People v. Powell

Following the assault, the assailant ransacked the apartment, going through Epperson's closet, drawers, and other property. Paper towels thrown into the toilet had been used to clean a bloody object, possibly a pair of hands.

Yulai Wang, M.D., a deputy medical examiner who performed an autopsy on Epperson, testified about the condition of her body. Dr. Wang concluded that Epperson died from multiple blunt force injuries. Epperson had bruises and abrasions on the back of her arm, hands, and her right leg that Wang characterized as "defensive wounds," presumably suffered as Epperson sought to protect herself. Blows to her head had caused a large laceration on her forehead, with an underlying open skull fracture, and there were multiple lacerations on her forehead, both eyes, nose, cheeks, and upper and lower lips, both inside and outside. The wound to her lower lip went "through and through," and the open skull fracture was "deep in through the inside of her head." She also had a seven-inch gaping skull fracture on the left side that ran from the front to the back of her head and extensive fractures to the front and base of her skull. Her nose and both cheekbones were fractured, and her face had been flattened by fractures of the underlying facial bones. Three separate wounds had been cut into the left side of her neck and head, three-quarters of an inch, one and one-half inch, and two and one-half inches long. A similar wound was on the right side of her

The prosecution also presented evidence of two prior assaults by defendant. A former girlfriend testified that, in 1992, she attempted to end their three-year relationship. Defendant responded that he would kill her. He grabbed her by the throat, dragged her to the ground and down the driveway, and kicked her twice in the head and neck. As he dragged her, he told her, "You're going to die." Neighbors prevented any further injury, but the woman has had lingering neck pain. The second assault victim met defendant in January 1999 and had a few dates with him. Two months after they met, she told him to stay away from her. Soon after, defendant lured her to his apartment, where he blocked the door with a chair and began yelling at her. When she responded, he hit her in the face, knocking her to the ground, climbed on top of her, and choked her into unconsciousness. When she recovered, defendant ordered her at knife-point to take off her clothes, tearing at them in his impatience. Eventually, defendant forced her, still at knife-point, to take him with her while she picked up her children from day care and then to drive him home. Defendant continued harassing the woman with telephone calls until she reported him to the police.

The prosecution also called a detective who had searched Epperson's apartment. The detective stated that he found a broken candle holder in the bathroom and a broken stool and lamp elsewhere. The officer had also seen "a hole to the middle of [Epperson's] head" when he observed the body. The detective later went to Epperson's place of employment and confirmed that the keys found in defendant's possession at the time of his arrest fit the locks on its doors. Finally, the detective described various wounds on defendant's body at the time of his arrest, including cuts and bruising on his hands, a small cut on his forehead, and a one-inch cut on his calf.

B. Sanity Phase Evidence

Following defendant's conviction in the guilt phase, the same jury heard the trial of defendant's insanity defense.

1. Defense evidence

Kyle Boone, Ph.D., a clinical neuropsychologist, administered to defendant a series of "objective" standardized tests designed to detect brain abnormalities. Dr. Boone found defendant's intelligence to be at the low end of the average range. Defendant did "well" on most of the characteristics measured, but his problem solving skills, involving reasoning and logic, were "very low, very impaired." The tests on which defendant performed poorly measured the ability to think creatively to solve problems, evaluate the consequences of behavior, and cease behavior that is not appropriate to a situation. On a test that measured the "ability to inhibit," or to stop behavior that is inappropriate or incorrect, defendant scored in the second percentile, suggesting "that in his daily life he would have a great deal of difficulty stopping a behavior that was not appropriate to the situation."

Dr. Boone concluded that defendant's poor performance on these particular tests demonstrated that the frontal lobes of his brain, which enable problem solving, emotional expression, and empathy, were "not working correctly" due to "brain damage or brain dysfunction." The dysfunction would cause defendant to make bad decisions and lose control of his behavior. Stressful circumstances and alcohol would worsen this effect. According to Dr. Boone, a person who performed like defendant did on the tests "really doesn't have the brain equipment, the hardware, so to speak, to control their behavior. They simply don't have the apparatus to make reasoned decisions about their behavior."

William Vicary, M.D., a psychiatrist, first evaluated defendant in 1993 and 1994, when he was retained by the court to evaluate defendant's mental competence to stand trial. In connection with the present proceedings, Dr. Vicary had interviewed defendant on five or six occasions, for a total of ten hours. Based on that investigation, he concluded defendant suffered from a "major mental disorder," primarily bipolar disorder. Dr. Vicary believed his conclusion was supported by defendant's psychoactive medication schedule. He said that the medications prescribed for defendant, if given to a normal person, would place him or her in "a semi-coma for a period of three days." That

Through the testimony of defendant's mother and two sisters, the defense provided evidence of defendant's difficult family life and history of violence. Both of defendant's parents, Joyce and Joe Powell, came from homes marked by alcohol abuse. Joyce's parents were alcoholics, and her father sexually abused her before she was ten years old. Joe's mother also drank heavily, and he was raised largely in a variety of foster homes. The couple married young.

Defendant's younger sister, Montana, characterized Joe as a "monster." He was emotionally and physically abusive to Joyce and all four children. As Montana said, "If we went to Disneyland or something, he still would find a way to make us feel bad." When defendant was two years old and threw an older boy to the ground, Joe picked defendant up and threw him into a pole. Six months later, defendant began having violent seizures. For seven years, he was given medication to control the seizures. Over the years, defendant's behavior would occasionally trigger other angry responses from Joe, one time causing neighbors to call the police. According to Joyce, similar incidents occurred "every time [Joe] came home and was angry." If Joyce attempted to intervene, Joe turned his anger on her.

The family lived in fear of Joe. Defendant's older brother became so angry with Joe that he once waited with a gun for him to return home, planning to kill Joe. Only his older sister's intervention prevented the confrontation.

Defendant's first suicide threat occurred when he was thirteen years old. Around this time, Joyce said, "he was never actually really happy." His older sister recalled discovering him carrying a gun in a duffel bag, planning to harm either himself or Joe. She talked him out of it.

Defendant's first violent outburst occurred before his eighteenth birthday when, in anger over a girlfriend, he attacked Montana with a lead pipe while she was sleeping. Afterwards, defendant had no memory of the incident. Although Joyce attempted to get him counseling, Joe refused to pay for it. After a bout of drinking when defendant was 22-years old, he became enraged when Joyce told him she had no money to give him, and he threw her across the room, breaking a vertebrae in her back. At some point he also assaulted his older sister when she attempted

In surrebuttal, the defense presented Richard Romanoff, Ph.D., a clinical and forensic psychologist who had met with defendant for thirteen or fourteen hours. Dr. Romanoff believed defendant suffers from a "complex set of mental disorders," beginning with "organic impairment," or abnormal brain function. This was compounded by the dysfunctional family circumstances during his youth, in which his "whole world [was] organized around fear of aggression and seeing people being victims of aggression." Dr. Romanoff agreed with the diagnosis of intermittent explosive disorder and criticized Dr. Mohandie's contrary view as "incomplete."

A. Guilt Phase Claims

1. The Ireland merger doctrine does not bar defendant's convictions for torture-murder and mayhem-murder

The trial court instructed the jury that it could convict defendant of first degree murder either by finding that Epperson's killing was done intentionally with premeditation and deliberation or that it occurred during the commission or attempted commission of, among other charged felonies, mayhem or torture. In People v. Ireland (1969) 70 Cal.2d 522 , 75 Cal.Rptr. 188 , 450 P.2d 580 ( Ireland ), we held that the crime of assault with a deadly

In two subsequent decisions, we extended this doctrine to preclude convictions for first degree felony murder premised on a killing during the course of a burglary when the intended felony underlying the burglary was the assault that led to the homicide. ( People v. Sears (1970) 2 Cal.3d 180 , 188-189, 84 Cal.Rptr. 711 , 465 P.2d 847 ( Sears ); People v. Wilson (1969) 1 Cal.3d 431 , 440, 82 Cal.Rptr. 494 , 462 P.2d 22 ( Wilson ) [precluding application of the felony-murder rule when "the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide"].)

There was substantial evidence of forcible rape here. Defendant's DNA was found in a vaginal swab, and his sperm was found in and outside

The only evidence introduced at the sanity trial of Drew was the testimony of two court-appointed psychiatrists, both of whom opined that defendant was insane under M'Naghten . The prosecution presented no evidence at all. ( Drew , supra , 22 Cal.3d at pp. 338-339, 350, 149 Cal.Rptr. 275 , 583 P.2d 1318 .) In arguing for reversal of the finding of sanity, the defendant relied on the unchallenged unanimity of expert opinion. We explained, however, that a finding of sanity could be upheld even "in the face of contrary unanimous expert opinion." ( Id ., at p. 350, 149 Cal.Rptr. 275 , 583 P.2d 1318 .) Because the defendant has the burden of proof, "if neither party presents credible evidence on that issue the jury must find him sane." ( Id. , at p. 351, 149 Cal.Rptr. 275 , 583 P.2d 1318 .) When no affirmative evidence of sanity has been presented, we held, "the question on appeal is not so much the substantiality of the evidence favoring the jury's finding as whether the evidence contrary to that finding [i.e., the unanimous expert opinions] is of such weight and character that the jury could not reasonably reject it." ( Id. , at p. 351, 149 Cal.Rptr. 275 , 583 P.2d 1318 .) For reasons the decision explained, the value of both experts' evaluations could be questioned, permitting the jury to reasonably reject both. Accordingly, Drew affirmed the finding of sanity. ( Ibid. )

As the foregoing suggests, the Drew standard, focusing the substantial evidence inquiry on the "weight and character" of the expert opinions of

2. The evidence was sufficient to support the jury's finding that defendant was not insane at the time of the killing

Having determined the appropriate substantial evidence test to be applied in these circumstances, we have no difficulty in finding substantial evidence to support the jury's finding that defendant was legally sane at the time he committed the murder. Although one of the prosecution's experts, Dr. Griesemer, found some slowing in defendant's EEG test, he did not believe it indicated organic deficiencies and concluded defendant's functioning was normal. Dr. Mohandie, the prosecution's other expert, believed defendant was feigning at least some of his psychiatric symptoms. He also found no evidence that defendant suffered from bipolar disorder, as testified by the defense experts. In Dr. Mohandie's view, some symptoms of the disorder would have been

C. Penalty Phase Issues

1. The trial court did not err in admitting evidence of defendant's possible gang affiliation and racist beliefs

As noted ante , part A.4, defendant argues that the trial court committed prejudicial error in admitting evidence of his racist tattoos and gang membership. We discuss the admission of gang-related evidence separately for the guilt and penalty phases because they were tried to different juries and the exact nature of the evidence introduced at the two proceedings differed. The penalty phase jury was unaware of, and therefore unaffected by, the tattoo and gang membership evidence introduced in the guilt phase.

Soon after the issuance of Hajek and Vo , our decision in People v. Mendoza (2016) 62 Cal.4th 856 , 198 Cal.Rptr.3d 445 , 365 P.3d 297 ( Mendoza ), re-affirmed its holding. We noted that Hajek and Vo 's "broad holding applies in the present case as well-especially considering that in this case the jury, after a separate trial involving copious testimony from mental health experts, rejected defendant's claim that he was not culpable for the murders on the

The federal Constitution does not require that the jury agree unanimously on which aggravating factors apply. ( People v. Jackson (2016) 1 Cal.5th 269 , 372, 205 Cal.Rptr.3d 386 , 376 P.3d 528 ( Jackson ); People v. Lewis (2008) 43 Cal.4th 415 , 533, 75 Cal.Rptr.3d 588 , 181 P.3d 947 .) Nor is the death penalty unconstitutional for failing to require proof beyond a reasonable doubt that an aggravating circumstance has been proved (other than section 190.3, factor (b) or (c) evidence), that the aggravating factors outweigh the mitigating factors, or that

Large pieces of a plaster flower vase and a hard lamp, both weighing at least ten pounds prior to breaking apart, were strewn about. Portions of each had been used to strike Epperson's head repeatedly. She had also been struck with a wooden

Epperson also suffered injuries suggestive of sexual abuse. She had bruises and abrasions in the back and both sides of her vaginal area, with hemorrhaging under the skin. Dr. Wang concluded these injuries had been caused by "the blunt force penetration either by a penis with a lot of force or other kind of object of similar shape and size." She found the extent of trauma suffered by Epperson to this part of her body to be "very rare[ ]."

Because death causes a loss of blood pressure, Dr. Wang testified, injuries inflicted after death do not cause bruising and bleeding. Accordingly, she concluded that the "majority" of Epperson's injuries, perhaps as much as 95 percent, were inflicted while she was still alive, including the extensive injuries to her vaginal area, face, and neck.

The parties stipulated that DNA analysis identified defendant's blood on Epperson's jeans and panties, her inner thighs, and a washcloth and plastic water bottle found in the sink. In some of these areas,

Testifying in his own defense, defendant confirmed that he met Epperson in June 2000, while he was living at the Weingart Center and working as a tutor in its computer lab. At the time, he was being medicated with Sinequan, a sedative that helps control paranoid feelings, as well as Depakote and Paxil. Without the medications, defendant suffered from paranoid anxiety. Through the end of July, defendant saw Epperson while in the company of Todd, but later Todd "no longer was basically in the picture anymore." Epperson began to call defendant and invite him to visit her. By mid-August, he had a "standing invitation" to go to Epperson's apartment. On Fridays, defendant would escort Epperson from her place of employment to the bank to deposit cash generated at the business, and during a transit strike in September he drove her to and from work. In late September, they began having sexual relations. Around that time, defendant stopped taking his medication, believing the medications made it difficult for him to maintain an erection. Photographs of Epperson's apartment taken by defendant displayed a variety of small gifts he had given her, and he identified a series of furnishings he helped to install.

The defense also presented testimony from an expert witness regarding the biological materials found on the panties lying at Epperson's feet, suggesting they had been worn, if at all, for a short time before being removed.

3. Prosecution rebuttal evidence

Charles Vannoy, who acknowledged knowing defendant "[a] little bit, vaguely" from prison, repeatedly denied remembering the substance of an interview he had with police following Epperson's killing. Over defense objection, the prosecution was permitted to play a redacted videotape of the interview, which occurred three days after the killing and prior to defendant's arrest.

During the interview, Vannoy told police he first met defendant in prison in December 1999, and they became friends. After their release, Vannoy saw defendant at the Weingart Center, and defendant helped him move into an apartment three days before the killing.

Late in the afternoon on the day Epperson was killed, Vannoy told the police, defendant called him and asked to come to Vannoy's apartment. When defendant arrived, he was anxious and did not want to talk about what had happened. Instead, he made phone calls to family members and others. Very early the next morning, defendant told Vannoy he had beat Epperson to death because she had "rejected him" and "was seeing somebody else." Defendant said he had been having sexual relations regularly with Epperson for two weeks to a month prior to her killing. On the day of the killing, a man phoned Epperson shortly after she and defendant finished having intercourse, and she appeared to make plans to see the man. During an ensuing argument, Epperson insisted defendant did not "own" her and that she would see "who I want, when I want." He then followed her into the bathroom, told her to sit on the toilet, and hit her with a candle holder. As defendant was beating her, Epperson asked why he was doing it. He told her, "All I wanted you to do was to love me, you know, and you wouldn't do that." At some point during the beating she asked, "Are you going to kill me, Troy?" and he responded, "Yes, Tammy, I am. I am going to kill you." Defendant told Vannoy he cut both sides of Epperson's neck with glass, hit her on the head with a wooden stool and a big lamp, and

Roger Bertoldi, M.D., a neurophysiologist, testified regarding the occurrence and effect of brain seizures, generically referred to as epilepsy. Some types of epilepsy, in particular temporal lobe epilepsy, can result in a loss of control, leading to acts of violence. A seizure of this type can result in uncontrollable rage. Defendant began suffering seizures before he was three years old. His seizures continued periodically during childhood, leading Dr. Bertoldi to conclude defendant suffered from "true epilepsy," caused by abnormal brain activity. As an adult, Dr. Bertoldi

In Dr. Niedorf's view, defendant met the legal definition of insanity at the time he committed the killing. He neither knew nor understood the nature and quality of his actions at the time he was beating Epperson, existing instead in an altered state of consciousness in which he failed to feel empathy or recognize the significance of his actions. He may have been aware, at the time, of the events occurring, but he was unable to register the emotions associated with the events until later. Nor could defendant distinguish right from wrong because, at the time, the parts of his brain that initiate good behaviors and stop bad

Based on defendant's account of the Epperson killing, Dr. Vicary believed defendant understood the nature and quality of his acts at the time. He did not believe, however, that defendant could distinguish right from wrong. One feature of bipolar disorder is "explosive outbursts," in which the person is "not thinking, ... just acting, and ... there is no rationality, no restraint, there's nothing that can stop the explosion." Although defendant had some understanding of what he was doing, he was unable to stop himself. In Dr. Vicary's view, defendant likely recognized to some degree the wrongfulness of his conduct once he had finished and regained his composure, but during the event he had no grasp of right and wrong.

2. Prosecution evidence

David Griesemer is a clinical neurophysiologist who studies epilepsy and EEG's. Prior to his testimony, he examined defendant and found his functioning normal. According to Dr. Griesemer, defendant had no memory of suffering seizures after childhood, and about half of persons with childhood seizures "outgrow" them. Defendant's childhood EEG was interesting because, although the EEG was abnormal, he was not suffering symptoms, a finding "not inconsistent with some of the benign epilepsies." In reviewing defendant's most recent EEG, Dr. Griesemer found "some subtle abnormal findings," but "they were not epileptic findings." In other words, although Dr. Griesemer acknowledged the slowing in defendant's EEG, he did not believe it indicated a "tendency to have epilepsy." Further, he did not believe it suggested "significant" frontal lobe slowing.

Kris Mohandie, Ph.D., a psychologist, interviewed defendant on three occasions, reviewed his medical and psychiatric records, and administered two "objective" psychological tests. The results of the tests, in particular, suggested to Dr. Mohandie that defendant was faking at least some of his psychiatric symptoms. On both tests, defendant claimed to have more

Joyce viewed such conduct as uncharacteristic, testifying that defendant was a "caring and loving person" who was protective of others. They are very close, and she does not fear him. Defendant's older sister also testified that she was close to him and believed he "had a big heart," despite his anger.

In addition to testimony by defendant's family and friends, both childhood and adult, defendant presented the testimony of the same four psychiatric experts who testified during the sanity phase. Although different in some details, the testimony was materially the same.

3. Prosecution rebuttal case

In rebuttal, the prosecution also presented the testimony of Drs. Griesemer and Mohandie, which was materially the same as their testimony from the sanity phase.

" 'The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state.' [Citation.] 'Under the felony-murder doctrine, when the defendant or an accomplice kills someone during the commission, or attempted commission, of an inherently dangerous felony, the defendant is liable for either first or second degree murder, depending on the felony committed. If the felony is listed in section 189, the murder is of the first degree; if not, the murder is of the second degree.' " ( People v. Bryant (2013) 56 Cal.4th 959 , 965, 157 Cal.Rptr.3d 522 , 301 P.3d 1136 .)

The defendant in Ireland was convicted of second degree murder after he shot his wife in the course of an argument in their home. ( Ireland , supra , 70 Cal.2d at p. 528, 75 Cal.Rptr. 188 , 450 P.2d 580 .) The jury had been instructed that it could convict the defendant of second degree murder if the killing occurred during the commission of a felony inherently dangerous to human life, expressly including assault with a deadly weapon.

The rationale of Farley requires us to reject defendant's argument. Although Farley was concerned with felony murder based on burglary, its rationale applies equally to all of the predicate felonies expressly listed in section 189. Even prior to Farley , we had never applied the merger doctrine to first degree felony murder premised on a predicate crime other than burglary. (See People v. Gonzales (2011) 51 Cal.4th 894 , 942, 126 Cal.Rptr.3d 1 , 253 P.3d 185 ["our preexisting jurisprudence had limited Wilson to cases of burglary felony murder where the defendant's only felonious purpose was to assault or kill the victim"].) We have declined to apply Farley to cases involving convictions for first degree felony murder premised on burglary that were committed prior to the issuance of that decision in order to avoid retroactivity concerns ( People v. Covarrubias (2016) 1 Cal.5th 838 , 882, 207 Cal.Rptr.3d 228 , 378 P.3d 615 ; Farley , supra , 46 Cal.4th at p. 1121, 96 Cal.Rptr.3d 191 , 210 P.3d 361 ), but there is no risk of an ex post facto violation in the circumstances presented here. Because we have never suggested that the merger doctrine applies to murders premised on torture and mayhem, precluding that application on the rationale of Farley does not constitute "an unforeseeable judicial enlargement of a criminal statute." (

2. The evidence was sufficient to support defendant's conviction for torture murder

Defendant contends there was insufficient evidence before the jury to support the torture conviction, the first degree torture-murder conviction, and the special circumstance finding based on that theory.

"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Lindberg (2008) 45 Cal.4th 1 , 27, 82 Cal.Rptr.3d 323 , 190 P.3d 664 ( Lindberg ).) In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ( People v. Kraft (2000) 23 Cal.4th 978 , 1053, 99 Cal.Rptr.2d 1 , 5 P.3d 68 .) The same standard of review applies to the sufficiency of the evidence supporting special circumstance findings. ( People v. Chatman (2006) 38 Cal.4th 344 , 389, 42 Cal.Rptr.3d 621 , 133 P.3d 534 .)

" 'All murder which is perpetrated by means of ... torture ... is murder of the first degree.' (§ 189.) Murder by torture requires (1) an act or acts causing death that involve a high degree of probability of death, (2) a causal relationship between the torturous act and death, (3) a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain on a person for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose, and (4) commission of the act or acts with such intent." ( People v. Edwards (2013) 57 Cal.4th 658 , 715-716, 161 Cal.Rptr.3d 191 , 306 P.3d 1049 ( Edwards ).) The elements of a torture-murder special circumstance (§ 190.2, subd. (a)(18) ) are similar but not identical. "To prove that special circumstance allegation, the prosecution had to establish that 'defendant intended to kill and had a torturous intent, i.e., an intent to cause extreme

In a sufficiency of the evidence challenge to a torture-murder conviction or special circumstance finding, the focus is generally on "defendant's torturous intent." ( Brooks , supra , 3 Cal.5th at p. 65, 219 Cal.Rptr.3d 331 , 396 P.3d 480 .) The perpetrator must intend to " ' "cause pain and suffering in addition to death." ' " (

The testimony and forensic evidence further demonstrated that defendant engaged in far more violence than that necessary to

That is simply not the case here. First, there was substantial evidence from which the jury could reasonably have found that defendant was motivated by revenge, beginning with his acknowledgment that he first struck Epperson because she had terminated their relationship. Second, as discussed above, defendant's infliction of gratuitous injuries in addition to the fatal beating provided

Defendant's argument to the contrary focuses on the fact that Epperson's jeans were found lying on top of her panties, the reverse of what would be expected if defendant had removed her clothing, and the testimony of a defense forensic expert who examined a liner in the panties and concluded it was likely she had not worn them. This evidence, defendant argues, suggests that Epperson was not wearing clothing on her lower body at the time the assault began. Defendant's interpretation of the forensic evidence, however, fails to account for the unusual blood stains on her jeans, which suggest that they were removed after both Epperson and defendant had been bloodied. If she were not wearing jeans at the time of the assault, there would be no explanation for the blood stains in her pockets. It may simply be that Epperson was wearing the jeans without underwear, a circumstance that would also explain how the jeans ended up on top of the panties. Defendant's interpretation also ignores the pattern of blood stains on her thighs and the severe trauma to her genitals. In any event, that Epperson might not have been clothed from the waist down is not inconsistent with a forcible rape.

Although Sims and defendant had lived in the same building during two years of rehabilitation, they had never formally met or spoken. When Sims testified that he felt "intimidated" by defendant because defendant was a "white supremacist," the trial court struck this testimony and admonished the jury to disregard it. Timothy Todd, Epperson's friend and assistant at

Nor do we conclude, for similar reasons, that any misconduct by the prosecutor in eliciting this testimony "infect[ed] the trial with such unfairness as to make the conviction a denial of due process." ( People v. Seumanu (2015) 61 Cal.4th 1293 , 1331, 192 Cal.Rptr.3d 195 , 355 P.3d 384 .)

Defendant argues admission of the evidence was "inherently prejudicial" because it created a risk the jury would improperly infer defendant has a criminal disposition

The jury also found true the mayhem-murder special circumstance allegation, which is specified in Section 192, subdivision (a)(17). Mayhem requires, in very general terms, the intentional infliction of a maiming or disfiguring injury. (See

Before we address defendant's sufficiency of the evidence argument on its merits, it is necessary to settle the standard of review. Defendant's argument, that the jury's sanity determination must be reversed because the expert evidence he presented "was of such weight and quality that a jury could not reasonably reject it," is based on a misreading of People v. Drew (1978) 22 Cal.3d 333 , 149 Cal.Rptr. 275 , 583 P.2d 1318 ( Drew ). In that case, we adopted an alternative to the M'Naghten sanity test, a decision that was subsequently abrogated by the electorate with the 1982 passage of Proposition 8, which re-adopted the M'Naghten test. (See People v. Skinner (1985) 39 Cal.3d 765 , 768-769, 217 Cal.Rptr. 685 , 704 P.2d 752 .) In

Further, although the testimony of defendant's experts provided strong evidence that defendant suffered from mental or emotional disabilities, that is not the same as legal insanity, and their testimony was less clear in demonstrating the elements of insanity. For example, the defense experts were unified in suggesting that defendant was unable to control his conduct as a result of mental defects. Merely because a person finds it difficult or impossible to control his or her behavior, however, does not necessarily mean that the person lacks the ability to understand the nature and quality of that behavior or to distinguish right from wrong. On the latter issues, the defense experts were less unified, and the evidence supporting their conclusions was less compelling.

Defendant's claim of insufficiency of the evidence is based on a detailed comparison of the testimony of his own experts with that of Drs. Griesemer and Mohandie, which, he contends, demonstrates that the prosecution experts failed to account for all of the various factors that were cited by the defense experts. The issue of legal sanity is, of course, a complex and uncertain one about which fully competent experts can reasonably disagree. While their testimony might not have revealed that Drs. Griesemer and Mohandie took into account all of the matters raised by the defense, we are satisfied by their qualifications

The court agreed with the prosecutor and declined to exclude the evidence, explaining, with regard to the tattoos, "This isn't somebody else's opinion that he's a racist. He puts this on himself.... [T]hat this white woman, the victim in the case, was interested in an African-American man, would make a racist very angry." Racial animus, the court believed, might explain the extreme nature of defendant's rage, expressed in the savage beating of Epperson. As the court summarized its thinking, evidence of the tattoos "goes to the motivation and explosive nature of his conduct at the time of the crime."

When called to testify, Charles Vannoy, defendant's friend, confirmed that he had both a swastika tattoo and a lightning bolt tattoo and that lightning bolts are a "sign" of the Aryan Brotherhood. Vannoy, however, denied affiliation with the Aryan Brotherhood. When the prosecutor asked, "Isn't it true that you and [defendant] belong to ...," she was stopped in mid-sentence by an objection, which was sustained. Soon after, the prosecutor noted that defendant told Vannoy that Epperson's ex-boyfriend was an African-American and asked whether Vannoy saw "any significance to saying that the boyfriend was black." Defense counsel objected, and the prosecutor withdrew the question after being persuaded that the detective interviewing Vannoy, rather than defendant, had brought up Sims's race. No admonishment was requested or given.

As in the guilt phase, Timothy Todd, Epperson's friend and assistant, testified that defendant told him, "if [Sims] kept pursuing [Epperson], he would kill [Sims]." An objection was sustained to the prosecutor's follow-up inquiry whether defendant had used a "racial epithet" when he made the threat, but not before Todd confirmed that an epithet had been used. Counsel did not request that the answer be stricken. Todd was thereafter allowed to testify, over objection, that in the year 2000, defendant told Todd he belonged to a "white gang." Although Todd did not recall which gang, he said, "Well, I know there's several white gangs. There's the LRL, Aryan Nations, gangs like that."

Sims testified that while he was together with defendant in a rehabilitation program, Sims did not know defendant well and

When the defense presented the testimony of an African-American friend of defendant, whom he had met at the Weingart Center, the prosecutor asked the witness whether she was aware of defendant's tattoos, without

We agree with the trial court that evidence of defendant's tattoos and racial gang membership was relevant to explain the motivation for and savagery of his attack on Epperson. Wounded racial pride could have caused him not only to assault Epperson, but to do so in a manner intended to cause her both great suffering and disfigurement.

2. Imposition of the death penalty on a mentally ill defendant does not violate the Eighth Amendment

Defendant contends that even if he was not found to be legally insane at the time of the killing, the evidence demonstrates that he was and is mentally ill. He contends that imposition of the death penalty on a mentally ill person violates the Eighth Amendment's prohibition against cruel and unusual punishment.

We considered the identical argument in Hajek and Vo , supra , 58 Cal.4th 1144 , 171 Cal.Rptr.3d 234 , 324 P.3d 88 , concluding that neither the Eighth Amendment nor United States Supreme Court authority precludes imposition of the death penalty

Defendant has presented no argument that was not considered and rejected in

The jury need not make written findings regarding the existence of aggravating factors. ( Mendoza , supra , 62 Cal.4th at p. 916, 198 Cal.Rptr.3d 445 , 365 P.3d 297 ; People v. Clark (2011) 52 Cal.4th 856 , 1007, 131 Cal.Rptr.3d 225 , 261 P.3d 243 .)

There is no Eighth Amendment requirement that our death penalty procedures provide for intercase proportionality review. ( People v. Johnson , supra , 62 Cal.4th at p. 656, 197 Cal.Rptr.3d 461 , 364 P.3d 359 ; People v. Lang (1989) 49 Cal.3d 991 , 1043, 264 Cal.Rptr. 386 , 782 P.2d 627 .)

The jury's reliance on unadjudicated criminal activity as a factor in aggravation under section 190.3, factor (b), without any requirement that the jury unanimously find that the activity was proved beyond a reasonable doubt, does not deprive a defendant of any federal constitutional right, including the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process. ( People v. Clark , supra , 52 Cal.4th at p. 1007, 131 Cal.Rptr.3d 225 , 261 P.3d 243 ; People v. Balderas (1985) 41 Cal.3d 144 , 204-205, 222 Cal.Rptr. 184 , 711 P.2d 480 .)

Epperson's church was located across the street from the Weingart Center, where defendant resided. On the morning of the killing, defendant testified, he saw Epperson standing outside the church, while he was standing outside the Center. As he watched, Sims approached her. She

After some sleep, defendant signed over ownership of his truck to Vannoy and then asked Vannoy to take him to Hollywood. When Vannoy dropped

Saul Niedorf, M.D., is a psychiatrist who often worked with the victims and perpetrators of domestic violence. Based on three interviews with defendant during his incarceration and Dr. Niedorf's review of "a dozen" reports on defendant, he concluded defendant suffers from a mental condition known as "intermittent explosive disorder," which is characterized by destructive or violent actions that occur suddenly and lack a "cutoff." Dr. Niedorf based his diagnosis on a number of factors, including (1) defendant's history of neurological abnormalities from an early age, (2) the continued presence of slow brain waves in his recent EEG, which indicated a "failure of

1. Prosecution case in aggravation

Because the original jury deadlocked during the initial penalty phase, this proceeding was tried to a newly-selected jury. Given the new jury, the prosecution presented essentially the same evidence regarding Epperson's killing that was presented during the guilt phase, including testimony by the same percipient witnesses about the circumstances leading to the killing, the blood spatter, autopsy, and DNA evidence, Charles Vannoy's interview with police about defendant's statements and conduct afterward, and the two prior assault victims.

In addition, the prosecution presented two witnesses familiar with Epperson's life prior to meeting defendant. Bette Ruiz de Esparza is the mother of Paul Grano, who was married to Epperson. She testified that Epperson's mother, apparently an alcoholic, abandoned her when Epperson was a teenager. Ruiz de Esparza and her son took Epperson in, looked after her, and treated her like family. Grano, eight years older than Epperson, eventually married her, and they had a child together. Both Grano and Epperson struggled with drug abuse, and Epperson was in and out of treatment and jail for a significant period. In the year or two before her death, however, Epperson "sounded real positive, and her life was going good." Although Epperson and Grano had separated at some earlier time, "they were getting back together" at the time of her death. During the separation, they had remained good friends, and Grano was "broken-hearted" by her death.

Ruth Steward was a lay minister at Epperson's Church, which was located on "skid row," across the street from Weingart Center. She had known Epperson for about a year prior to her death and was proud of Epperson's

Our most recent decision addressing the evidence necessary to support a torture-murder conviction is Brooks , in which we affirmed both a torture-murder conviction and special circumstance finding. The defendant in Brooks developed a jealous, possessive attitude toward the victim, with whom he was having a romantic affair. ( Brooks , supra , 3 Cal.5th at pp. 17, 66, 219 Cal.Rptr.3d 331 , 396 P.3d 480 .) He came to believe she was having a sexual relationship with another man and began spying on her. One day after she left that man's home, the defendant confronted her, strangled her into unconsciousness, placed her in her car, and, aware that she was still alive, set her and the car on fire. ( Id ., at p. 66, 219 Cal.Rptr.3d 331 , 396 P.3d 480 .) We concluded that "a reasonable jury could infer from evidence of defendant's intense possessiveness and all-consuming suspicions ..., coupled with his dousing her and her car with accelerant and lighting them on fire, that defendant intended to inflict severe pain on [the victim] for the purpose of revenge." ( Id ., at pp. 66-67, 219 Cal.Rptr.3d 331 , 396 P.3d 480 .)

In this case, the jury could have concluded that defendant became similarly obsessed with Epperson, thereby satisfying the "purpose" element of torture

During the cross-examination of defendant, he acknowledged, without explanation, that he "had a problem" with Sims because of "what he did to" Epperson. When defendant denied being a "racist" and disliking Sims because he was an African-American, the prosecutor was permitted to introduce, over objection, photographs of defendant's tattoos, two of which read, "White Pride" and "White Anger." Defendant said he had gotten the tattoos "years ago" in prison.

During the prosecution's rebuttal case, the trial court permitted the introduction of gang-related statements made by defendant's friend, Charles Vannoy, during his police interview. The jury therefore heard Vannoy describe himself as a one-time member of the Aryan Brotherhood, although he had since left the group. Vannoy acknowledged having tattoos, one of which was a swastika, and said he was aware defendant did not like Sims, whom the interviewer had referred to as Epperson's "Black boyfriend." In closing argument, neither attorney mentioned the tattoos or gang evidence.

We review a trial court's decision to admit or exclude evidence "for abuse of discretion, and [the ruling] will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice." ( People v. Wall (2017) 3 Cal.5th 1048 , 1069, 224 Cal.Rptr.3d 861 , 404 P.3d 1209 .) When evidence is erroneously admitted, we do not reverse a conviction unless it is reasonably probable that a result more favorable to the defendant would have occurred absent the error. ( People v. Watson (1956) 46 Cal.2d 818 , 836, 299 P.2d 243 ; see People v. Covarrubias (2016) 1 Cal.5th 838 , 887-888, 207 Cal.Rptr.3d 228 , 378 P.3d 615 ( Covarrubias ) [ Watson standard applies in evaluating prejudice from state law error in admitting evidence].) We apply a similar standard of prejudice when considering a claim of prosecutorial misconduct. (E.g., People v. Peoples (2016) 62 Cal.4th 718 , 798-799, 804, 198 Cal.Rptr.3d 365 , 365 P.3d 230 .)

Defendant argues that the jury's torture-murder and mayhem-murder special-circumstance findings were not supported by sufficient evidence because he had no "independent felonious purpose" in committing the predicate crimes. (

In a sanity trial, the burden is on the defendant to prove insanity by a preponderance of the evidence. (§ 25, subd. (b); People v. Hernandez (2000) 22 Cal.4th 512 , 521, 93 Cal.Rptr.2d 509 , 994 P.2d 354 .) A defendant "may suffer from a diagnosable mental illness without being legally insane under the M'Naghten standard." ( People v. Mills (2012) 55 Cal.4th 663 , 672, 147 Cal.Rptr.3d 833 , 286 P.3d 754 .)

Here, the evidentiary record is considerably more complex, consisting of the testimony of several expert witnesses for each side. We have been provided with no justification for departing, in these circumstances, from the most common formulation

In closing argument, the prosecutor never raised the possibility that Epperson's killing was related to Sims or his race.

As the foregoing indicates, the evidence of defendant's alleged gang membership admitted during the penalty phase was limited. Vannoy testified about his tattoos and denied gang membership, but he was prevented from testifying about defendant's gang membership. Todd testified that defendant claimed to have belonged to a white gang and had used a racial epithet in speaking about Sims. Sims confirmed that he felt threatened by defendant, without expressly attributing his discomfort to perceived racism. Two African-American witnesses acknowledged an awareness of defendant's tattoos, but neither described them; only the fact that the topic arose during the testimony of African-American witnesses hinted at their content. When the prosecutor eventually attempted to suggest to defendant's mother that the tattoos related to racist sympathies, his mother denied it. And, as noted, none of this featured in the prosecutor's closing argument.

Evidence of a defendant's racist beliefs is inadmissible in the penalty phase of a capital trial if it is not relevant to an issue in the case. ( Dawson v. Delaware (1992) 503 U.S. 159 , 167, 112 S.Ct. 1093 , 117 L.Ed.2d 309 ; People v. Merriman (2014) 60 Cal.4th 1 , 104, 177 Cal.Rptr.3d 1 , 332 P.3d 1187 ( Merriman ).) When evidence suggesting racist beliefs by a defendant is probative of an issue raised by the proceedings, however, we have affirmed its admission, notwithstanding any risk of prejudice. (See, e.g., People v. Townsel (2016) 63 Cal.4th 25 , 66-67, 201 Cal.Rptr.3d 19 , 368 P.3d 569 [evidence of a racial slur used in the course of making a threat held admissible when the threat was relevant to the killing];

A crime involving the degree of violence demonstrated here is in some manner incomprehensible and inexplicable. In attempting to affix the appropriate penalty, the jury was entitled to hear evidence bearing on the factors that possibly brought on the violence, whether, in the defense's view,

3. Defendant's various constitutional challenges to California's imposition of the death penalty fail

Defendant raises a series of challenges to California's death penalty statute. As he acknowledges, these arguments have been rejected by this court in past decisions. As he anticipates, we decline to revisit our prior holdings with respect to these issues, which are listed below. Given the longstanding nature of our rulings, we do not reiterate their rationale.

California's death penalty laws adequately narrow the class of murderers subject to the death penalty. ( People v. Henriquez (2017) 4 Cal.5th 1 , 45, 226 Cal.Rptr.3d 69 , 406 P.3d 748 ( Henriquez ).) In particular, the special circumstances of section 190.2, which render a murderer eligible for the death penalty, are not so numerous and broadly interpreted that they fail adequately to narrow the class of persons eligible for death. ( People v. Johnson (2016) 62 Cal.4th 600 , 654-655, 197 Cal.Rptr.3d 461 , 364 P.3d 359 ; People v. Myles (2012) 53 Cal.4th 1181 , 1224-1225, 139 Cal.Rptr.3d 786 , 274 P.3d 413 .)

Section 190.3, factor (a), which permits the jury to consider the circumstances of the capital crime in its penalty