen White, Ph.D., expressed the opinion that environmental and genetic factors had profound, adverse affects on defendant’s psychological development. Based on her interviews with defendant and his family members, former girlfriends and friends, Dr.

White described for the jury defendant’s upbringing in a dangerous and frightening Los Angeles neighborhood. From age three to 10, defendant and his two brothers and a sister lived with their mother, Daisy Clark, in a community that was economically depressed but safe. Daisy later moved the family to a neighborhood beset by poverty, crime and violence, where defendant was constantly frightened. Defendant’s sister Kim joined a gang and his younger brother Ezra became involved with guns and drugs. Although defendant was constantly pressured to become a gang member, he joined the Explorer Scouts instead.

According to Dr. White, Daisy was an ineffective parent. Daisy often left the children unattended while she worked, sometimes locking them outside the house. From an early age, defendant and his brothers Ezra and Larry frequently ran away to the Bay Area home of their father’s wife and their two half siblings, Ricky and Richelle. They behaved well during those visits. Daisy also was inappropriately harsh on some occasions and overly indulgent on others, and was described as having a “Jekyll and Hyde” personality. Dr. White also noted that Daisy had a history of becoming disoriented and losing consciousness. Dr.

White explained that defendant’s upbringing in a violent neighborhood by an ineffective parent interfered with his ability to develop coping skills and impulse control. Instead, as his psychiatric and criminal history disclosed, he developed paranoid tendencies, rage reactions, and low self-esteem. Dr. White found it significant that teasing was often the triggering event for defendant’s violent acts. She also noted defendant’s tendency to associate with individuals who were younger than he, which she attributed to his low self-esteem and lack of a male role model.

Finally, she observed that, without adequate coping skills, the recent stressors in defendant’s life, which included the violent deaths of his two brothers, had a tremendous impact on his psychological functioning. Testimony by members of defendant’s family echoed the defense expert’s observations. Daisy begged the jury to spare her son’s life, for the sake of his children. n. DISCUSSION A. Asserted Evidentiary Error at the Competency Hearing Prior to trial and pursuant to a defense request, the court conducted a jury trial on defendant’s competence to stand trial.

Defendant contends the court erred by admitting irrelevant and highly prejudicial lay testimony at the hearing. As we shall explain, there was no error. 1. Background In September 1991, defendant entered pleas of not guilty as to all counts. In June 1993, against the advice of counsel, he entered an additional plea of not guilty by reason of insanity. Several days after the entry of that plea, the trial court and the parties returned to the courtroom to discuss administrative matters. The court remarked that defendant appeared withdrawn and depressed, inquiring about his ability to stand trial.

Defense counsel stated her belief that defendant was not incompetent. At a subsequent hearing in June 1993, defendant requested permission to . absent himself from trial. When counsel stated she would not waive his presence, defendant became disruptive. He later rose from his chair and raised his voice when a member of the local media entered the courtroom. After the news reporter departed, counsel voiced her concern that defendant would disrupt the proceedings if ordered to be present.

She suggested that his inability to remember portions of the events at issue in the charged crimes might explain his angry outbursts in the courtroom.

The trial court was troubled by counsel’s report of defendant’s “aberrations of memory.” Although counsel did not affirmatively request a competency hearing, the court nonetheless declared a doubt regarding defendant’s ability to assist counsel in his defense and suspended proceedings pending evaluation of his mental competence by two court-appointed mental health experts. (See §§ 1368, 1369.) Both experts later reported they found defendant competent to proceed to trial. However, defendant asked for a jury trial on the question and the court granted the request.

Psychiatrist George Woods, M.D., testified for the defense. According to Dr. Woods, defendant suffered from major depressive disorder with psychotic features, which included profoundly paranoid delusions that almost everyone involved in the court proceedings, including defense counsel, had turned against him. Dr. Woods testified that defendant’s psychotic symptoms directly related to the pending legal proceedings and, in the four months preceding the competency hearing, he had developed paranoid thoughts about his attorneys and refused to talk with them. In Dr.

Woods’s opinion, although defendant understood the nature of the criminal proceedings against him, he was so overwhelmed by his psychosis and paranoid delusions that he was unable to assist his attorneys. The prosecution called three mental health experts to testify, each of whom expressed the view that defendant suffered no disease or defect that rendered him incapable of cooperating with counsel. For example, Psychiatrist Charles Davis, M.D., found defendant unwilling, not unable, to assist his attorneys.

He believed defendant’s conduct to be a “manipulation rather than true paranoid delusion.” Psychologist Frank Powell, Ph.D., testified that defendant suffered from delusional disorder, persecutory type, but that he was capable of assisting his attorneys “should he so desire, and if they can help him get beyond his suspicions.” To further demonstrate defendant’s present competence and rebut the defense expert’s opinion, the prosecution called a number of lay witnesses, most of whom testified over defense objection.

Court reporter Rudy Garcia, who recorded the June 1993 proceeding in which defendant entered a plea of not guilty by reason of insanity against counsel’s advice, read into the record the eight-page nonconfidential transcript of that proceeding. The transcript reflected that in defendant’s lengthy exchange with the court before entering the plea, he stated, “I want to specify.

I’m not saying I’m insane now; I’m talking about as far as the time the crime was committed.” Defense counsel challenged Garcia’s proposed testimony on the ground that whether or not defendant appeared normal was irrelevant to the competency determination because the defense expert testified that defendant at times can act normally. The court disagreed, finding the evidence of defendant’s demeanor and recent participation in a courtroom proceeding relevant to his demeanor in the present proceeding and hence proper rebuttal to Dr. Woods’s testimony.

The court likewise overruled defense counsel’s relevancy and Evidence Code

section 352 objections to the proposed testimony of Deputy Randall Haw, the bailiff who regularly accompanied defendant to and from the courtroom for pretrial proceedings. Characterizing Deputy Haw’s intended testimony as an attempt to demonstrate that defendant was normal at times, counsel repeated her argument that the defense already had conceded that point. What was at issue, she asserted, was whether defendant could assist counsel when he was confronted with a courtroom situation. The court found the proposed testimony proper rebuttal.

Deputy Haw later testified that when he engaged defendant in casual conversation, he was responsive and appropriate in his manner. Deputy Haw also related that in June 1993, three days before the court declared a doubt as to defendant’s competence, defendant informed him that he no longer wanted to attend the proceedings and that, if forced to do so, and if television cameras or members of the victims’ families were present, he would disrupt the courtroom. Defendant also told the bailiff that he wanted to plead guilty to the charged crimes but his attorneys would not permit him to do so.

Directly after Rudy Garcia’s testimony and again before deliberations, the trial court instructed the jurors that the only issue before them was defendant’s present mental competence, not the question of his guilt or innocence or his legal sanity at the time of the crimes. The jury ultimately found defendant competent to proceed to trial. 2.

Discussion The question presented in a competency proceeding is whether “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a); see People v.

Jablonski (2006) 37 Cal.4th 774, 807-808 [38 Cal.Rptr.3d 98, 126 P.3d 938].) According to defendant, the sole issue at the competency hearing was whether he could rationally assist counsel in the conduct of his defense; he did not claim he lacked the ability to understand the nature of the court proceedings or the charges against him.

Thus, defendant asserts, the lay witnesses’ testimony regarding his courtroom behavior, his threat to disrupt the proceedings, his plea of not guilty by reason of insanity against his attorney’s advice, and his desire to plead guilty to the charged crimes was irrelevant to any contested issue presented at the competency trial and its admission amounted to prejudicial error requiring reversal of the entire judgment. “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351; see People v.

Williams (2008) 43 Cal.4th 584, 633 [75 Cal.Rptr.3d 691, 181 P.3d 1035].) “Evidence is relevant if it tends ‘ “logically, naturally, and by reasonable inference” to establish material facts ....’” (Williams, at p. 633.) We long have recognized that “[t]he trial court has considerable discretion in determining the relevance of evidence. [Citations.]” (Id. at p. 634.) We conclude there was no abuse of discretion here. Contrary to defendant’s assertion, the testimony of Rudy Garcia and Deputy Haw was relevant to the issue of his ability to assist counsel in his defense.

Evidence of defendant’s behavior and interactions with court personnel and his attorneys in the courtroom setting tended to rebut Dr. Woods’s opinion that for the previous four months, defendant’s psychotic symptoms and paranoia stemming from the pending legal proceedings had interfered with his ability to rationally assist his counsel. This evidence also presented the jury with a contrast between defendant’s demeanor at the competency hearing, which prosecution expert Dr. Powell described as “somewhat withdrawn or uninterested,” and his conduct in the courtroom on other occasions.

As for testimony that defendant entered an insanity plea against counsel’s advice and wanted to plead guilty to the charges but counsel refused to permit him to do so, that evidence likewise was relevant because it buttressed the prosecution’s position that defendant was unwilling, rather than unable, to cooperate with counsel. (See People v. Superior Court (Campbell) (1975) 51 Cal.App.3d 459, 464 [124 Cal.Rptr. 158] [“the test, in a

section 1368 proceeding, is competency to cooperate, not cooperation”].) Defendant insists that evidence of his disregard of counsel’s advice not to plead insanity was irrelevant because the decision was one for him, not counsel, to make. Defendant is correct that the choice to enter a plea of not guilty by reason of insanity is a matter within the defendant’s, rather than counsel’s, ultimate control. (§ 1018; People v. Medina (1990) 51 Cal.3d 870, 899-900 [274 Cal.Rptr. 849, 799 P.2d 1282].) The principle does not advance his claim of irrelevance, however.

That defendant exercised his prerogative to enter a plea against counsel’s advice tended to show he was capable of intelligently participating in his defense. Defendant further claims the challenged evidence should have been excluded because its prejudicial effect far outweighed its probative value in showing he was capable of rationally assisting counsel with his defense. Evidence Code

section 352 accords the trial court broad discretion to exclude even relevant evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724 [94 Cal.Rptr.2d 396, 996 P.2d 46].) We review a trial court’s ruling under Evidence Code

section 352 for an abuse of discretion. (People v. Williams, supra, 43 Cal.4th at pp. 634-635; People v. Robinson (2005) 37 Cal.4th 592, 625 [36 Cal.Rptr.3d 760, 124 P.3d 363].) Applying this standard, we conclude there was no error in the court’s implied finding that the danger of prejudice did not substantially outweigh the probative value of the challenged evidence.

Defendant argues the admission of evidence of his desire to plead guilty and his entry of an insanity plea against counsel’s advice created an overwhelming temptation for jurors to base their competency determination on improper considerations, such as defendant’s beliefs about his own guilt and sanity. That assertion is purely speculative, however. The court instructed the jurors that the issue before them was defendant’s present competence, not the question of his guilt or innocence or his sanity or insanity at the time of the charged crimes.

The court’s instruction diminished the risk that the jury, which had been impaneled to determine only the question of defendant’s competence, would misuse the evidence in the manner defendant asserts, and we presume the jurors followed the court’s directive. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326 [63 Cal.Rptr.3d 433, 163 P.3d 118].) Defendant points to nothing in the record suggesting otherwise.

Defendant also argues that even if the challenged evidence was probative of his demeanor, it should have been excluded as “wholly unnecessary” because the prosecutor presented other lay witnesses who described defendant’s apparent ability to function in the courtroom and jailhouse milieu. We disagree. That the prosecutor could have relied on other testimony and evidence of defendant’s demeanor in these settings does not diminish the probative value of the challenged evidence or require its exclusion under Evidence Code

section 352. As we have observed, the prosecutor is not required “to present its case in the manner preferred by the defense.” (People v. Salcido (2008) 44 Cal.4th 93, 150 [79 Cal.Rptr.3d 54, 186 P.3d 437].) Finally, because defendant fails to point to anything in the record suggesting any infirmity in the competency proceeding, we reject his argument that a defective and unfair adjudication of his competence deprived him of due process and reliable guilt, sanity, and penalty determinations in violation of the Eighth Amendment to the United States Constitution and

article I,

section 17 of the California Constitution. B. Jury Selection Claims 1. Rulings on challenges for cause Defendant asserts that his death sentence must be reversed because the trial court erroneously granted the prosecutor’s challenges for cause against three prospective jurors and improperly overruled defense challenges for cause to eight prospective jurors. He argues that the court’s rulings failed to meet the constitutional standards articulated in Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt) and other pertinent United States Supreme Court precedent.

He further asserts that because the court engaged in an assertedly discriminatory pattern of favoring the prosecution when ruling on the parties’ challenges for cause, its rulings are not entitled to deference on appeal. We reject these arguments. a. Governing principles Under both the state and federal Constitutions, a criminal defendant is guaranteed the right to be tried by an impartial jury. (Cal. Const., art. I, § 16; U.S.

Const., 6th & 14th Amends.) A prospective juror may be excused for cause only if his or her views in favor of or against capital punishment “would ‘prevent or substantially impair the performance of his [or her] duties as a juror in accordance with [the court’s] instructions and [the juror’s oath].’ ” (Witt, supra, 469 U.S. at p. 424; see Uttecht v. Brown (2007) 551 U.S. 1, 9 [167 L.Ed.2d 1014, 127 S.Ct. 2218].) Although opposition to the death penalty does not necessarily afford a basis for excusing a juror for cause (People v.

Martinez (2009) 47 Cal.4th 399, 425 [97 Cal.Rptr.3d 732, 213 P.3d 77]), the prosecutor may properly challenge those prospective jurors whose opposition to the death penalty “would not allow them to view the proceedings impartially, and who therefore might frustrate administration of [the] death penalty scheme.” (Witt, supra, at p. 416.) We will uphold a trial court’s ruling on a challenge for cause “ ‘ “ ‘if it is fairly supported by the record.’ ” ’ ” (People v.

Lewis (2008) 43 Cal.4th 415, 483 [75 Cal.Rptr.3d 588, 181 P.3d 947].) The trial court is in the best position to determine the potential juror’s true state of mind because it has observed firsthand the prospective juror’s demeanor and verbal responses. (People v. Martinez, supra, 47 Cal.4th at p. 426; see also Uttecht v. Brown, supra, 551 U.S. at p. 9.) Thus, “ ‘ “[o]n review of a trial court’s ruling, if the prospective juror’s statements are equivocal or conflicting, that court’s determination of the person’s state of mind is binding.” ’ ” (People v.

Solomon, supra, 49 Cal.4th at p. 830; see Witt, supra, 469 U.S. at pp. 425-426, 428.) The erroneous excusal of even a single prospective juror under the principles of Witt and its progeny requires reversal of the penalty judgment. (Gray v. Mississippi (1987) 481 U.S. 648, 663-666 [95 L.Ed.2d 622, 107 S.Ct. 2045]; People v. Stewart (2004) 33 Cal.4th 425, 454-455 [15 Cal.Rptr.3d 656, 93 P.3d 271].) To prevail on a claim that the court erroneously denied a challenge for cause, however, the defendant must show “ ‘that the court’s rulings affected his right to a fair and impartial jury.’ [Citation.]” (People v.

Mills (2010) 48 Cal.4th 158, 187 [106 Cal.Rptr.3d 153, 226 P.3d 276].) b. Exclusion of prospective jurors for cause i. Prospective Juror L. C. Prospective Juror L.C. wrote in his questionnaire that he was “not really for” the death penalty but that he could “consider it.” He repeated the point when responding to the court’s question whether he believed the death penalty should be automatic for any type of crime.

He answered, “Yes, sir” to the court’s questions whether he could look at the evidence and law and then decide the appropriate penalty, and whether he could vote for either death or life without the possibility of parole if he felt one sentence was more appropriate than the other. The prosecutor asked L.C. to clarify what he meant when he stated that he was “not really for” the death penalty.

L.C. explained that although some cases deserved the death penalty, “that would be a tough issue to vote on.” When asked whether he believed he could actually cast a vote to impose a death sentence on another human being, L.C. replied, “I probably could,” but added that it was a “heavy responsibility” to have a man’s life in his hands. The prosecutor probed further, asking L.C., “When you say . . .

T probably could,’ does that mean that you have a doubt that you could?” L.C. replied, “I probably would have a doubt.” When the prosecutor then inquired if being frightened of the penalty decision would affect his ability to vote for the death penalty, L.C. responded that he “probably could.” The court resumed questioning L.C., asking, “[Assuming ... the evidence is very substantial that death is deserved . . . and you personally feel that death is deserved . . . would you vote for it?” L.C. replied, “Yeah.” The prosecutor followed up with a similar question, asking L.C. whether he could put aside his personal beliefs “and actually impose the death penalty on another human being.” L.C. responded, “Yes.” The prosecutor challenged L.C. for cause, arguing that his answers were conflicting and equivocal and that he generally was unable to say whether he could ever impose the death penalty in an appropriate case.

Defense counsel objected to the challenge, arguing that none of L.C.’s responses rose to the level of substantial impairment. In counsel’s view, L.C.’s responses expressed the seriousness and difficulty of the penalty determination, not an inability to follow the law. The court observed that toward the end of the voir dire examination, L.C. expressed more certainty in his ability to apply the death penalty in an appropriate case. It found, however, that L.C.’s declaration that he could apply the law fairly and impartially was contradicted by his equivocal responses and his demeanor.

It appeared to the court at several points that L.C. “might lose emotional control over himself’ and it noted L.C. had difficulty swallowing and was “visibly upset and nervous.” In the court’s view, L.C. “would find it difficult, if not impossible, to impartially apply the law.” We defer to the trial court’s determination of L.C.’s true state of mind and conclude there is ample support for its ruling excusing him for cause. The record shows the court “supervised a diligent and thoughtful voir dire” (Uttecht v.

Brown, supra, 551 U.S. at p. 20, italics omitted), which enabled the court to engage with L.C., hear his responses, and observe his demeanor (People v. Stewart, supra, 33 Cal.4th at p. 451). Although at the end of the voir dire questioning L.C. expressed greater certainty concerning his ability to vote for the death penalty in an appropriate case, the court was entitled to find those assurances were severely undercut by his demeanor and his hesitant, inconsistent, and equivocal responses.

Those answers, “combined with the court’s firsthand assessment of [his] responses and demeanor, could give rise to a ‘definite impression’ on the part of the court that [L.C.’s] views would substantially impair the performance of [his] duties as a juror.” (People v. Solomon, supra, 49 Cal.4th at p. 836; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007 [47 Cal.Rptr.3d 467, 140 P.3d 775].) Defendant argues that the court’s determination of L.C.’s true state of mind is not deserving of deference because the prospective juror’s responses were neither conflicting nor ambiguous.

The record, however, shows that L.C. equivocated and contradicted himself numerous times. For instance, when the prosecutor asked L.C. whether he believed he could actually vote to impose a death sentence, he first responded that he “probably could,” then stated he “probably would have a doubt,” and indicated finally he “probably could” vote for death. Defendant complains it was improper for the court to rely on L.C.’s emotional state and nervousness in granting the prosecutor’s challenge for cause, citing Adams v.

Texas (1980) 448 U.S. 38 [65 L.Ed.2d 581, 100 S.Ct. 2521]. (See id. at p. 50 [“neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty”].) Contrary to the premise of defendant’s argument, the court did not excuse L.C. simply on the basis of his nervousness and emotional state.

Rather, the court excused him because his responses and demeanor demonstrated his views on the death penalty would substantially impair his duties as a juror. Visible emotion and nervousness are factors a trial court properly may consider in evaluating a juror’s demeanor, which is highly relevant to a trial court’s ultimate determination. (People v. Martinez, supra, 47 Cal.4th at p. 438; Uttecht v. Brown, supra, 551 U.S. at p. 9.) ii. Prospective Juror A.K. Prospective Juror A.K. wrote in her questionnaire that she supported the death penalty and believed most death sentences were appropriate.

During questioning, she confirmed her strong support for capital punishment. When asked by the court whether she could vote to impose death if she felt the death penalty was appropriate, however, she stated, “I think so. I can’t tell for sure,” and she acknowledged she would “feel a little uncomfortable.” A.K. voiced similar views when questioned by the parties, saying, for instance, she “would probably have a little problem with the death penalty” that she would have to “work through.” When asked whether she could choose either of the two penalties if it was warranted, A.K. replied, “I think so.

I think so,” but then indicated she would “have a hard time” voting for the death penalty even though she believed in it. She also responded, “I don’t know,” when asked whether she could see herself actually voting to impose the death penalty on a person. A.K. explained that she probably would rather “have someone else make that decision instead of me.” After pointing out to A.K. that her responses seemed inconsistent, the court inquired whether she could set aside her personal beliefs. She replied, “I probably would not.” Over defense objection, the court granted the prosecutor’s motion to excuse A.K. for cause.

The court remarked that A.K.’s responses were equivocal and conflicting: Although she initially stated she could set aside her problem with the death penalty, her later responses indicated that those problems would substantially interfere with her ability to vote for the death penalty. The court stated it had the “definite impression” that A.K. would be unable to truthfully and impartially apply the law. We again defer to the court’s determination of A.K.’s state of mind and conclude its decision to excuse her finds ample support in the record.

Defendant observes, and we agree, that A.K. voiced no opposition to the death penalty. Indeed, she characterized her support for capital punishment as “strong.” But A.K. also indicated she would “have a hard time” voting to impose death and would rather have someone else make that decision for her. When asked whether she could set aside those feelings and vote for the death penalty in an appropriate case, she offered conflicting and equivocal responses.

Those answers, coupled with the court’s observations of A.K.’s responses and demeanor, could create a “ ‘definite impression’ ” that her “views would substantially impair the performance of her duties.” (People v. Solomon, supra, 49 Cal.4th at p. 836.) iii. Prospective Juror P.Y. Prospective Juror P.Y., a middle school social science teacher, provided lengthy, rhetorical, and sometimes cynical responses to many of the death qualification questions on the questionnaire. For instance, when asked about his general views on the death penalty, he wrote, “Not a yes or no, simple question.

I am not a vengeful, vindictive person, and strive to be understanding and compassionate. The only reason someone should be killed by the state is if it brings a greater good.” When asked whether the death penalty is imposed too often, too seldom, or randomly, he found the question “too simplistic” and wrote, “There are probably better alternatives. . . . But society must also be assured of safety.” To the question whether he held any religious or philosophical principle that would affect his ability to vote for the death penalty, he replied, “Of course!

What person could decide a question of this magnitude without profound examination of one’s thoughts?” As to whether he could set aside his personal feelings regarding what he thought the death penalty law should be and follow the law as given by the court, he wrote, “Anybody who answers yes to this is a liar.

When people are arguing in the jury room, it’s very heavily based on personal feelings, regardless of what they say.” P.Y. also wrote that he would do his best to examine and hear all sides, and that he deplored “simplistic thinking.” Finally, in response to the question whether there were any reasons he might not be a completely fair and impartial juror in the case, he queried, “What’s impartial in today’s society?

I will do my best to be fair.” During questioning, P.Y. expressed his view that the “most obvious” consideration in deciding whether to impose the death penalty was “to know if someone can cause damage again if they’re out of prison or if they’re in prison.” In response to that comment, the court asked P.Y. whether he could set aside his personal criteria for when death is appropriate and follow the court’s instructions.

P.Y. answered, “I think I could follow ... the directions of the court.” However, he then reiterated his belief that persons who state they are able to set aside their feelings about the death penalty are lying. When the court again asked P.Y. whether he could set aside his views, P.Y. posed questions of his own about whether imposition of the death penalty was mandatory. The court explained the penalty determination was not automatic, and the jury had wide discretion in reaching its verdict.

Instead of answering the court’s inquiry, however, P.Y. “wondered what it would be like to be in a jury room with 12 people and the amount of logic there. And to be honest, I don’t hold a real high opinion of my fellow human beings as far as—look who we put in public office over and over again. Eleven more of those together, actually how many folks will follow the letter of the law and won’t bring in their own personal prejudices . . . .” The prosecutor moved that P.Y. be excluded for cause, arguing that his responses were framed to avoid shedding light on his attitudes about the death penalty.

The court found P.Y.’s answers “basically incomprehensible and illogical,” observing that P.Y. “never gave a straight answer” as to whether he could set aside his own opinions, and that his questionnaire answers made it “very clear” he had no intent to do so. Defense counsel objected, arguing that unless P.Y.’s personal feelings were such that he could never vote for the death penalty, or never vote for life without parole, he could not be disqualified for refusing to set aside his personal feelings.

The court disagreed, noting that some of P.Y.’s views might be impermissible considerations in the penalty determination. For instance, the court pointed out, P.Y. suggested that the death penalty is an appropriate sentence when there is a potential for future dangerousness. The court also noted that P.Y. was 35 minutes late to the courtroom and that he “jabber[ed] away.” The record fairly supports the court’s determination that P.Y.’s views on capital punishment would substantially impair his performance as a juror.

P.Y. declared in his questionnaire that his philosophical beliefs would affect his penalty decision. He also gave equivocal, conflicting, nonresponsive, and confusing answers when asked about his ability to set aside his personal views and follow the law. And in his statements at the end of voir dire he expressed a deeply cynical and presumptuous view of his fellow jurors, suggesting among other things that few individuals, perhaps himself included, were capable of setting aside their own personal prejudices.

Because the court was in the best position to observe P.Y.’s responses, demeanor, tone of voice, and other cues not readily apparent to the reviewing court (People v. Stewart, supra, 33 Cal.4th at p. 451), we defer to its determination that P.Y. “had no intent” to set aside his personal opinions and follow the court’s instructions on the law. Defendant takes issue with the court’s remark that P.Y. “never would give a straight answer” about whether he could set aside his own opinions, claiming any uncertainty as to P.Y.’s views was due partly to the court’s vague questioning, as in People v.

Heard (2003) 31 Cal.4th 946 [4 Cal.Rptr.3d 131, 75 P.3d 53]. (See id. at pp. 963-966 [the trial court improperly excused for cause a prospective juror who clearly and unambiguously stated he would follow the law; any vagueness in his answers was attributable to the court’s imprecise questioning].) In the present case, unlike in Heard, the court made repeated attempts to ascertain from P.Y. whether he could set aside his personal opinions and follow the court’s instructions, but P.Y. responded to the court’s clear, comprehensible inquiries by offering lengthy answers expounding on his views on human nature.

Because the court was able to see and hear P.Y. and assess his demeanor and other nonverbal cues during questioning, its “ ‘definite impression’ ” that he would be unable to carry out his duties as a juror is entitled to deference here. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007.) To the extent defendant suggests that a court may not properly excuse a prospective juror for cause in a capital case for reasons other than his or her unyielding support for, or opposition to, the death penalty, he is wrong.

A juror whose personal views on any topic render him or her unable to follow jury instructions or to fulfill the juror’s oath is unqualified. (See People v. Tate (2010) 49 Cal.4th 635, 667-672 [112 Cal.Rptr.3d 156, 234 P.3d 428] [a prospective juror’s apparent misstatement of her academic credentials on the juror questionnaire called into doubt her general qualifications for jury service].) Witt identifies a particular, but not exclusive, ground for doubting a juror’s ability to follow instructions.

The Witt standard comports with “traditional reasons for excluding jurors and with the circumstances under which such determinations are made. . . .

Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts.” (Witt, supra, 469 U.S. at p. 423.) In any event, contrary to defendant’s argument, the court properly could and did conclude that RY. harbored views on capital punishment and other issues that “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424.) Defendant complains finally that the court based its decision to excuse P.Y. on irrelevant factors, such as his tardiness to court and his “jabbering away.” His assertion fails, however, because its premise is belied by the record, which discloses the court did not base its ruling on such factors but rather mentioned them as an afterthought following its determination that P.Y. was unable to set aside his opinions and follow the law. c.

Denial of defense challenges for cause Defendant claims he was denied his right to a fair and impartial jury by the court’s assertedly erroneous denial of defense challenges for cause against eight prospective jurors who, he asserts, exhibited strong antidefense or pro-death-penalty biases. The record shows that the defense used five of its 20 peremptory challenges to excuse some of the complained-of jurors from the petit jury: Prospective Jurors V.D., D.M., L.M., C.W., and S.L.

Later, after expressing dissatisfaction with the jury as then constituted, counsel declined to use her final peremptory challenge because Prospective Juror M.L., whom she had unsuccessfully challenged for cause, was in line to fill the next vacancy in the jury box. Counsel asked for additional peremptory challenges, but the court denied the request. During selection of alternate jurors, counsel exhausted all three of her allotted peremptory challenges, using two of them to excuse M.L. and Prospective Juror S.F., whom she also had unsuccessfully challenged for cause.

Prospective Juror M.K., another unsuccessful challenge, was not called to the jury box. Defendant’s claim of error does not succeed because he fails to show he was prejudiced by the court’s denial of his challenges for cause. As previously noted, to prevail on his claim, defendant must show the court’s denial of the challenges for cause “ ‘affected his right to a fair and impartial jury.’ ” (People v. Mills, supra, 48 Cal.4th at p. 187; see People v. Yeoman (2003) 31 Cal.4th 93, 114 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) Here, none of the eight prospective jurors actually sat on the jury.

Thus, none of the court’s rulings could have affected defendant’s right to a fair and impartial jury. (People v. Yeoman, supra, at p. 114.) Defendant nonetheless asserts that because the court’s rulings compelled him to use his peremptory challenges to excuse jurors who should have been excused for cause, he was

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