People v. Blair

Defendant was convicted of the first degree murder of his neighbor Dorothy Green by the administration of poison. The prosecution’s evidence showed that, in 1984, defendant deliberately poisoned Green and Green’s friend, Rhoda Miller, by placing cyanide in a gin bottle and giving the bottle to Miller to deliver to Green. The apparent motive was to obtain money that defendant believed was owed to him by Green. Green drank more of the gin than Miller, fell into a coma that lasted for several months, and sustained brain damage. Green survived for almost two years and then died from pneumonia in 1986. Medical experts testified that the cyanide poisoning caused the brain damage, which then caused the pneumonia that led to Green’s death.

Defendant was tried in 1985 for the attempted murder of Green and Miller. He represented himself and was convicted. After Green died, he was tried in the present case for the first degree murder of Green with the special circumstance of murder by the administration of poison. Defendant insisted on representing himself, as he had in the earlier proceedings. He attempted, unsuccessfully, to establish that cyanide poisoning was not the cause of Green’s death. At the penalty phase, the prosecution’s evidence in aggravation consisted principally of proof of defendant’s prior convictions, and defendant presented no witnesses and only a few college transcripts as evidence in mitigation.

A. Guilt phase

1. The prosecution’s case

a. The poisoning

In 1984, defendant lived in an apartment complex located at 5542 Sierra Vista Avenue in Hollywood. Dorothy Green shared apartment 209 in the same complex with a man named Goretha Murphy. One evening, a man whom Murphy believed was defendant came to their apartment. After Murphy let the man in, Murphy overheard the man tell Green that he wanted his money back and was going to get it. The man then left. On another occasion, the same man approached Murphy and told him that he had “better do something” about having Green return the money. Murphy then heard this man tell another

When Miller regained consciousness, several paramedics were in the apartment. Miller told one of the paramedics, Robert Miller (who was no relation), that she and Green had drunk some gin, and that possibly the gin had been poisoned. It appeared to Robert Miller that Green was in a more serious condition than Miller. Green was unconscious and “critical.” The paramedics inserted an “I.V.” into Green’s arm and took her, Miller, and the gin bottle (which they had found in the apartment) to Hollywood Presbyterian Hospital. At the hospital, the paramedics gave the gin bottle to the police. Later tests of samples of gin from the bottle revealed that it contained sodium cyanide, at a quantity of 5 percent of the solid material.

b. Defendant’s arrest

A few days after the poisoning incident, William was playing with some friends outside the Sierra Vista apartment complex. He saw defendant, who was carrying the same briefcase that was in his possession on the day of the poisoning. Defendant asked William where his mother was.

Officer Keith Moreland arrested defendant at the Sierra Vista apartment complex on October 2, 1984. At the time of his arrest, defendant was carrying a briefcase. Officer Moreland took defendant to the Hollywood police station and turned him and the briefcase over to the investigating officer, Detective Richard Jackson, and his partner, Detective Michael Thrasher.

In an interview room, Detective Jackson searched the briefcase. Inside, he found an envelope with writing on it. Among such entries as “magic shave,” “soap,” and “Reader’s Digest law book” were the words “get cyanide.” Detective Jackson also searched defendant’s wallet and found several items, including: (1) a piece of paper with “Chem Lab Supply” and a telephone number and address written on it; (2) another piece of paper with “RJM Lab,” “Chem Lab Supplies,” and corresponding addresses and phone numbers written on it; (3) and a business card with “Chem Lab” and “Haw” written on it. Detectives Jackson and Thrasher later visited Chem Lab Supply and RJM Lab in Hawthorne, but no one there recognized a photo of defendant as someone who had purchased cyanide.

On October 3, 1984, Miller, who had been released from the hospital, identified defendant from a photo lineup as the person who had handed her the gin bottle to give to Green.

Dr. Jerry Gray, a pathologist, performed an autopsy on Green. Green died from another bout of pneumonia attributed to “toxic brain damage” caused by the cyanide poisoning. The cyanide prevented oxygen from reaching Green’s brain, thus killing her brain cells. Dr. Gray testified that pneumonia is common after this type of brain injury because the patient cannot breathe and cough normally and therefore cannot tolerate secretions in the lungs.

2. The defense case

Acting as his own counsel, defendant re-called Detective Jackson, who testified that he never had spoken to Green’s daughter Caron. Dell Freeman, a fingerprint expert, compared defendant’s fingerprints to photographs of fingerprints taken from the gin bottle, the gift box, and the wrapping paper. Freeman could not identify the prints on the bottle as defendant’s.

Dr. Mohamad Abdel Latif, the director of the intensive care unit at Hollywood Presbyterian Hospital, treated Green on September 24, 1984, the day she was admitted. In Green’s stomach, Dr. Latif found Darvon, the drug Atropine, and bleach. These three substances could cause brain damage or respiratory arrest if they reached the bloodstream in significant amounts, but blood tests indicated they had not. Alcohol at a level of 0.123, as well as Valium and amphetamine, were found in Green’s blood. Dr. Latif testified that theoretically, the combination of alcohol, amphetamine, Valium, and bleach could cause respiratory arrest and brain damage. On cross-examination, however, he agreed that the most likely cause of Green’s condition upon her arrival was cyanide poisoning. The cyanide level in Green’s blood 16 hours after her admission to the hospital was 20 micrograms per milliliter, an “extremely high” amount.

Dr. Hideo Itabashi, a neuropathologist employed by the County of Los Angeles, without having read any of Green’s medical records or the autopsy report, testified that theoretically a combination of alcohol, Darvon, and Valium in significantly high amounts in a person’s blood could cause respiratory arrest leading to hypoxia and brain damage. Cyanide poisoning also could cause such hypoxia. Dr. Itabashi testified that a physician examining a patient could not distinguish between hypoxia caused by cyanide and hypoxia caused by Darvon, Valium, and alcohol. He was aware that Green had a blood-alcohol level of 0.123, but was not told the amounts of the other drugs that were present. He could not say what had caused Green’s death.

Dr. Irving Root, a pathologist who had conducted approximately 20,000 autopsies, reviewed Green’s medical records and autopsy report. In his expert opinion, Green died from complications of cyanide poisoning—that is, pneumonia resulting from brain damage caused by cyanide. The amount of cyanide in Green’s blood, 20 micrograms per milliliter, was an extremely high level and normally would cause a very quick death, absent immediate resuscitation. In Green’s case, Dr. Root explained, emergency personnel resuscitated Green in time to keep her alive, but not soon enough to avoid the brain damage that eventually caused her death.

B. Penalty phase

1. The prosecution’s case

Defendant was convicted of first degree robbery and assault with a deadly weapon in Orange County in 1959. In 1963, defendant was convicted of second degree robbery in San Bernardino County. Defendant was incarcerated for these offenses. In 1985, defendant was convicted of the attempted murder of Green and Miller.

Over defendant’s objection, Emily Maverick, a professor of chemistry at Los Angeles City College (formerly Los Angeles Community College), testified concerning an experiment involving cyanide that defendant had conducted when he was a student in one of her chemistry classes in 1982.

2. The defense case

Still acting as his own counsel, defendant called no penalty phase witnesses in mitigation. The parties stipulated to the admission in evidence of defendant’s academic records from Los Angeles City College.

A. Competency and self-representation issues

1. Knowing and intelligent waiver

Defendant contends the trial court erred in permitting him to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ] (Faretta) without, he asserts, obtaining a knowing and intelligent waiver of his right to the assistance of counsel under the Sixth Amendment to the United States Constitution.

When defendant returned to court with the form, Judge Blackwell stated: “Sir, let me ask you. I have your pro. per. form filled out here. Do you understand that in your case that the prosecutor is an experienced lawyer and possibly may have an advantage over you? Do you understand that?” Defendant responded in the affirmative and also stated he understood it was unwise to represent himself. The court then denied defendant’s request for self-representation on the ground that defendant’s responses on the Pro. Per. Advisement Form, where he had marked an “x” instead of placing his initials, indicated he could not read and understand simple English. Although the court stressed to defendant that this was a special circumstances case in which the state was asking for his life, defendant refused to waive time. The court then entered a not guilty plea on defendant’s behalf and set the preliminary hearing for October 1, 1986.

On October 1, 1986, defendant appeared with a deputy public defender before another municipal court judge, Judge Xenophon F. Lang. Counsel told the court that defendant wished to represent himself, explaining that defendant had represented himself at the earlier trial. Judge Lang stated: “I see that Judge Blackwell, in Division 30, had Mr. Blair fill out a form and she still denied the motion; however, I don’t think that those questions are necessary now. They were several years ago; but in the last several years, if the defendant wants to represent himself, he has a perfect right to do so. Isn’t that your understanding?” The prosecutor agreed that defendant had an “absolute right” to represent himself “if he meets the basic criteria of Faretta,” and reminded the court that defendant had represented himself in the previous jury trial. The court then stated: “The public defender is relieved,” and continued the preliminary hearing until October 3, 1986, to give defendant time to prepare.

Defendant appeared in propria persona for the preliminary hearing in municipal court on October 3, 1986, before Judge Ronald S. Coen. At the beginning of the hearing, the following exchange occurred:

“The Court: You are representing yourself?

“[Defendant]: Yes.

“The Court: You have been told earlier, I take it, the pain and pitfalls of self-representation and the warnings about it?

“[Defendant]: Yes.

“The Court: Is it still your desire to represent yourself?

“The Court: Very well.”

The court then read defendant a statement of rights, which included the following: “You have the right to be represented by an attorney at all phases of the proceedings. At this time you have chosen to represent yourself. You have been granted that right.” Defendant indicated he understood his rights. Thereafter, defendant represented himself throughout the preliminary hearing, at the end of which he was held to answer on the capital murder charges.

Defendant appeared for his arraignment in the superior court before Judge Aurelio Munoz on October 21, 1986. Judge Munoz stated that he was aware defendant was representing himself, and asked defendant whether he wanted to be represented by an attorney, to which defendant answered: “No. No, I don’t, your honor.” When the court noted that this was a “death case,” the prosecutor stated that a final decision concerning whether the death penalty would be sought had not yet been made. The court stated: “I’m not going to let somebody walk into a death case pro. per. without making very sure that we aren’t going to be trying this case again.” The prosecutor replied: “We have had three hearings on this already and I understand the court’s concern.” The court then had defendant fill out another, more extensive form, entitled “Petition to Proceed in Propria Persona.”

On this form, defendant stated that he could read and write; that he understood his constitutional rights to a speedy and public jury trial, to compulsory process, to confrontation and cross-examination, to testify or refuse to testify, to bail, and to appointed counsel; that he understood that if he was permitted to represent himself, he would be giving up his right to be represented by counsel and would have to conduct his own defense; that he was a high school graduate; that he understood that by representing himself he would be giving up the right to the assistance of an experienced public defender; that he would have to “follow all of the many technical rules of substantive law, criminal procedure, and evidence”; that he would not be entitled to any special consideration from the court; and that the district attorney would be experienced in both court and jury trials. Defendant correctly identified the charge against him, stated that the crime was a

When defendant returned to court later in the day, the following exchange occurred:

“The Court: Now, the People are deciding if this is a death penalty. Okay. H] Do you understand, of course, that you are not going to get any breaks or any help simply because you are a layman? You are aware of that?

“[Defendant]: I understand that.

“The Court: And there is a saying in the law ‘that a lawyer who tries his own case has a fool for a client.’

“[Defendant]: I have heard that.

“The Court: Do you know what it means?

“[Defendant]: I heard that before.

“[Defendant]: Do I know what it means?

“The Court: Yes. What it means, you can’t be objective when you are trying your own case. And a lawyer’s job, above all, is to be objective. And that’s one of the dangers, [f] Do you understand that?

“[Defendant]: Yes.”

Then, after ascertaining that defendant had been represented by lawyers previously, had had troubled relationships with each, and did not want a

Judge Munoz arraigned defendant a few days later, on November 4, 1986. When the prosecutor informed the court that the prosecution would be seeking the death penalty, the following exchange took place:

“The Court: Okay. Mr. Blair, I know you were representing yourself pro. per. in the previous trials . ... [f] Okay. It’s one thing to represent yourself at a trial. At this point, the stakes have just gone up quite a bit. Now, you are a layman, and you really need a lawyer. It’s your life. [][] I’ll guarantee one thing. The way things are going now, just based upon what I’ve seen and heard this morning, you’re going to lose that life. Now, I’m not denying you the right to be your own counsel. I’m not denying you appointed counsel. I’m not denying you anything. I’m telling you you have the right to have one. [][] So you’re not going to be able to go up and say that you were denied counsel. You are not going to be able to go up and say that you were ineffective. Now, don’t you really think you ought to reconsider your decision to proceed in pro. per.?

“[Defendant]: No, your honor. I want to go pro. per. It’s my decision.

“The Court: Would you like to have advisory counsel?

“[Defendant]: No.

“The Court: You realize, of course, you will get no special consideration from the court. And chances are it’s going to be somebody just like me sentencing you to death. I’m being realistic. Do you understand, sir?

“[Defendant]: Yes, I understand.”

Later, in the same hearing, Judge Munoz inquired again whether defendant wanted advisory or associate counsel. When defendant said he did not, the court stated: “All right. It’s your life. I will state for the record that I think Mr. Blair is making a conscious choice. He appears to be in full control of his faculties. [][] I think it’s probably a game that he’s hoping that even if he does get the death penalty, that some court is going to look at this and say it isn’t fair.”

Later that same day, defendant indicated that he wished to have Attorney Ray Newman appointed as “associate counsel.” Newman appeared in the courtroom, and after ascertaining his availability, Judge Munoz appointed him

b. Discussion

A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. (Faretta, supra, 422 U.S. at pp. 835-836; People v. Bradford (1997) 15 Cal.4th 1229 , 1363 [ 65 Cal.Rptr.2d 145 , 939 P.2d 259 ].) A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation].” (Faretta, supra, 422 U.S. at p. 835.) “No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.” (People v. Koontz (2002) 27 Cal.4th 1041 , 1070 [ 119 Cal.Rptr.2d 859 , 46 P.3d 335 ].) Rather, “the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102 , 140 [ 115 Cal.Rptr.2d 614 , 38 P.3d 461 ]; People v. Marshall (1997) 15 Cal.4th 1 , 24 [ 61 Cal.Rptr.2d 84 , 931 P.2d 262 ].)

Here, the record is replete with instances in which defendant was warned of the dangers and disadvantages of self-representation, both orally and in writing, in both the municipal and superior courts. For example, defendant was orally warned that representing himself was unwise, that the prosecutor was an experienced lawyer who would have an advantage over him, that as an in propria persona defendant he would receive no special consideration from the court, that he would be unable to claim ineffective assistance of counsel on appeal, that as his own attorney it would be difficult to be objective, and that a death penalty case involved special risks. These oral advisements sufficed to apprise defendant of the dangers and disadvantages of self-representation.

Further, defendant in writing expressed his understanding, on the “Pro. Per. Advisement Form” and “Petition to Proceed in Propria Persona,” of the charge against him and the possible penalties, including death. He further acknowledged, in writing, that he would have to handle pretrial, trial, and many posttrial matters himself without the assistance of an attorney, and that he would have to comply with all substantive and procedural rules, which

Defendant further argues that the court made no attempt to determine whether he understood there would be limitations on his ability to investigate defenses and arrange for the assistance of experts. But again, we have rejected contentions that such detailed advisements are necessary. (People v. Koontz, supra, 27 Cal.4th at pp. 1072-1073 [failure to advise defendant regarding restrictions on library privileges and investigations did not vitiate waiver]; People v. Jenkins (2000) 22 Cal.4th 900 , 1042 [ 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ] [noting lack of authority for defendant’s claim that trial court must advise a defendant seeking in propria persona status “of each limitation upon his ability to act effectively as counsel that will flow from security concerns and facility limitations”].) Further, as discussed more fully below, defendant received library privileges as well as the services of investigators, a legal “runner,” and experts. Nothing in the record suggests that defendant’s decision to proceed in propria persona depended on his understanding of his library privileges or his ability to consult with experts. (See People v. Koontz, supra, 27 Cal.4th at p. 1073; People v. Jenkins, supra, 22 Cal.4th at p. 1042.)

2. Trial court’s failure to declare a doubt concerning defendant’s competence to waive counsel

Defendant contends that his Fifth, Sixth, and Fourteenth Amendment rights to the assistance of counsel and to due process and a fair trial, as well as his rights under state statutory law, were violated when, at two points in these proceedings, the trial court failed to declare a doubt concerning defendant’s competence to waive his right to counsel and failed to conduct a hearing into defendant’s competency. First, defendant contends that Judge Henry R Nelson (who had presided over his trial in the attempted murder case, and who briefly presided during pretrial proceedings in the present case) should

Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. (§§ 1367, 1368; Drope v. Missouri (1975) 420 U.S. 162 , 181 [ 43 L.Ed.2d 103 , 95 S.Ct. 896 ]; Pate v. Robinson (1966) 383 U.S. 375 , 384-386 [ 15 L.Ed.2d 815 , 86 S.Ct. 836 ]; People v. Welch (1999) 20 Cal.4th 701 , 737-738 [ 85 Cal.Rptr.2d 203 , 976 P.2d 754 ].) Failure to declare a doubt and to conduct a competency hearing when there is substantial evidence of incompetence requires reversal of the judgment. (Ibid.)

Whether the question for the trial court is competence to stand trial or competence to waive counsel and represent oneself, the competence standard is the same: the defendant must have a “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and . . . a rational as well as [a] factual understanding of the proceedings against him.’ ” (Dusky v. United States (1964) 362 U.S. 402 , 402 [ 4 L.Ed.2d 824 , 80 S.Ct. 788 ]; see also Godinez v. Moran (1993) 509 U.S. 389 , 399-400 [ 125 L.Ed.2d 321 , 113 S.Ct. 2680 ]; People v. Stewart (2004) 33 Cal.4th 425 , 513 [ 15 Cal.Rptr.3d 656 , 93 P.3d 271 ].) The focus of the inquiry is the defendant’s mental capacity to understand the nature and purpose of the proceedings against him or her. (Godinez v. Moran, supra, 509 U.S. at p. 401, fn. 12; People v. Koontz, supra, 27 Cal.4th at p. 1069.) The defendant’s “ ‘technical legal knowledge’ ” is irrelevant. (People v. Bradford, supra, 15 Cal.4th at p. 1364, quoting Faretta, supra, 422 U.S. at p. 834.)

a. Judge Nelson’s failure during pretrial proceedings to declare a doubt concerning defendant’s competence and to conduct a competency hearing

As mentioned above, defendant premises his first claim that the court erred in failing to declare a doubt about his competence to waive his right to counsel solely on knowledge concerning defendant that Judge Henry R Nelson, who briefly presided over pretrial proceedings in this case long after

“Apparently the military, the Marine Corps discharged you, and according to you, for too many [AWOL’s]. So maximum sentence in this case is not enough. [][]... [f]

“You, who ruined one woman’s life, put her in a vegetative state, ruined another woman, the most you can get is 14 years and 4 months ....

“But all this is just a joke to you, and I can see that’s true. Because, as I say, that’s your problem.”

Judge Nelson then imposed the maximum sentence.

Nearly two years later, as a result of defendant’s statutory peremptory challenge (see Code Civ. Proc., § 170.6) to the judge then presiding, Judge Roger W. Boren, the present capital case was assigned to Judge Nelson for a brief period beginning on May 1, 1987. As described in the previous part, defendant had been representing himself since October 1986, having been questioned and admonished by various judges regarding his self-representation. In an answer to a challenge for cause filed against him by defendant, Judge Nelson acknowledged having expressed “regret” during the attempted murder sentencing “that the sentence could not have been longer, since the evidence indicated a cold, calculated attempt to kill one woman, and almost causing the death of another woman through that attempt. The Defendant’s actions, as well as his demeanor before me (he secreted an exhibit into the holding tank and flushed it down the drain), indicate a dangerous psychopath, and I did say so.”

Some time later that summer, Judge Nelson was reassigned to another department. During the brief period Judge Nelson presided over this case, the issue of defendant’s competence to waive counsel or to represent himself never arose. Judge Nelson did not preside over any further proceedings in this case.

Defendant contends that because Judge Nelson had presided over defendant’s attempted murder trial in 1985, he was aware in 1987—when he was assigned to this capital case—of facts that should have raised a bona fide doubt in his mind whether defendant was competent to waive counsel and represent himself in the capital trial. Therefore, defendant claims, Judge Nelson erred in failing to declare a doubt concerning defendant’s competence and to conduct a competency hearing in 1987. Defendant observes that Judge Nelson was aware, from the probation report in the attempted murder case, that defendant had been (1) found insane in a criminal proceeding in 1972 and confined to Atascadero State Hospital for several months; (2) unable to hold a job during his adult life; and (3) discharged from the military for being AWOL on an excessive number of occasions.

Similarly, the evidence of defendant’s possible mental instability did not amount to substantial evidence of incompetence to waive counsel at the time of the capital trial. Defendant’s confinement at Atascadero State Hospital in 1972 suggested that he might have been suffering from a mental illness at that time, and Judge Nelson noted that defendant appeared to have had “previous bouts with psychiatric disability.” The Atascadero confinement was in 1972, however, 12 years before the present crimes took place, and there was nothing in the record of this case pertaining to the period between 1972 and 1987 to indicate that defendant might be mentally ill at the time of the capital trial. (See People v. Stewart, supra, 33 Cal.4th at pp. 516-517.)

Moreover, even a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt concerning a defendant’s competence and to conduct a hearing on that issue. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494 , 508 [ 21 Cal.Rptr.3d 575 , 101 P.3d 478 ] [defendant must exhibit more than a preexisting psychiatric condition to be entitled to a competency hearing].) We have found that evidence of more serious mental disturbances than defendant displayed did not amount to substantial evidence of incompetence requiring a competency hearing. (See, e.g., People v. Ramos, supra, 34 Cal.4th at pp. 508-511 [defendant’s death wish, history of psychiatric treatment, planned suicide attempt, propensity for violence, and psychiatric testimony that defendant was physically abused as a child and suffered from a paranoid personality disorder did not constitute substantial evidence of incompetence requiring court to conduct a competency hearing].) Here, the circumstance that defendant had been found insane in a criminal proceeding and had been confined to a mental hospital for an unspecified period approximately 15 years prior to the present trial, without more, was insufficient to compel a doubt whether defendant had the mental capacity to understand the proceedings against him in the current prosecution.

Nor did Judge Nelson’s 1985 statement that defendant was a “psychopath” indicate that Judge Nelson entertained or should have entertained a doubt

We also note that defendant overstates what is reflected in the record. After fully exploring a possible insanity defense in the attempted murder case, defendant’s counsel informed Judge Stromwall that the insanity issue “is no longer involved in this matter” and stated his belief that there was nothing that would impair defendant from representing himself. Further, although Judge Blackwell denied defendant’s request for self-representation on the ground that defendant could not “read or write simple English” (because he did not follow all the instructions in filling out the pro. per. advisement form), that finding appears to be incorrect, in view of defendant’s demonstrated ability, which we already have noted, in the preparation of numerous pro se filings. Moreover, Judge Munoz did not find that defendant could not understand the saying about a lawyer trying his own case being a fool. Accordingly, none of these asserted facts compelled the expression of a doubt concerning defendant’s competence to waive counsel.

Finally, we note that defendant’s advisory counsel did not advise Judge Nelson that defendant’s competence might be in issue. In sum, there was no substantial evidence of incompetence requiring Judge Nelson to declare a doubt concerning defendant’s competence and to conduct a competency hearing at his capital trial. (See §§ 1367, 1368.)

b. Judge Krieger’s failure between the guilt and penalty phases to declare a doubt concerning defendant’s competence and to conduct a competency hearing

Defendant’s second claim of error is premised upon the failure of the trial judge, Judge Krieger, who had observed defendant’s performance at the guilt phase, to declare a doubt concerning defendant’s competence when defendant’s advisory counsel raised the issue between the guilt and penalty phases.

At an ex parte hearing on May 8, 1989, after the guilt verdict had been rendered but before the penalty phase began, defendant’s additional advisory counsel, Lucas, informed the court that the defense was preparing to have a psychiatrist interview defendant. Lucas added that he believed defendant might not be competent to represent himself or to stand trial. The court disagreed: “Having seen [defendant] in the past month and a half, I don’t find

The next court day, May 10, 1989, Lucas again raised the issue of defendant’s competence to represent himself. Lucas explained that, having observed defendant through the guilt phase, he did not believe that defendant was “competent legally to undertake the representation he’s done.” When the court asked him to clarify this statement, Lucas replied: “I’m talking about his legal competency ... I’m not saying that he has a mental problem at this point, and I haven’t raised that issue.” Co-advisory counsel Newman, however, added: “I would be inclined to say that a lot of it is mental, too. I don’t think [defendant]—though him and I disagree on that—is mentally competent to represent himself.” The court again disagreed with both attorneys, finding defendant possessed a “good grasp of a lot of legal issues” and appeared “mentally stable.” Newman observed that there had been “an incarceration of [defendant] at Atascadero State Hospital” and asked the court, over defendant’s objection, to declare a doubt as to defendant’s competency. The court replied: “I have no doubt as to his competency, his mental capacity and his sanity.” Newman then said that over the years he had tried to persuade defendant to be examined by a psychiatrist, but defendant had refused. When the court asked defendant whether he was requesting the appointment of a psychiatrist, defendant stated: “No. I made my position clear ... to both advisory counsel, that I am not—I’m not raising an incompetency hearing nor an insanity—nor an insanity issue.” Defendant reiterated that he wished to represent himself at the penalty phase as well, and that he understood “the drawbacks” of that course of action.

Later that day, during an in camera hearing regarding defense strategy held in the prosecutor’s absence, Newman stated for the record that he and Lucas had advised defendant to be examined by a psychiatrist, to consider calling family members or friends as penalty phase witnesses, and to consider introducing his Atascadero State Hospital records, but that defendant had refused to do so. Newman told the court that there were “records from Atascadero State Hospital that I think would have a bearing—I think would have had a bearing also as far as the guilt phase and the penalty phase.” Newman said he had long believed “that Mr. Blair might have some mental deficiency that would have been to the benefit at least as to the guilt phase and definitely of some benefit as to the penalty phase.” Lucas added that defendant had “spent 95 percent of his time writing writs, writing and thinking writs. He has spent absolutely no significant time in preparation of this case.”

Judge Nelson remained assigned to this case until some time later that summer, when another judge was assigned. After that time, the court, the prosecutor, and the defense resumed occasionally referring to Newman as “associate counsel.” Subsequently, the case was assigned to Judge Candace Cooper in January 1988. Judge Cooper initially expressed some confusion concerning Newman’s status. For example, on February 26, 1988, she said to Newman: “I’m not sure if it’s cocounsel or advisory counsel [capacity] that you are working in.” Then again on January 10, 1989, she asked Newman “is it advisory or cocounsel technically?” Newman responded: “It’s been both. I’m not sure which one.” At all times, however, Judge Cooper made clear that defendant was his own attorney. For example, on March 11, 1988, she stated: “Mr. Blair, you are your own counsel in this matter. You have cocounsel with you.” And again, on January 10, 1989, she said: “Nonetheless, Mr. Blair is pro. per. I expect this matter to move along.”

Finally, on March 6, 1989, Judge Cooper denied a further continuance that defendant had requested based on Newman’s involvement in another trial. In defendant’s presence, the court addressed Newman: “I understand that. You are, however, advisory counsel, not trial counsel. Mr. Blair can try this matter. He has been pro. per. and advisory counsel is not standby counsel. It is not backup counsel. It is advisory counsel.” When Newman again began to argue

Ultimately, the parties appeared for trial on March 17, 1989. Judge Cooper was unavailable, so the case was assigned to Judge Krieger. Because Newman was involved in another capital trial, the court agreed to continue the matter for a few days to allow Newman to locate additional advisory counsel. The court, however, denied a lengthy continuance, reasoning that defendant, not Newman, was counsel of record. The court reiterated to defendant, “You’re still pro. per. status. He [Newman] is only advising.” The court also indicated it would grant a continuance if defendant gave up his in propria persona status, but defendant refused. The court explained to defendant: “Well, it seems to me that with your pro. per. status then you’re not engaged in another trial. If you relinquished your pro. per. status and Mr. Newman were your attorney of record, then the attorney of record is engaged in another trial or will be and, therefore, there is that distinction to be made.”

A few days later, the court appointed Lonzo Lucas as additional advisory counsel. The court later denied a 60-day continuance to allow Lucas to familiarize himself with the case, reasoning that defendant, as counsel, was prepared to try the case.

Jury selection began on March 22, 1989. Thereafter, either Newman or Lucas, or both, was present in court on each trial day, except during jury deliberations when counsel were on call. The court ruled that only defendant would be allowed to address the court when the jury was present, and told prospective jurors that defendant was representing himself “assisted” by Lucas and Newman.

Upon defendant’s request, the court permitted Newman to deliver defendant’s guilt phase closing argument, but only after defendant expressly waived “any objection to any change in tactics or emphasis” that Newman might make. Again upon defendant’s request, and after defendant again waived his right to object to any change in tactics, defendant’s additional advisory counsel, Lucas, presented the defense penalty phase closing argument. Lucas also argued the automatic motion to modify the verdict.

b. Discussion

Under the Sixth Amendment, “[defendants who have elected self-representation may not thereafter seek reversal of their convictions on the ground that their own efforts were inadequate and amounted to a denial of effective assistance of counsel. [Citation.] This rule applies whether or not the

Accordingly, “[t]o prevail on a claim that counsel acting in an advisory or other limited capacity has rendered ineffective assistance, a self-represented defendant must show that counsel failed to perform competently within the limited scope of the duties assigned to or assumed by counsel [citations], and that a more favorable verdict was reasonably probable in the absence of counsel’s failings [citations]. A self-represented defendant may not claim ineffective assistance on account of counsel’s omission to perform an act within the scope of duties the defendant voluntarily undertook to perform ... at trial.” (People v. Bloom, supra, 48 Cal.3d at pp. 1226-1227, italics in original.) However, “[a]s to those aspects of the representation over which counsel retains control, counsel remains responsible for providing constitutionally effective representation, and the defendant may assert a claim of ineffective assistance of counsel.” (People v. Mendoza (2000) 24 Cal.4th 130 , 157 [ 99 Cal.Rptr.2d 485 , 6 P.3d 150 ].)

Defendant contends that Newman was effectively “associate counsel” until the eve of trial when, on March 6, 1989, the court denied the defense request for a continuance based on Newman’s involvement in another trial. Defendant argues that forcing him to go to trial without Newman’s assistance was analogous to removing a represented defendant’s chosen attorney on the eve of trial in violation of the Sixth Amendment right to counsel. We disagree.

“[T]he powers and responsibilities which attend the representation of a criminally accused person should never be conferred jointly and equally on the accused and the attorney. Rather, in all cases of shared or divided representation, either the accused or the attorney must be in charge. Stated otherwise, at all times the record should be clear that the accused is either self-represented or represented by counsel; the accused cannot be both at once.” (People v. Bloom, supra, 48 Cal.3d at pp. 1218-1219; accord,

Here, the record unfortunately reflects some initial confusion as to the scope of Newman’s role when the court first appointed him in November 1986, because the court used both the term “associate counsel” and the term “standby counsel.” Any initial confusion was dispelled, however, in May 1987, when Judge Nelson clarified that the court would not permit defendant and Newman to share defendant’s legal representation, and that Newman was solely advisory counsel. The record suggests that defendant understood the limits of advisory counsel’s role, because in arguing for a continuance based on Newman’s unavailability, defendant cited People v. Bigelow (1984) 37 Cal.3d 731 [ 209 Cal.Rptr. 328 , 691 P.2d 994 ], in which we explained that advisory counsel acts as an advisor or consultant only.

Thus, from May 1987 forward, the record reflects no reasonable basis for defendant to have believed that he would not be expected to try the case himself. Although various judges may have expressed confusion concerning Newman’s status, at each point it was made clear that defendant alone was counsel of record. As early as March 11, 1988, more than a year before the trial began, Judge Cooper emphasized that defendant was his own counsel and was therefore responsible for determining which defense motions to bring. On January 10, 1989, she reiterated that she expected the case to “move along” despite Newman’s possible unavailability, because “Mr. Blair is pro. per.” And Judge Krieger, who presided over the actual trial, made it crystal clear that defendant was in charge. Judge Krieger gave defendant the option of relinquishing his in propria persona status in exchange for a continuance to allow Newman to assume defendant’s representation, but defendant refused.

That the court granted several continuances based on Newman’s unavailability is not inconsistent with a proper understanding of Newman’s limited role as advisory counsel. Before delivering the guilt phase closing argument, Newman confirmed that defendant had been in charge of trial strategy all along and that Newman, as advisory counsel, had not had the power to subpoena witnesses or to tell defendant which witnesses to call. Thus, there is no merit in defendant’s contention that he somehow was deprived of appointed counsel at the last minute.

Defendant contends that even if Newman was solely advisory counsel, he performed incompetently “within the limited scope of the duties” he had assumed. (People v. Bloom, supra, 48 Cal.3d at p. 1226, italics omitted.) Below we address each of defendant’s contentions that either Newman or defendant’s additional advisory counsel, Lucas, performed incompetently.

Defendant contends that Newman could not possibly have rendered effective assistance, because he was absent from the courtroom for more than half of the trial. We disagree. We never have held that advisory counsel must be present during the entire trial. In any event, here defendant had the assistance of additional advisory counsel, Lucas, at trial; the court appointed Lucas as additional advisory counsel specifically to assume Newman’s role in Newman’s absence. Lucas was present on each of the days that Newman was not, and defendant points to nothing in Lucas’s representation on those days that was not competent.

Relying upon State v. Parson (Minn.Ct.App. 1990) 457 N.W.2d 261 , 263, defendant contends that advisory counsel at a minimum should be present in court during the trial. That case, however, dealt with standby counsel, not advisory counsel. The two roles are distinct. “Standby counsel” is an attorney appointed for the benefit of the court whose responsibility is to step in and represent the defendant if that should become necessary because, for example, the defendant’s in propria persona status is revoked. (People v. Clark (1992) 3 Cal.4th 41 , 149 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ]; People v. Hamilton (1989) 48 Cal.3d 1142 , 1164, fn. 14 [ 259 Cal.Rptr. 701 , 774 P.2d 730 ].) “Advisory counsel,” by contrast, is appointed to assist the self-represented defendant if and when the defendant requests help. (People v. Hamilton, supra, 48 Cal.3d at p. 1164, fn. 14; see also Littlefield v. Superior Court (1993) 18 Cal.App.4th 856 , 858 [ 22 Cal.Rptr.2d 659 ]; People v. Kurbegovic (1982) 138 Cal.App.3d 731 , 757 [ 188 Cal.Rptr. 268 ].) Here, whatever Newman’s status when he initially was appointed, the court subsequently made clear that he was solely advisory counsel. As such, there was no requirement that he be present at each court session, particularly because additional advisory counsel Lucas was present when Newman was not.

Defendant next contends that “it was Newman’s job to prepare the defense experts for trial,” yet Newman did so ineffectively, with the result that “the defense that was supposed to be asserted, that the cause of death was not the cyanide but some other intervening cause, was never presented.” In this regard, defendant observes that Judge Krieger denied defendant’s request to instruct the jury on “intervening cause” because there was no evidence presented to support that instruction.

We first note that nothing in the record supports defendant’s contention that Newman assumed full responsibility for preparing defense experts. Even assuming he had done so, defendant’s claim would fail. Defendant contends in effect that Newman failed to meet in advance with the defense experts— Dr. Latif and Dr. Itabashi—and failed to provide them with sufficient information to testify effectively for the defense.

At the time of defendant’s trial, section 987.9 provided, as it does today in subdivision (a), that “the fact that an application [by an indigent defendant for reasonably necessary funds for the payment of experts] has been made shall be confidential and the contents of the application shall be confidential.” The confidentiality provision evidently was intended to prevent the prosecution from anticipating defense strategy. (People v. Anderson (1987) 43 Cal.3d 1104 , 1132 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ].)

Despite the existence of this confidentiality provision, Newman requested the appointment of Dr. Root in open court in the presence of the prosecutor, who informed the defense and the court that he knew Dr. Root on a social basis and had called him as a witness several times. Newman also filed an unsealed, written motion requesting the appointment of Dr. Root. After the defense had presented its case-in-chief, however, Newman informed the court that the defense would not be calling Dr. Root. The prosecutor then stated; “Dr. Root is here. The defense told Dr. Root to leave. But I had a chance to talk to Dr. Root briefly, and I intend to call Dr. Root.” Dr. Root then testified in the prosecution’s rebuttal case that, contrary to the defense position, cyanide poisoning caused the brain damage and pneumonia that led to Green’s death. Newman later informed the court that he had advised defendant against calling Dr. Root to testify, but defendant had subpoenaed him anyway.

The record does not reflect whether Newman had a tactical basis for declining to keep Dr. Root’s appointment confidential, and it would be proper for us to reject defendant’s contention on this basis. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

In any event, defendant fails to establish that the failure to keep Dr. Root’s appointment confidential prejudiced him. It was defendant’s own choice to subpoena Dr. Root against Newman’s advice, and it was that subpoena that brought Dr. Root to court and resulted in the prosecutor’s interview with him. Moreover, even had the prosecutor never learned of Dr. Root’s opinion concerning defendant’s case and never called him to testify, it is not reasonably probable that the outcome of the guilt phase would have been different. (See People v. Bloom, supra, 48 Cal.3d at pp. 1226-1227.) The prosecution presented the testimony of Green’s treating physician, Dr. Becker, who testified that cyanide poisoning caused her brain damage and resulting

Defendant next contends that Newman and Lucas both failed to present to the court evidence in their possession that would have raised a doubt concerning defendant’s competence to stand trial. As noted above, during hearings held on May 8 and 10, 1989, outside the presence of the jurors and the prosecutor, defendant’s advisory counsel Newman and Lucas expressed their belief that defendant might not be competent to waive counsel or to represent himself, and mentioned the existence of records from defendant’s confinement at Atascadero State Hospital in 1972. Nonetheless, neither Newman nor Lucas submitted to the court any records or other evidence to substantiate these claims.

The record reflects that defendant did not want to be examined by a psychiatrist and prevented his advisory attorneys from investigating a mental state defense. Further, in response to the court’s question whether defendant wanted the court to appoint a psychiatrist to examine him, defendant specifically stated that he was “not raising [sic] an incompetency hearing.” Assuming for the sake of argument that it is within advisory counsel’s role to bring to the court’s attention evidence in support of a finding of incompetence even over a self-represented defendant’s objection, on the present record we discern no prejudice from advisory counsel’s failure to do so. The Atascadero records are not before us in the record on appeal. We thus have no way to determine whether those records would have caused the trial court to declare a doubt concerning defendant’s competence to stand trial or to waive counsel. Accordingly, we reject defendant’s contention.

4. Asserted denial of access to ancillary defense resources

Defendant claims a violation of his Fourteenth Amendment right to equal protection of the laws, his Sixth Amendment right to self-representation, and his Fifth and Fourteenth Amendment rights to due process of law and a fair trial, due to the trial court’s alleged denial of reasonable ancillary defense resources such as investigators, experts, and legal materials.

a. Facts

At defendant’s first appearance in the superior court on October 21, 1986, he requested $2,500 for an investigator and for travel and supplies. Judge Munoz denied that request but ordered that defendant be provided with the “normal” indigent funds and supplies. The court also agreed to appoint an investigator from the superior court panel, but defendant did not select an investigator at that time.

In late January 1987 defendant filed a motion to suppress evidence, asserting that Detective Jackson’s search of defendant’s briefcase and wallet in 1984 was unreasonable. The hearing on this motion was continued numerous times until it was finally heard in April 1989. In the meantime, on March 4, 1987, Judge Roger Boren, to whom the case had been assigned, ordered a reporter’s transcript of the attempted murder trial delivered to defendant for his use in preparing for the hearing on the motion to suppress. At an ex parte hearing held in early April, Judge Boren ordered certain legal and medical books and articles provided to defendant. On April 24, 1987, defendant’s advisory counsel, Newman, stated that defendant was having difficulty accessing his in propria persona and investigation funds. Judge Boren issued an order clarifying that defendant was to receive a total of $40 for telephone and stamps, payable at $10 per week, as well as “those supplies regularly and normally . . . provided without cost to other persons who are in propria persona.” The order allowed defendant to direct any request for additional funds or supplies to the court.

On May 4, 1987, defendant advised Judge Nelson, to whom the case recently had been transferred, that he recently had received the transcript of the attempted murder trial. When defendant complained a few days later in the master calendar court about the $40 limit on in propria persona funds, Judge Munoz explained that the $40 was intended only to cover incidental expenses, and stated: “If you need experts, you will get experts, pay them just like we do with other attorneys.”

On June 10, 1987, on defendant’s motion, Judge Munoz appointed Robert Sabel as defendant’s investigator and issued an order authorizing payment “not to exceed $3,000 without further order of court.”

Between July 1987 and February 1988, the case was continued several times and was reassigned to Judge Candace Cooper. During that period, defendant moved for an order to preserve tissue samples taken from Green’s organs after her death, for examination by a defense pathologist. The prosecutor agreed to have the samples sent from Michigan, where Green had died, to the coroner’s office in Los Angeles. Upon defendant’s request, the court ordered the reporter’s transcript of the May 31, 1985, proceedings in the attempted murder trial prepared and filed. The court denied, however, defendant’s request for additional legal books and other materials.

In June 1988 the parties agreed to continue the trial until January 1989, in part because Dr. Root had not yet examined Green’s tissue samples. On July 8, 1988, the parties appeared before Judge Cooper for a hearing on defendant’s discovery motion. Defendant asked for a copy of any fingerprint analysis conducted by the prosecution on the gin bottle and the box it came in, and asked that the bottle and box be released to a defense fingerprint expert. Defendant also complained that a page was missing from the defense copy of the “murder book” (the district attorney’s collection of relevant police reports), which had been turned over to defendant in March of 1987. The missing page documented the death of Michelle Dubois, the woman Rhoda Miller had visited on the day of the poisoning. Defendant suggested that the district attorney or his agents might have taken the page from his cell during a search. Judge Cooper declined to inquire into the legality of any searches of defendant’s cell, but stated she would order the prosecutor to deliver to the defense a new copy of the page involving Dubois, as well as any prosecution fingerprint analysis of the gin bottle and box.

After another continuance, on March 16, 1989, the court set this matter for trial the next day. Because Judge Cooper was unavailable, the case was reassigned to Judge Krieger.

On March 17, 1989, before Judge Krieger, the prosecutor agreed to arrange for the defense expert, Dell Freeman, to examine the gin bottle, the box it came in, and other relevant items. When defendant complained that he had not received the missing page from the murder book, the court stated that Judge Cooper’s order regarding the page was still in effect, and that the prosecutor would turn it over to defendant if and when it was found.

Jury selection began on March 22, 1989. Later that day, Judge Krieger appointed Malcolm Everest as defendant’s replacement investigator after defendant explained that his previous investigator, Robert Sabel, had resigned. The court’s order provided funds of up to $1,500 for Everest’s services.

During jury selection on March 30, Judge Krieger formalized the appointment of Dell Freeman as defendant’s fingerprint expert. The prosecutor stated that the gin box and bottle would be available for Freeman to examine at the Los Angeles Police Department.

Judge Krieger heard and denied defendant’s suppression motion on April 17, 1989. The parties presented opening statements and the prosecution began its case-in-chief that same day. The next day, defendant again complained that the defense had been unable to contact his replacement investigator, Richards. The court ordered Richards to appear in court on April 20 to meet with defendant.

The prosecution rested its case-in-chief on April 24, 1989. Dell Freeman testified for defendant the following day. Ultimately, defendant declined to call Dr. Root, but the prosecution called him on April 28, 1989, in its rebuttal case. Dr. Root testified that Green died from cyanide poisoning.

Between October 1987 and July 1988, defendant’s initial investigator, Robert Sabel, submitted four fee statements seeking reimbursement for a total of $4,426.57 for 177 hours worked, plus expénses. On each statement, defendant acknowledged that he had requested all of the services performed. Neither of defendant’s subsequent two defense investigators (Everest or Richards) submitted billing statements.

b. Discussion

Defendant contends that the equal protection clause of the Fourteenth Amendment to the United States Constitution demands “parity” between the ancillary services provided to an indigent defendant who represents himself or herself and an indigent defendant represented by counsel. Defendant contends that parity was denied to him and that his Fourteenth Amendment rights therefore were violated. Defendant asserts that even if parity is not required, the alleged denial of ancillary services violated his Sixth Amendment right to represent himself and his Fifth and Fourteenth Amendment rights to due process of law and a fair trial.

Our analysis begins with a discussion of the constitutional and statutory bases of a criminal defendant’s right to ancillary defense services. “[T]he right to counsel guaranteed by both the federal and state Constitutions includes, and indeed presumes, the right to effective counsel [citations], and thus also includes the right to reasonably necessary defense services. [Citations.]” (Corenevsky v. Superior Court (1984) 36 Cal.3d 307 , 319-320 [ 204 Cal.Rptr. 165 , 682 P.2d 360 ], fns. omitted.) Section 987.9 codifies this right

As section 987.9 makes clear, the right to ancillary services arises only when a defendant demonstrates such funds are “reasonably necessary” for his or her defense by reference to the general lines of inquiry that he or she wishes to pursue. (Corenevsky v. Superior Court, supra, 36 Cal.3d at p. 320.) This requirement applies both to indigent defendants represented by counsel and to those who choose to represent themselves. (See People v. Faxel (1979) 91 Cal.App.3d 327 , 330-331 [ 154 Cal.Rptr. 132 ] [interpreting the analogous provision for noncapital cases, section 987.2].) The court held in Faxel that the “necessary parity between the indigent defendant and others” required by the equal protection clause “is to be achieved not by permitting the indigent to spend public funds at his whim but rather by administration” of the reasonable necessity requirement. {Faxel, supra, at p. 331.) Assuming the equal protection clause also demands parity between the services provided to indigent defendants represented by counsel and those provided to individuals representing themselves, such parity is to be achieved in the same manner.

As for the Sixth Amendment, we have recognized that depriving a self-represented defendant of “all means of presenting a defense” violates the right of self-representation. (People v. Jenkins, supra, 22 Cal.4th at p. 1040, citing Milton v. Morris (9th Cir. 1985) 767 F.2d 1443 , 1445-1446.) Thus, “a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.” (People v. Jenkins, supra, 22 Cal.4th at p. 1040.) Yet, as we have observed, “[(Institutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense. [Citations.] When the defendant has a lawyer acting as advisory counsel, his or her rights are adequately protected. [Citations.]” {Ibid.) In the final analysis, the Sixth Amendment requires only that a self-represented defendant’s access to the resources necessary to present a defense be reasonable under all the circumstances. (See People v. Jenkins, supra, 22 Cal.4th at pp. 1040-1041.)

Defendant further asserts that Sahel interviewed only one witness during the entire time he worked for defendant and spent most of his time preparing and filing writ petitions. This, however, apparently was how defendant chose to use his investigator. Defendant acknowledged requesting all of the services performed by Sabel. He cannot premise a claim of error upon his own failings as counsel. (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.)

Defendant next complains he was denied access to expert witnesses. Again, he is mistaken. The court appointed Dr. Irving Root as defendant’s expert pathologist immediately upon defendant’s formal request. The prosecution made Green’s tissue samples available for Dr. Root to examine. That Dr. Root’s conclusions were not favorable to the defense, and that he ultimately did not testify on defendant’s behalf, is immaterial; defendant was given access to and funding for the expert he chose, which is all that the law requires. The court also appointed Dell Freeman as defendant’s fingerprint expert, and the prosecution made the gin bottle, box, and wrapping available for Freeman to examine. Freeman subsequently testified favorably for the defense. Although Freeman may not have been appointed as expeditiously as defendant would have liked, defendant has not established prejudice from any delay.

Defendant next contends that his access to documents and discovery materials was inadequate. He observes that it took more than a year for the transcript of the attempted murder trial to be delivered to him. Defendant first requested the transcript on March 4, 1987. The bulk of the transcript was delivered by May 1987. Although the record does not reflect the precise date on which defendant received the final portion of the transcript—that portion reporting the May 31, 1985, proceedings—it is reasonable to assume that he received that material shortly after his last request for it on March 11, 1988, well before the start of jury selection in March 1989 and the suppression hearing the following month. No prejudice appears from any delay in the completion and delivery of the transcript. Defendant also contends he never received the missing page from the murder book involving Michelle Dubois. The court did indicate it would order a copy of that page delivered to defendant, but it apparently never issued a formal order, and the prosecution later disputed that any order existed. Even assuming the prosecution should have supplied defendant with a copy of the missing page, defendant was not prejudiced. The page apparently documented the fact that Dubois had died, something the prosecution brought out at trial. We fail to see how such information would have assisted the defense.

In the alternative, defendant argues that permitting him to preclude any investigation and presentation of mitigating evidence at the penalty phase violated his right to a reliable penalty determination under the Eighth Amendment to the federal Constitution. We have rejected this contention as well. (People v. Bloom, supra, 48 Cal.3d at pp. 1227-1228.) As we have explained, a rule requiring a pro se defendant to present mitigating evidence would be unenforceable and self-defeating. (Ibid.; see also People v. Koontz, supra, 27 Cal.4th at pp. 1073-1074; People v. Bradford, supra, 15 Cal.4th at pp. 1364-1365.)

Defendant contends that the United States Supreme Court’s decision in Martinez v. Superior Court (2000) 528 U.S. 152 [ 145 L.Ed.2d 597 , 120 S.Ct. 684 ] (Martinez) undermines these conclusions. The high court in Martinez addressed whether the right to self-representation extends to the appeal of a criminal conviction. The high court first noted that Sixth Amendment rights are trial rights that do not apply to an appeal, which is not constitutionally compelled but is purely a “creature of statute.” Accordingly, any right to self-representation on appeal must be grounded in the due process clause. (528 U.S. at pp. 159-161.) The court in Martinez then proceeded to reason that because the status of the accused “changes dramatically” after he or she is found guilty—from a presumptively innocent defendant who is “haled into” court by the state, to one found guilty beyond a reasonable doubt who initiates the appeal to attack the conviction—states are free on appeal to conclude that the defendant’s autonomy interests no longer outweigh the state’s interests in the integrity and efficiency of the proceedings. (Id. at pp. 161-163.) Thus, there is no constitutional right to self-representation on appeal. (Id. at pp. 163-164.)

Defendant contends that the rationale of Martinez compels the conclusion that there is no right to self-representation at the penalty phase, because (1) the penalty phase of a capital trial, like an appeal, is a “creature of statute,” and (2) at the penalty phase, as on appeal, the defendant has been found guilty beyond a reasonable doubt and thus his autonomy interests are sufficiently diminished to be overridden by the state’s interests in a fair and reliable penalty determination.

We are not persuaded. First, as we have explained, for Sixth Amendment purposes the penalty phase of a capital case is “ ‘merely a stage in a unitary capital trial.’ ” (People v. Hardy (1992) 2 Cal.4th 86 , 194 [ 5

In any event, the trial court properly denied each of defendant’s challenges for cause. “Applying Wainwright v. Witt, supra, 469 U.S. 412 , 424 . . . , we have stated that ‘ “[i]n a capital case, a prospective juror may be excluded if the juror’s views on capital punishment would ‘prevent or substantially impair’ the performance of the juror’s duties.” [Citations.] “A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.” [Citation.]’ [Citation.] In addition, ‘ “[o]n appeal, we will uphold die trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.” [Citations.]’ ” (People v. Jenkins, supra, 22 Cal.4th at p. 987.)

Here, each of the challenged jurors initially expressed some variation of the view that he or she would vote for the death penalty in all cases of intentional, deliberate, or premeditated murder. Nonetheless, after the trial court and sometimes the prosecutor explained that the death penalty was not mandatory if the defendant was found guilty of murder with special circumstances, but instead that there would be a separate penalty phase at which the parties would have the opportunity to present aggravating and mitigating evidence relevant to punishment, each juror expressed a willingness to consider all of the evidence and both available penalty options before deciding on the appropriate punishment. The record thus supports the trial court’s conclusion that none of the challenged jurors held views that would prevent or substantially impair the performance of the juror’s duties. (Wainwright v. Witt, supra, 469 U.S. at p. 424; People v. Jenkins, supra, 22 Cal.4th at p. 987.) At a minimum, because the jurors’ statements were ambiguous or conflicting, the trial court’s determination of each juror’s true state of mind is binding on us. (People v. Jenkins, supra, 22 Cal.4th at p. 987.)

Defendant asserts that he “used all of his peremptory challenges to excuse these jurors, leaving him no peremptory challenges when the final juror was seated.” To the extent this assertion can be interpreted as a claim that the trial court arbitrarily deprived defendant of peremptory challenges due him under state law in violation of his Fourteenth Amendment right to due process of law (see Hicks v. Oklahoma (1980) 447 U.S. 343 [ 65 L.Ed.2d 175 , 100 S.Ct. 2227 ]), this claim must fail. Defendant received and exercised the 20

2. Guilt phase—second degree murder instruction

Defendant contends the trial court erred by refusing a defense-requested instruction on second degree felony murder.

a. Facts

At a hearing held to determine which jury instructions would be given, defendant orally requested that the court instruct the jury on second degree felony murder. Defendant did not, however, submit a written proposed instruction. The prosecutor opposed defendant’s request, because no underlying felony upon which to base second degree felony murder was charged. Ultimately, the court refused the instruction, stating: “I don’t think there’s evidence of second degree in this situation. It’s—this is or is not [first degree].”

The court instructed the jury by delivering CALJIC Nos. 8.10 (murder defined), 3.31.5 (murder requires the mental state of malice aforethought), 8.11 (malice aforethought defined), 8.23 (murder by poison), 8.80 (special circumstances—introductory), and 8.81.19 (special circumstances—murder by administration of poison). The court further instructed the jury that “poison” means “any substance introduced into the body by any means which by its chemical action is capable of causing death. Cyanide is a poison.”

b. Discussion

The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. (People v. Breverman (1998) 19 Cal.4th 142 , 154 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ] [sua sponte duty]; People v. Wickersham (1982) 32 Cal.3d 307 , 323 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ] [sua sponte duty], overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186 , 201 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]; People v. Flannel (1979) 25 Cal.3d 668 , 684 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ] [duty upon

Here, the information charged defendant with the murder of Green by the administration of poison. “All murder which is perpetrated by means of . . . poison ... is murder of the first degree.” ( § 189; see People v. Catlin (2001) 26 Cal.4th 81 , 149 [ 109 Cal.Rptr.2d 31 , 26 P.3d 357 ]; People v. Diaz (1992) 3 Cal.4th 495 , 568 [ 11 Cal.Rptr.2d 353 , 834 P.2d 1171 ].) This rule applies, however, only to murders—that is, killings by poison when the killer acts with either express or implied malice. (People v. Mattison (1971) 4 Cal.3d 177 , 182-184 [ 93 Cal.Rptr. 185 , 481 P.2d 193 ].) To find express malice, the jury must conclude the defendant intended to kill the victim. To find implied malice, the jury must be satisfied that the defendant “had full knowledge that his conduct endangered the life of decedent, but that he nevertheless deliberately administered the poison with conscious disregard for that life.” (Id. at pp. 183-184.)

If a jury is not satisfied that a defendant acted with either express or implied malice, it may find the defendant guilty of second degree murder on a felony murder theory. At the time the poisoning occurred in 1984, section 347 provided (as it does today) in pertinent part: “Every person who willfully mingles any poison or harmful substance with any food, drink, medicine, or pharmaceutical product . . . where the person knows or should have known that the same would be taken by any human being to his or her injury, is guilty of a felony . . . .” (Stats. 1983, ch. 1172, § 7, p. 4448.) When a person violates section 347 and death results either accidentally or negligently, he or she may be guilty of second degree felony murder. (People v. Mattison, supra, 4 Cal.3d at pp. 184—186.) The intent required to sustain a conviction for second degree felony murder in this context is not an intent to kill, or a conscious disregard for life, but rather the intent to injure or intoxicate the victim. (Id. at p. 186.)

Second degree murder is a lesser included offense of first degree murder. (People v. Bradford, supra, 15 Cal.4th at p. 1344; People v. Cooper (1991) 53 Cal.3d 771 , 827 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ].) Thus, even

The bulk of the evidence in this case suggests that defendant acted, at a minimum, with conscious disregard for Green’s life. The evidence established that defendant believed Green owed him money. Defendant deliberately obtained cyanide—a highly toxic substance—which he carefully placed in a gin bottle so that the bottle appeared sealed. Defendant then had Miller deliver the bottle to Green. Defendant apparently had been Green’s drinking companion and thus would have known that she liked to drink. This course of conduct, including deliberately obtaining a highly toxic substance and concealing its presence in the gin bottle from which he expected Green to drink, evidenced, at a minimum, a conscious disregard for Green’s life (as well as the lives of any others who might drink from the gin bottle), if not a specific intent to kill Green.

Defendant contends that there was evidence from which the jury could have concluded that he intended only to injure Green, pointing to evidence suggesting that he expected to see Miller and Dubois again after the poisoning. For example, William Miller testified that when defendant left Dubois’s apartment after giving the gin bottle to Rhoda Miller, defendant said he would come by to see Dubois in a day or two. Approximately a week later, the day defendant was arrested, defendant told William Miller that he had come by the apartment complex to see Dubois, and he asked where Rhoda Miller was. Further, the circumstances of defendant’s arrest show that he did not expect to be arrested and did not conceal his presence. Finally, Miller became sick but did not die from the poisoning. All of this, defendant argues, suggests he did not expect Green to die.

We disagree that the foregoing constitutes substantial evidence of an intent merely to injure Green. Defendant’s comments to Dubois and to William Miller about returning to see Dubois shed little light on defendant’s intent with regard to Green. Indeed, they suggest either a continuing pattern of concealment or complete ignorance of what had happened to Green and Miller, rather than an intent to injure. Defendant’s inquiry regarding Miller’s whereabouts is equally consistent with an attempt to determine whether or not she was dead as with an expectation to see her alive. We note that defendant did not inquire about Green. Further, what happened to Miller after defendant poisoned her sheds little light on the intent with which he acted.

Defendant contends that the evidence of a motive to kill—consisting solely of Murphy’s testimony that defendant said he wanted to “get” Green because

Additionally, even if we were to conclude that such an instruction was required, its omission would have been harmless. “Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.” (People v. Lewis (2001) 25 Cal.4th 610 , 646 [ 106 Cal.Rptr.2d 629 , 22 P.3d 392 ], citing People v. Sedeno (1974) 10 Cal.3d 703 , 721 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ].) Here, the court instructed the jury that to find true the special circumstance of murder by the administration of poison, it had to find that each of the following facts was proved: “1. The killing was intentional, and 2. Defendant committed the murder by the administration of poison.” Thus, in finding the special circumstance of murder by the administration of poison to be true, the jury necessarily found that defendant intended to kill Green when he poisoned her. Any failure to properly instruct on second degree felony murder therefore would have been harmless. (See People v. Lewis, supra, 25 Cal.4th at p. 646.)

3. Penalty phase—asserted erroneous admission of evidence

Defendant contends that the trial court erred by admitting, at the penalty phase, the testimony of his former chemistry instructor, Emily Maverick, assertedly in violation of his rights under state law and to due process of law, a fair trial, and a reliable penalty phase determination under the Eighth and Fourteenth Amendments to the United States Constitution.

a. Facts

On April 27, 1989, near the end of the guilt phase of the trial, the prosecutor informed the court and counsel that he had subpoenaed defendant’s academic records from Los Angeles City College. The records showed

At a May 8 hearing held between the guilt and the penalty phases, the prosecutor announced his intention to call Emily Maverick to testify that defendant had conducted an experiment with cyanide in one of her classes in the early 1980’s. The prosecutor said he had just identified and spoken with Maverick the previous Friday. Defendant objected that the testimony was irrelevant and also that he had not received proper notice of the prosecutor’s intent to present that evidence. The prosecutor argued that the evidence was relevant to the circumstances of both the crime and the special circumstance, in that it showed that defendant was “familiar with the murder weapon.” The trial court overruled defendant’s objections, stating: “no notice need be given if [the testimony] is connected to the current offense.” Because the defense was asking for a continuance on other grounds, however, the court granted a one-week continuance “in an overabundance of caution.”

Just before Maverick was scheduled to testify, the defense on May 15, 1989, objected to her testimony as outside the scope of section 190.3, factor (a), in that it did not relate to the “circumstances of the offense.” The court disagreed. Defendant then offered to stipulate “that he knows the effects of cyanide and that he knows some of the chemical reactions involving cyanide,” but apparently defendant did not follow up on this proposal.

Maverick testified that defendant had been a student in two of her chemistry classes at Los Angeles City College in 1982. In the organic chemistry class, defendant chose to conduct an experiment that involved dissolving cyanide in water in order to enlarge an organic molecule by adding a carbon atom. Maverick tried to discourage defendant from conducting this experiment, because of the hazardous nature of cyanide, but ultimately she gave her approval. She explained to defendant that cyanide was extremely toxic and taught him to handle it safely. In the course of the experiment, defendant weighed, handled, and moved the cyanide. On cross-examination, Maverick stated that defendant did a “good job” with the experiment and that he had been a chemistry tutor.

During penalty phase closing arguments, the prosecutor argued that defendant’s experience in Maverick’s chemistry class made his crime “all the more heinous” because he had “take[n] that knowledge and ability and do[ne] to Dorothy Green what was done to her in this case.”

b. Discussion

Under section 190.3, factor (a), the trier of fact may consider, in aggravation, evidence relevant to “the circumstances of the crime of which

Further, we have concluded that California’s death penalty statute is not lacking in the procedural safeguards necessary to protect against arbitrary and capricious sentencing under the Eighth and Fourteenth Amendments. Specifically, neither the cruel and unusual punishment clause of the Eighth Amendment, nor the due process clause of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt that aggravating circumstances exist or that aggravating circumstances outweigh mitigating circumstances or that death is the appropriate penalty. (People v. Griffin (2004) 33 Cal.4th 536 , 593-594 [ 15 Cal.Rptr.3d 743 , 93 P.3d 344 ]; People v. Rodriguez (1986) 42 Cal.3d 730 , 777-779 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ].) Indeed, the trial court need not and should not instruct the jury as to any burden of proof or persuasion at the penalty phase. (People v. Carpenter (1997) 15 Cal.4th 312 , 417-418 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ]; People v. Holt (1997) 15 Cal.4th 619 , 682-684 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ]; People v. Hayes (1990) 52 Cal.3d 577 , 643 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ].) The Eighth and Fourteenth Amendments do not require that a jury unanimously find the existence of aggravating factors or that it make written findings regarding aggravating factors. (People v. Griffin, supra, 33 Cal.4th at pp. 593-594; People v. Rodriguez, supra, 42 Cal.3d at pp. 777-779.) There is no requirement under the Eighth or Fourteenth Amendments that a jury find the existence of unadjudicated criminal activity under section 190.3, factor (b), unanimously or beyond a reasonable doubt. (People v. Payton (1992) 3 Cal.4th 1050 , 1068 [ 13 Cal.Rptr.2d 526 , 839 P.2d 1035 ]; People v. Gordon, supra, 50 Cal.3d at p. 1273.) Even if there were such a requirement, defendant would not benefit from it, because no evidence of unadjudicated criminal acts was presented at the penalty phase of his trial. Nor do the United States Supreme Court’s recent decisions interpreting the Sixth Amendment’s guarantee of a jury trial (Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ]; Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556 , 122 S.Ct. 2428 ]; Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ]) compel a different result. (People v. Morrison (2004) 34 Cal.4th 698 , 731 [ 21 Cal.Rptr.3d 682 , 101 P.3d 568 ]; People v. Griffin, supra, 33 Cal.4th at pp. 594—595; People v. Prieto (2003) 30 Cal.4th 226 , 262-265 [ 133 Cal.Rptr.2d 18 , 66 P.3d 1123 ]; People v. Ochoa (2001) 26 Cal.4th 398 , 452-454 [ 110 Cal.Rptr.2d 324 , 28 P.3d 78 ].)

We further have held that intercase proportionality review is not required by the due process, equal protection, fair trial, or cruel and unusual punishment clauses of the federal Constitution. (People v. Anderson (2001) 25 Cal.4th 543 , 602 [ 106 Cal.Rptr.2d 575 , 22 P.3d 347 ].) The use of adjectives such as “extreme” and “substantial” in section 190.3 penalty

Additionally, as defendant acknowledges, we have rejected the notion that in view of the availability of certain procedural safeguards such as intercase proportionality review in noncapital cases, the denial of those same protections in capital cases violates equal protection principles under the Fourteenth Amendment. (See People v. Ramos (1997) 15 Cal.4th 1133 , 1182 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ]; People v. Cox, supra, 53 Cal.3d at p. 691; People v. Allen (1986) 42 Cal.3d 1222 , 1287-1288 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ].) As we have observed, capital case sentencing involves considerations wholly different from those involved in ordinary criminal sentencing. (People v. Danielson (1992) 3 Cal.4th 691 , 719-720 [ 13 Cal.Rptr.2d 1 , 838 P.2d 729 ], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046 , 1069, fn. 13 [ 108 Cal.Rptr.2d 409 , 25 P.3d 618 ].) By parity of reasoning, the availability of procedural protections such as jury unanimity or written factual findings in noncapital cases does not signify that California’s death penalty statute violates equal protection principles.

Defendant finally argues that the use of capital punishment as an assertedly “regular” form of punishment for substantial numbers of crimes, rather than as an extraordinary punishment for extraordinary crimes such as treason, violates international norms of human decency. This in turn, he argues, renders the death penalty as practiced in the United States violative of the “evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles (1958) 356 U.S. 86 , 101 [ 2 L.Ed.2d 630 , 78 S.Ct. 590 ] (plur. opn.)) under the cruel and unusual punishment clause of the Eighth Amendment. We disagree. As the United States Supreme Court recently explained, although international authorities and norms are relevant to the consideration whether a punishment is cruel and unusual under the Eighth Amendment, they are not controlling. (Roper v. Simmons (2005) 543 U.S. 551 [ 161 L.Ed.2d 1 , 125 S.Ct. 1183 , 1198]; see also id. at pp. 603-605 [125 S.Ct. at pp. 1215-1216] (dis. opn. of O’Connor, J.).) Eighth Amendment analysis instead hinges upon whether there is a national consensus in this country against a particular punishment. (Roper v. Simmons, supra, 543 U.S.

Defendant also contends that the death penalty as an assertedly “regular” form of punishment violates the law of nations and is therefore unconstitutional “inasmuch as international law is a part of our law.” Defendant does not demonstrate, however, that the death penalty as applied in California violates international law. To the contrary, “ ‘ [international law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements.’ ” (People v. Brown (2004) 33 Cal.4th 382 , 404 [ 15 Cal.Rptr.3d 624 , 93 P.3d 244 ], quoting People v. Hillhouse (2002) 27 Cal.4th 469 , 511 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ].) Because we find no state or federal constitutional or statutory defect compelling reversal of defendant’s conviction or sentence, this claim must fail.

5. Assertedly excessive appellate delay

Defendant contends that the delay in processing this appeal, particularly the eight years between the time that appellate counsel was appointed in 1991 and the record was certified in 1999, denied him his right to due process of law under the Fourteenth Amendment. In support of a claimed right to a speedy appeal, defendant relies primarily on federal lower court decisions. (Harris v. Champion (10th Cir. 1994) 15 F.3d 1538 , 1558; Burkett v. Fulcomer (3d Cir. 1991) 951 F.2d 1431 , 1445; Coe v. Thurman (9th Cir. 1990) 922 F.2d 528 , 530-531; United States v. Antoine (9th Cir. 1990) 906 F.2d 1379 , 1382; Dozie v. Cady (7th Cir. 1970) 430 F.2d 637 , 638; Snyder v. Kelly (W.D.N.Y. 1991) 769 F.Supp. 108 , 111, affd. Snyder v. Kelly (2d Cir. 1992) 972 F.2d 1328 .) As we have explained in rejecting similar claims: “None of those decisions address the unique demands of appellate representation in capital cases. [1] Neither this court, nor the United States Supreme Court, has extended the Sixth Amendment right to speedy trial to appeals in the manner suggested by defendant. Assuming, but not deciding, that such a right exists, defendant fails to demonstrate that the delay inherent in the procedures by which California recruits, screens, and appoints attorneys to represent capital defendants on appeal, is not necessary to ensure that competent representation is available for indigent capital appellants.” (People v. Holt, supra, 15 Cal.4th at p. 709 [three-year delay in appointment of appellate counsel did not deny due process]; accord, People v. Welch, supra, 20 Cal.4th at pp. 775-776 [nearly three-year delay in appointment of appellate counsel did not deny due process].)

Defendant asserts that Holt and Welch involved delay in the appointment of counsel, whereas his claim addresses primarily the eight-year delay

Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.