1

Filed 8/26/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S089478

v. )

) Orange County

HUNG THANH MAI, ) Super. Ct. No. 96NF 1961

)

Defendant and Appellant. )

____________________________________)

Defendant Hung Thanh Mai was convicted by the court, as charged, of the 

first degree murder of Don Joseph Burt (Pen. Code, §§ 187, 189).1 The court 

further found true, as a special circumstance, the allegation that the killing was 

intentional, and that defendant knew or should have known the victim was a peace 

officer engaged in the performance of duty. (§ 190.2, subd. (a)(7) (section 

190.2(a)(7).) A penalty jury returned a death verdict. The automatic motion for 

modification of the verdict (§ 190.4, subd. (e)) was denied, and defendant was 

sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); 

Pen. Code, § 1239, subd. (b).) We will affirm the judgment in its entirety.

 

1 All further unlabeled statutory references are to the Penal Code.
2

FACTS

A. Guilt and special circumstance evidence.

As to the criminal charge of first degree murder and the peace officer 

special circumstance allegation, defendant waived his jury trial, self-incrimination, 

and confrontation rights, and stipulated that the court would determine those issues 

from the preliminary hearing transcript. That transcript included the following 

evidence.

About 8:30 p.m. on July 13, 1996, Bernice Sarthou pulled into the Pepe‘s 

Mexican Restaurant on North Placentia Avenue just south of its intersection with 

Nutwood Avenue in Fullerton. The sun was still up, so she was wearing her 

prescription sunglasses. She left her car and entered the restaurant, but saw it was 

full, so she returned to her car and got into the drive-through line. As she did so, 

she saw a patrol car, with its lights flashing, stopped behind a white BMW. A 

young Vietnamese male was sitting in the driver‘s seat of the BMW, and a 

uniformed officer was sitting in the patrol car. When Sarthou looked at the 

BMW‘s driver, he leaned forward, gripped his steering wheel, and gave her a 

―hard stare.‖

As the drive-through line moved forward, Sarthou lost sight of the two cars 

she had seen. She ordered her dinner, received it, and pulled into a parking area to 

eat. By this time, she had removed her sunglasses and put on her regular glasses, 

though there was still some sun. From her parking place, the front of the BMW 

was again in view, at a distance of 35 to 40 feet. She saw the officer lean into the 

driver‘s window of the BMW. When she looked up again, the officer and the 

BMW driver were standing outside that car. They seemed to be struggling for 

possession of something. Almost immediately, she heard five shots, and the 

officer fell. The BMW driver then walked up to the officer and shot him in the 
3

head. After doing so, defendant got into the officer‘s car and drove away. At the 

preliminary hearing, Sarthou positively identified defendant as the man who shot 

the officer.

Around 9:30 p.m. that evening, Douglas Kennedy, a Fullerton Police 

Department homicide detective, was advised of the shooting of a California 

Highway Patrol (CHP) officer at 2950 Nutwood Avenue in Fullerton. He 

responded to the scene. There he found a white 1995 BMW 525i sedan. No CHP 

patrol vehicle was present. Adjacent to the BMW were shell casings, a 

considerable amount of blood, and various personal items.2 The latter included a 

police officer‘s ―Sam Brown‖ belt with holster attached, a handcuff case, a pager 

in a leather holder, an ammunition pouch, and a BMW car key. A wallet 

containing identification with defendant‘s name and picture was found on the front 

floorboard of the BMW.

Officer Burt‘s citation book was also nearby. This indicated he had begun 

to write a ticket for a suspended driver‘s license in the name of Phu Duc Nguyen, 

but the ticket had not been signed by the person being cited. There was a bloody 

shoeprint on the citation book. Also on the ground, near the rear of the BMW, 

was a ―CHP 180 form,‖ which an officer fills out before impounding a vehicle. 

The information on the form was for the 1995 BMW. At the front of the vehicle, 

traveler‘s checks in a paper bag were discovered.

Later that night, Officer Burt‘s patrol car was found abandoned in the 

driveway of a Ford dealership located at the corner of South Loara Street and West 

Lincoln Avenue in Anaheim. Defendant lived close to the dealership, at 1780 

West Lincoln Avenue. A witness saw an Asian male run from the dealership that 

 

2 The victim‘s body had been removed from the scene by the time Detective 

Kennedy arrived.
4

evening, jump over the bumper of a parked Honda, and proceed in the direction of 

defendant‘s residence. A shoeprint was recovered from the Honda‘s bumper.

Officer Burt died from multiple gunshot wounds. There were entry wounds 

behind his left ear, in his upper right arm, in the back of his left thigh, behind his 

left ankle, just above his right buttocks, and in his left buttocks. The arm wound 

caused the humerus bone in his right arm to fracture. The fatal bullets were the 

one that entered behind his left ear and exited through his right eye, and those that 

entered his buttocks and traveled upward through his torso into his intestines, 

stomach, and lungs. Gunpowder residue on the entry wound behind the victim‘s 

ear indicated this bullet had been fired at very close range.

Chang ―Alex‖ Nguyen testified that at the time of Officer Burt‘s murder, 

Nguyen and defendant were engaged in an ongoing criminal enterprise whereby 

Nguyen purchased from defendant, on a weekly basis, large quantities of forged 

traveler‘s and payroll checks. On the evening of July 13, 1996, defendant 

telephoned Nguyen in Houston, Texas, where Nguyen lived. Defendant said he 

was in ―  ̳deep shit‘ ‖ because he had ―  ̳just [taken] down a California Highway 

Patrolman,‘ ‖ and he needed a place to ―  ̳lay low.‘ ‖ The next night, defendant 

flew to Dallas, where Nguyen picked him up at the airport.

During the drive from Dallas to Houston, defendant recounted that on the 

evening of July 13, he was pulled over by a CHP officer because his lights were 

off, though defendant thought they were on. Defendant believed he had an 

outstanding warrant, so he did not present his own driver‘s license to the officer, 

and instead ―used somebody else‘s name‖ when identifying himself. That name 

―[came] back as [a] suspended . . . license.‖ The officer removed defendant from 

his car and told defendant he would have to tow it. At this point, defendant had a 

―gut feeling something was going to go wrong.‖ He suggested the officer just give 

him a ticket, tow the car, and tell him where to pick it up. The officer responded 
5

―[f]ine,‖ but said he had to check the trunk and do an inventory. Defendant then 

knew ―something [was] going to happen‖ because he had ―stuff‖ in the car.3

Defendant told Nguyen that the officer then opened the trunk, pulled out a 

bag, opened it, looked inside, and immediately advised defendant he was under 

arrest. Defendant already had two ―strikes‖ against him, was afraid a third 

conviction would lead to life imprisonment, and wanted to leave no witnesses. So 

he drew his gun and shot the officer three times. The officer fell, but was still 

―twitching.‖ Defendant did not want the officer to suffer, and wanted to make 

sure he left no witnesses, so he shot the officer four more times. Defendant then 

looked for his own car keys, but could not find them, so he took the officer‘s gun, 

got into the patrol car, and drove away. Defendant abandoned that vehicle 

―somewhere‖ and paid a ―Mexican guy‖ $100 for a ride to a friend‘s house.

Shortly after arriving at Nguyen‘s Houston apartment, defendant said he 

needed to shop for new clothes, particularly new shoes, because he had gotten 

blood on his shoes and had not been able to clean it all off. Nguyen noticed a dark 

spot on the sneakers defendant was wearing.

On the way to a shopping mall after his arrival in Houston, defendant made 

a cell phone call, apparently to a friend, and asked whether the person called had 

taken care of ―  ̳that package I left for you.‘ ‖ The other person said something, 

and defendant then declared, ―  ̳Well, you better because it‘s very important.‘ ‖ 

After hanging up, defendant told Nguyen he had ―  ̳something . . . important I need 

to have my friend get rid of,‘ ‖ and wanted to ―  ̳make sure it‘s been done right.‘ ‖

Two or three days after defendant‘s arrival in Houston, Nguyen and his 

lawyer contacted the Federal Bureau of Investigation (FBI), met with an agent, 

 

3 Nguyen said he and defendant used the word ―stuff‖ when discussing the 

forged checks Nguyen was buying from defendant. 
6

and told the agent of defendant‘s confession and location. Defendant was arrested 

in Nguyen‘s Houston apartment by FBI agents and local law enforcement officers.

When arrested, defendant was not wearing shoes, but a pair of Kmart tennis 

shoes were found beneath the sofa on which he had been sleeping. A substance 

resembling dried blood was observed on these shoes. At the preliminary hearing, 

Nguyen identified these shoes from photographs as the ones defendant was 

wearing, and wanted to replace, when he arrived from California. The sole pattern 

on these shoes was consistent with the bloody shoe print on Officer Burt‘s citation 

book. A comparison between these shoes and the shoe print left on the bumper of 

the Honda yielded a ―positive match.‖

Victoria Pham, defendant‘s girlfriend, testified she had assisted him in 

leasing a white BMW. She saw him in the car between 5:00 p.m. and 6:00 p.m. on 

July 13, 1996. The next day, he telephoned her and told her ―something [had] 

happened‖ to the BMW, and it was hers.

No defense evidence was presented at the preliminary hearing.

B. Prosecution’s penalty phase evidence.

A jury was sworn to determine the issue of penalty. As a factor in 

aggravation, the prosecution presented extensive evidence about the factual 

circumstances of Officer Burt‘s murder, and about its impact on surviving victims. 

(§ 190.3, factor (a).) Also presented in aggravation was evidence of other crimes 

by defendant involving violence or the threat of violence. (Id., factor (b).) 

Finally, the prosecution introduced evidence that defendant had sustained several 

prior felony convictions. (Id., factor (c).)
7

1. Facts of the capital crime.

The evidence on this subject was consistent with the prosecution‘s showing 

at the preliminary hearing, but included several additional witnesses and certain 

additional details.

Fullerton Reserve Police Officer Michael Lyman testified that between 

8:00 p.m. and 8:20 p.m. on July 13, 1996, he was driving through the intersection 

of Nutwood and Placentia Avenues when he noticed a CHP car, with its lights 

flashing, parked behind a white BMW. The CHP officer, who was writing the 

BMW driver a ticket, gave Lyman a ―Code 4‖ signal, meaning everything was all 

right and no assistance was needed. Though Lyman first tentatively identified 

another man as the BMW‘s driver, he later positively identified defendant from a 

photo lineup.

Around 8:30 p.m. on July 13, 1996, Benjamin Baldauf was preparing to 

enter and register at a hotel near the intersection of Placentia and Nutwood. He 

noticed a CHP vehicle making a traffic stop of a white BMW. Baldauf described 

the lighting at this time as ―long on shadows, just before dark.‖ As Baldauf 

entered the hotel, the CHP officer appeared to be examining the trunk of the 

BMW.

After registering at the hotel, Baldauf and his daughter walked toward the 

Pepe‘s Restaurant on Placentia. The officer was still sorting through the BMW‘s 

trunk, but seemed relaxed. However, the BMW driver appeared nervous; his eyes 

were ―darting . . . wildly.‖ This bothered Baldauf, so he looked back toward the 

stopped vehicles as he proceeded on toward the restaurant. Baldauf saw the 

officer approach the driver‘s door of the BMW, at which point ―[t]he [BMW] 

driver came out shooting.‖ Baldauf counted at least five shots in rapid succession. 

The BMW driver and the officer struggled and fell together; the shooter appeared 

to take something from the officer, then stood up and shot him in the neck or head 
8

at close range. Baldauf remembered seeing some traveler‘s checks on the ground 

near the officer, which ―didn‘t make sense.‖ In court, Baldauf positively 

identified defendant as the shooter.

Bernice Sarthou testified, consistently with her preliminary hearing 

account, as follows: Around 8:30 p.m. on July 13, 1996, as she pulled into the 

Pepe‘s Restaurant on Placentia, she noticed a CHP vehicle, with its lights flashing, 

parked behind a white BMW. As she waited in the restaurant‘s drive-through line, 

she stared absently at the BMW‘s driver. He leaned forward and gave her a ―hard 

look,‖ even though she was wearing sunglasses that would have prevented the 

driver from seeing if she was looking at him. After ordering and receiving her 

food, she parked where she could see the front half of the BMW. When she 

looked up, the BMW driver was out of his car and the CHP officer was close to 

the driver, near the driver‘s door of the BMW. Sarthou heard four rapid shots, and 

the officer fell. The BMW driver started to walk away, but returned and shot the 

officer in the head. The shooter then ran out of Sarthou‘s view, but moments later, 

she saw the CHP car leaving. Sarthou positively identified defendant as the driver 

of the BMW and the shooter of Officer Burt.

Around 8:15 p.m. on July 13, 1996, Robert Excell was traveling 

southbound on Placentia. While stopped for a red light at the intersection with 

Nutwood, he heard multiple gunshots. He turned right onto Nutwood, looked to 

his left, and saw a police car with its overhead lights on. Excell continued west on 

Nutwood, intending to pass under the State Route 57 freeway, then turn left to 

enter the southbound freeway on-ramp. As he proceeded, he saw a CHP car come 

up behind a vehicle in the adjacent lane. The CHP car‘s overhead lights were 

flashing, and defendant was driving it. Defendant veered into the far right lane, 

honked as if to move a vehicle in that lane out of the way, then swerved left across 

two lanes in front of Excell to turn onto the freeway on-ramp. Excell followed the 
9

CHP vehicle onto the freeway and pursued it southward as it wove through traffic, 

at speeds of 80 to 85 miles per hour, until he lost sight of it near the Lincoln 

Avenue exit.

Around 8:30 p.m. on July 13, 1996, Paul Wilcox, a CHP dispatcher, 

received an inquiry from Officer Burt concerning the status of a driver‘s license 

issued to Pao or Pho D. Nguyen, born May 12, 1972. The dispatcher advised that 

the license in that name was currently suspended, whereupon Officer Burt 

requested a tow truck to respond to the Chevron station at Nutwood and Placentia.

Evidence collected at the crime scene included seven 9-millimeter shell 

casings, a live 9-millimeter round in the front seat of the BMW, a citation book 

with a bloody shoe print on it; a ―CHP 180‖ vehicle property form; a paper bag 

filled with counterfeit traveler‘s checks; a printer, printer cartridges, and bulk 

quantities of high-quality bond paper found in the BMW‘s trunk; a wallet 

containing defendant‘s identification; and a BMW car key. Fingerprints on the 

bag and on a piece of paper were identified as defendant‘s.

Evidence, similar to that at the preliminary hearing, was presented that 

Officer Burt‘s vehicle was found abandoned near defendant‘s Lincoln Avenue 

residence; that around 10:00 p.m. on July 13, 1996, a witness saw a young Asian 

male hop over the bumper of a Honda as he ran from the area where the car was 

abandoned; and that a partial shoe print was lifted from the Honda‘s bumper.

When arrested in Texas, defendant was sitting on a couch. He identified 

white tennis shoes near the couch as his. These shoes were turned over to the 

Fullerton Police Department. The patterns of the soles were consistent with the 

bloody shoe print on Officer Burt‘s citation book, and were a positive match with 

the shoe print on the Honda bumper. Testing of blood on the shoes revealed DNA 

markers identical to those in a tissue sample taken from Officer Burt. The chance 
10

that three particular markers common to both these samples would be found in 

each of two random individuals was one in six billion.

A United States Treasury Department agent testified that the 99 goodquality counterfeit traveler‘s checks found in the paper bag at the crime scene 

were worth about $10,000. These checks belonged to a larger series of alreadypassed counterfeit checks that had caused losses of over $240,000. The quantity 

and quality of the checks in the bag, and the paraphernalia —such as the bond 

paper, printer, and printer cartridges — found in the BMW‘s trunk, indicated that 

someone was mass producing the counterfeit instruments, or selling them in bulk.

Officer Burt suffered 11 gunshot wounds inflicted by seven bullets. There 

were no defensive wounds or signs of a struggle. He died of multiple gunshot 

injuries to his brain, lungs, and visceral organs.

2. Victim impact.

Officer Burt‘s wife, mother, and father testified about the devastating effect 

of his death on his immediate and extended family. The victim, who was 25 years 

old when he died, had dreamed of being a CHP officer like his father. As a result 

of Officer Burt‘s death, his father, a CHP sergeant, retired approximately one year 

later. Officer Burt‘s wife, described as his ―best friend,‖ was seven months 

pregnant with their first child at the time of his death. Family members described 

the victim as spontaneous, intelligent, sentimental, and fun-loving. The loss was 

especially hard for his niece and two nephews, because their father had been killed 

in an auto accident about nine months earlier.

3. Other violent crimes.

The prosecution presented the following evidence of other crimes by 

defendant involving violence or the threat of violence:
11

Mark Baker lived in a second-story apartment next to the unit defendant 

shared with his girlfriend, Victoria Pham. In the early morning of September 11, 

1995, Baker heard scuffling in defendant‘s apartment. Baker went out onto the 

common balcony walkway, where defendant was struggling with Pham, 

apparently trying to push her over the railing. Defendant hit Pham on the back of 

the head or neck with his fist, and she fell to her knees. When Baker said, 

―  ̳Knock it off, you motherfucker,‘ ‖ defendant went back into his apartment and 

returned with a machine gun. Defendant loaded the gun in front of Baker, pulled 

back the bolt, and pointed the weapon at Baker‘s head. Defendant said, ―  ̳I think 

you called me a motherfucker‘ ‖ and ―  ̳[l]et me hear you say it again.‘ ‖ Baker 

asked if the gun was real, and defendant responded, ―  ̳You want to find out?‘ ‖ 

The confrontation ended when the manager of the apartment complex yelled at 

everyone to go back inside their apartments. Defendant reentered his unit, and 

Baker went to make sure the manager called the police.

On the evening of June 17, 1996, Robert Bachand, a Honda automobile 

salesman, accompanied defendant and another Asian man on a vehicle test drive. 

During the drive, defendant said ―  ̳[l]et‘s do this‘ ‖ to his companion. Defendant 

then pulled a nine-millimeter Ruger semi-automatic pistol on Bachand and 

demanded his wallet and PIN number. Bachand gave up his wallet, which 

contained his ATM card. He was handcuffed and forced to lie on the back seat. 

Defendant said he and his companion intended to take the car, and both men 

seemed upset when Bachand told them he didn‘t know whether it had Lojack (a 

means of tracking a stolen vehicle). At some point, defendant handed a cell phone 

to Bachand, and a voice on the phone told Bachand ―  ̳not to fuck with my guys or 

they will kill you.‘ ‖ Bachand gave his PIN number to the person on the phone. 

Defendant warned Bachand that ―  ̳[y]ou don‘t know who you‘re messing with‘ ‖ 

and ―  ̳[w]e‘re Asian, Vietnamese Mafia.‘ ‖
12

The men took Bachand to a house in Garden Grove or Westminster, where 

defendant‘s companion got out of the car, and another Asian man got in. 

Defendant handed this man the gun he had been wielding. During further travel, 

the cell phone rang again. A voice on the phone demanded verification of the PIN 

number Bachand had previously provided, complaining that ―  ̳they‘ ‖ were unable 

to get any money out of the account. Bachand explained this was because the 

account had no money. After debating whether to kill Bachand or release him, the 

men let him go. Later that evening, Bachand identified a crashed Honda as the 

one in which he had been abducted.

On the morning of July 13, 1996, the day Officer Burt was killed, Aryan 

Neghat was driving westbound in the fast lane of the State Route 91 freeway. 

A white BMW came up behind him and began following too closely, so Neghat 

moved to lane No. 2 to avoid contact with that vehicle. The BMW, traveling 

around 70 miles per hour, then pulled very close to another vehicle in the fast lane, 

slightly bumping it. The BMW driver reached down, transferred a gun from his 

right to his left hand, and waved the gun out the driver‘s window. The car in front 

quickly changed lanes, whereupon the BMW driver pulled in the gun and sped 

onward. That night, while watching news of Officer Burt‘s murder, Neghat 

recognized the white BMW at the crime scene as similar to the one he had 

encountered. In July 1996, Neghat positively identified defendant from a photo 

lineup as the weapon-brandishing driver he had observed, though he was unable to 

make a positive identification at the April 2000 penalty trial.

4. Prior felony convictions.

The prosecution presented evidence that defendant had suffered prior 

felony convictions (1) in 1992, for escape while misdemeanor charges were 

pending (§ 4532, subd. (a)); (2) in 1992, for possession of an assault weapon 
13

(former § 12280, subd. (b); see now § 30605, subd. (a)) and possession of a

firearm in violation of an express probation condition (former § 12021, 

subd. (d)(1); see now § 29815, subd. (a)); and (3) in 1993, for assault with a 

deadly weapon (§ 245, subd. (a)(1)) and burglary of an inhabited dwelling 

(§§ 459, 460, subd. (a)).

C. Defense penalty case.

Defendant himself was the only defense witness. He testified in narrative 

form as follows: ―Thank you. [¶] Before I start, I would like to say that I did 

request for my lawyers not to say anything on my behalf, and I appreciate that. 

[¶] Jurors, I am not here to ask or beg for your sympathy or pity. Nor am I here to 

ask or beg of you, the jurors, to spare my life. [¶] Personally I believe in an eye 

for an eye. I believe in two eyes for every eye. If you were to take down one of 

my fellows, I would do everything that is necessary to take down at least two of 

yours, just to be even. [¶] In this penalty phase trial, the prosecutor, Mr. Jacobs, 

is seeking the maximum penalty, which we all know is death. I personally feel 

that the maximum penalty is properly suited for this occasion. I also feel that it is 

the right thing for you, the jurors, to do. [¶] Being in my situation now I feel it is 

only fair, there‘s a price to pay for everything in life, now that I am here it‘s time

I pay that price. Because, after all this entire ordeal, it is just part of the game. 

[¶] That‘s all I have to say, your honor.‖ The prosecutor did not cross-examine 

defendant, and the defense presented no other evidence. No rebuttal case was 

offered.

DISCUSSION

A. Counsel-related claims: conflict of interest; ineffective assistance.

Defendant asserts that, at both the guilt and penalty stages, his counsel 

labored under a potential and actual conflict of interest, and that counsel‘s 
14

performance was adversely affected by the conflict, in violation of his state and 

federal constitutional rights to conflict-free representation. Defendant further 

insists he did not validly enter a voluntary, knowing, and intelligent waiver of the 

conflict. In any event, defendant asserts, the record demonstrates that, in certain 

respects, counsel provided him with constitutionally ineffective assistance. No 

basis for reversal appears.

1. Factual background — conflict of interest claim.

The factual background of defendant‘s conflict of interest claim, 

unfortunately complex, is as follows: Defendant was represented at the 1996 

preliminary hearing by retained Attorney Dennis O‘Connell. In subsequent 

proceedings, O‘Connell and another lawyer, George Peters, were appointed to 

represent defendant. Daniel Watkins was an investigator originally hired by 

O‘Connell, and later retained by both counsel, to work on defendant‘s case.

On July 27, 1998, while defendant was the Orange County Jail awaiting 

trial in this case, he, Victoria Pham, Watkins, and another ―gang member‖ were 

arrested by federal authorities. Soon thereafter, an indictment was filed in the 

United States District Court for the Central District of California against 

defendant, Pham, Huy Ngoc Ha, and Watkins. (United States v. Hung Thanh Mai, 

et al.( C.D.Cal., No. SA CR 98-82 LHM) indictment filed Aug. 6, 1998.) Count 1 

accused the indicted persons of conspiring by mail and/or interstate travel to 

commit murder for hire, in violation of title 18 United States Code section 1958. 

The alleged murder target was Chang ―Alex‖ Nguyen, a principal prosecution 

witness as to the state capital murder charges, whom defendant wanted killed 

because of his cooperation with law enforcement.4

 

4 This is the same Chang Nguyen who testified against defendant at his 

preliminary hearing in the instant case. The federal indictment explained that 

(Footnote continued on next page.)
15

Among other things, the federal indictment asserted that, in furtherance of 

the conspiracy, Watkins ―traveled to Houston, Texas to locate Nguyen and his 

family, and that Watkins ―provided . . . [defendant] and PHAM with information 

about . . . Nguyen so that Nguyen could be located and killed.‖ The federal 

indictment also alleged that after the authorities provided defendant with fake 

evidence the murder had been carried out, defendant asked Watkins to see if a 

missing persons report had been filed in Houston for Nguyen, but Watkins warned 

that any such check might arouse law enforcement suspicions. According to the 

federal indictment, these events took place in March, April, and May of 1998.

On July 31, 1998, before the federal indictment was filed, and in 

anticipation of an upcoming federal bail and counsel hearing for Watkins, 

Attorney James Waltz, who would become Watkins‘s appointed federal counsel, 

faxed a memorandum to the federal prosecutor‘s office (the Waltz memo). The 

Waltz memo claimed the federal case against Watkins was ―phony,‖ and asserted 

that Waltz intended to call Peters and O‘Connell, defendant‘s counsel in this case, 

as ―cornerstone‖ witnesses in Watkins‘s defense. According to the Waltz memo, 

Watkins, while acting as Peters‘s investigator, and on Peters‘ behalf, ―interacted 

with [defendant]. [Defendant] told [Watkins] about [defendant‘s] plan to kill 

[Nguyen] in Texas, and [Watkins] reported all that to . . . Peters, [O‘Connell,] and 

Rob Harley, and took their directions.‖ The memo also suggested Peters and 

O‘Connell ―should be disqualified from further representing [defendant] in state 

court, as their testimony in Federal court will be adverse to [defendant] . . . as they 

 

(Footnote continued from previous page.)

defendant, then housed in the Orange County Jail, ―hired a person he believed was 

willing to murder Nguyen in exchange for money. However, the person 

[defendant] hired to commit the murder was an undercover officer . . . .‖
16

all exculpate [Watkins] from any wrongdoing.‖ The memo claimed that ―all 

[Watkins‘s] activities were blessed by Peters, Harley and [O‘Connell]. Just ask 

them. [Watkins] did nothing to aid [defendant‘s] plan which was well known 

among his defense team.‖

On August 7, 1998, the day after the federal indictment was filed, 

prosecution and defense counsel in this case addressed the trial court about the 

implications of the federal matter. Peters confirmed that besides defendant, ―this 

involves a defense investigator who is also charged in the federal case,‖ and it was 

therefore ―possible that myself and Mr. O‘Connell could be witnesses in that case, 

called by the other defendant.‖ Peters indicated that he and O‘Connell did not 

―see any actual conflicts at this point.‖ However, in an abundance of caution, 

defense counsel requested the appointment of an outside attorney to advise 

defendant about possible conflicts. The prosecutor joined in the request. 

Ultimately, upon agreement by all counsel, the court appointed Attorney Gary 

Pohlson to review applicable materials and render an opinion on the conflict issue.

On August 21, 1998, Pohlson reported his activities and conclusions in 

open court, with defendant and all counsel present. Pohlson acknowledged that 

Peters and O‘Connell would likely be called as witnesses in the federal case, and 

that a potential conflict arises whenever counsel are required to testify in a matter 

involving a client. However, Pohlson indicated that after reviewing materials 

related to the federal case, including the Waltz memo, and speaking with 

O‘Connell, Peters, and the federal prosecutor, he foresaw no possibility that 

anything Peters or O‘Connell would say in their federal testimony would be 

harmful to defendant in either the federal or the state case.

Pohlson further stated he had explained to defendant (1) the dangers of 

conflicted counsel, (2) that upon proper advisement defendant could waive any 

conflict that did exist, and (3) that if the conflict was validly waived, defendant 
17

could not rely on it later as a basis for attacking the state judgment. According to 

Pohlson, defendant indicated he did not believe a conflict existed and confirmed 

that he wished to retain Peters and O‘Connell as his state counsel.

The prosecutor, Orange County Deputy District Attorney Evans, agreed he 

could foresee no actual conflict. In particular, the prosecutor represented that he 

was largely ignorant of information gathered in the federal investigation, and that, 

in the instant proceeding, ―I don‘t intend to, and I will not use anything that was 

gathered in terms of information or evidence, and we will not derive anything 

from what was gathered, we won‘t use it even in a derivative sense.‖5 Peters and 

O‘Connell confirmed their views that there was no actual conflict, based on what 

they currently knew about the federal and state cases. Peters iterated that if he did 

testify in the federal case, ―I believe I would have nothing to say that would harm 

[defendant].‖

The court then engaged defendant in an extended colloquy on the conflict 

issue. The court preliminarily confirmed that defendant wished to waive any 

conflict of interest and retain Peters and O‘Connell as his counsel. The court 

 

5 This assertion stands in slight tension with the representations made in a 

March 2, 2000, federal court hearing addressing whether there should be some 

relaxation of defendant‘s stringent confinement conditions in the Los Angeles 

federal detention center while he prepared for his penalty trial in this case. Present 

at the hearing, among others, were defendant‘s state trial counsel, Peters, and 

Orange County Assistant District Attorney Jacobs, who had taken over the state 

prosecution from Evans. Among the issues was whether defendant should be 

allowed to review, in his cell, some 7,000 pages of discovery from the federal 

case. Discussing the relevance of these materials to defendant‘s penalty defense, 

both Peters and Jacobs indicated that, while the prosecution was bound to not 

introduce evidence from the federal investigation in its case-in-chief, some such 

evidence could come in on cross-examination, or as rebuttal to any mitigating 

evidence defendant might present. Ultimately, no evidence from the federal case 

was presented at defendant‘s penalty trial.
18

recited that, based on the information presented, ―there [was] an appearance of a 

potential conflict,‖ that it appeared there was no actual conflict, that the court 

could not finally determine whether an actual conflict existed, but that, if it did, 

such a conflict would likely ―not render the representation of defense counsel 

ineffective in and of itself.‖

The court advised defendant that ―[b]ecause of that appearance of conflict, 

or potential conflict, or conflict,‖ his lawyers might not be able to furnish effective 

representation, and he might not have a fair trial if represented by these counsel. 

Further, the court admonished defendant that, ―should you have ineffective 

counsel, your chances of being convicted are greater, and when you waive your 

right to conflict free counsel, you are also waiving an appeal based on that 

conflict.‖ Defendant confirmed that he understood. Defendant also agreed he had 

spoken with Pohlson, who had given him the same advisements.

The court then asked defendant whether ―[h]aving been advised of your 

right to be represented by attorneys free of conflict, and having understood the 

disadvantage and dangers of being represented by attorneys with conflicts, do you 

specifically give up the right to be represented by attorneys who have no conflict 

of interest?‖ Defendant responded, ―Yes.‖ Defendant agreed that no threats or 

promises had been made to secure the waiver, and the court confirmed that all 

counsel concurred in defendant‘s decision. Finally, the court adopted, and 

obtained defendant‘s understanding of, the prosecutor‘s further statement that 

defendant could withdraw his waiver at any future time if he discerned that a 

conflict of interest was adversely affecting the quality of his counsel‘s 

representation.

At a progress hearing in state court in December 1998, Attorney Peters 

reported that he was involved in ongoing negotiations with the United States 

Attorney‘s Office on defendant‘s behalf with respect to the federal indictment. 
19

Peters reported that a term under discussion in those negotiations was that 

defendant would agree to plead guilty in the instant case. Peters explained that, 

immediately upon the filing of the federal indictment, he had visited defendant, 

who made an ―impassioned plea‖ that he ―felt extremely responsible‖ for drawing 

Pham into the plot to murder Nguyen, and ―wanted to do anything he could to 

rectify the situation, particularly with her.‖ Peters reported that defendant ―gave 

me specific directions. And since that time I have been working on those 

directions, because I believe it is the right thing to do.‖

On March 9, 1999, defendant pled guilty in federal court to all counts of the 

federal indictment, pursuant to an agreement previously reached with the federal 

prosecutor.6 The agreement included defendant‘s promise that he would also 

plead guilty in the instant proceeding to the murder of Officer Burt, and would 

admit the special circumstance allegation that he intentionally killed a peace 

officer engaged in the performance of duty, subject to a trial to determine the 

appropriate penalty. It also provided for the continued imposition of very severe 

confinement conditions for the duration of defendant‘s federal incarceration, and 

included defendant‘s waiver of the right to serve his entire federal term before any 

state death sentence was carried out.

 

6 These counts included not only the murder conspiracy charge (Count One), 

but charges of the substantive offense of using the mail or interstate travel with the 

intent that murder for hire be committed (Count Two; 18 U.S.C. § 1958), and a 

charge that defendant aided, abetted, counseled, commanded, induced, and 

procured the commission by his federal codefendant, Ha, of the offense of 

knowingly and unlawfully possessing a machine gun (Count Three; 18 U.S.C. 

§§ 2(a), 922(o)(1)). The stipulated facts supporting Count Three were that in 

January 1998, defendant arranged for the sale of a MAC-11 machine gun and 

silencer, which were delivered to the undercover officer by Ha. The stipulation 

recites that two days later, the weapon malfunctioned during a test firing, causing 

a fatal head wound to the range officer.
20

As consideration for defendant‘s plea, the federal prosecutor promised to 

recommend, with respect to defendant, certain sentencing guideline reductions, 

provided defendant met specified conditions. The federal prosecutor also 

promised to give ―due consideration to the mitigating role‖ that Pham played in 

the Nguyen murder conspiracy, ―and accordingly to recommend a sentence for 

Pham based on that lesser role,‖ under the federal sentencing guidelines.

Attached to the federal agreement was a recitation of the factual basis of the 

plea. The parties stipulated that the facts set forth in the recitation could be proved 

beyond reasonable doubt in a trial. The redacted version of the recitation included 

in the instant record stated, among other things, that ―codefendant #4‖ (clearly 

Watkins) gave defendant a photo of intended murder victim Nguyen, which photo 

―codefendant #4‖ had obtained from discovery materials provided by the state 

prosecutor in this case. The recitation further stated that ―codefendant #4‖ warned 

defendant against attempting to confirm Nguyen‘s death by checking for a missing 

persons report, and instead offered to make some ―inquiries‖ by pay phone when 

he was in Houston. No portion of the factual recitation suggested that Peters or 

O‘Connell had any role in ―codefendant #4‘s‖ activities, or in those of any other 

defendant in the federal case.

In June 1999, Watkins pled guilty, pursuant to agreement, to a reduced 

federal charge of accessory after the fact to the offense of using the mail with 

intent that a murder for hire be committed (18 U.S.C. § 3). The agreement recited 

that, knowing defendant had committed the underlying substantive offense, 

Watkins ―assisted [defendant] with the intent to hinder or prevent [defendant‘s] 

apprehension, trial, and punishment‖ for that crime. Nothing in this recitation 

implicated Peters or O‘Connell.

On July 23, 1999, in the instant case, the court addressed the defendant‘s 

request to waive his trial rights with respect to guilt and special circumstance 
21

findings, and to stipulate that the trial court could determine those issues on the 

basis of the preliminary hearing transcript. At the plea hearing, the court took 

particular note of the condition in defendant‘s federal plea agreement that he plead 

guilty in the instant case. Accordingly, the court sought to assure itself that his 

waivers of trial rights were truly knowing, voluntary, and intelligent, and not the 

result of duress, coercion, threats, or promises.

Attorney Peters explained that defendant‘s motive for entering the federal 

plea agreement, though it provided him virtually no personal benefit, was to 

obtain, at any sacrifice to himself, any advantage he could secure for Pham. On 

the other hand, Peters represented, and the state and federal prosecutors — both of 

whom were present — agreed, that defendant was under no practical obligation, 

by virtue of the federal plea agreement, to enter a ―slow plea‖ in the state case. 

All federal sentencing jurisdiction over defendant and Pham had ended, and all 

terms of the agreement requiring the federal prosecutor to make recommendations 

concerning Pham‘s prison placement had been satisfied. Neither the state nor the 

federal prosecutor sought to hold defendant to the federal agreement‘s requirement 

that he plead guilty to Officer Burt‘s murder.

Rather, Peters, citing his experience as a capital trial lawyer, indicated that 

―I made an analysis and . . . based on the quality of evidence against [defendant] 

and the nature of some of that evidence, . . . I have always realized that if we had 

anything to say and wanted credibility, we have to do it at the penalty phase. 

That‘s why I am willing to do this.‖ As Peters explained, the prosecutor ―is going 

to put this evidence on anyways [at the penalty phase], some of it, and hopefully it 

will be lesser than he would have otherwise. And I need, if I am going to have any 

hope of looking jurors in the eye and making the pitches I want to make, that 

I have to have the highest degree of credibility with them, and I can have that 

credibility by pointing out that [defendant] has done the right thing [by not 
22

insisting on a guilt trial].‖ Indeed, Peters made clear, defendant ―is not begging 

for anything,‖ and ―may not even want to . . . present[ ] evidence in the penalty 

phase, he hasn‘t made that decision yet, and that‘s up to him.‖

In response to a request from the prosecutor that the record be made clear, 

Peters obtained defendant‘s confirmation that he had explained to defendant the 

―tactical and strategic reasons‖ for submitting the guilt and special circumstance 

issues, that defendant did not disagree with this advice, that defendant could do 

nothing more to help or hurt Pham, and that he was not required to waive his trial 

rights. The court accepted the stipulation.

However, the court revisited the issue on July 30, 1999. Counsel reported 

defendant was disturbed by newspaper articles that apparently cited the tactical

reasons counsel had given the previous week for agreeing to the ―slow plea‖ 

procedure — i.e., doing the ―right thing‖ in order to preserve credibility at a 

penalty trial — as defendant‘s personal reasons for stipulating to submission on 

the preliminary hearing transcript. Allowed to make a statement on his own 

behalf, defendant said he was ―not doing this so-called plea‖ in hopes of ―sav[ing] 

face or retain[ing] credibility for future jurors,‖ and was not ―asking for mercy or 

pity or sympathy from future jurors,‖ but was acting for ―my own personal 

reasons.‖ Defendant indicated that ―[w]hatever reasons my lawyers might have, 

strategic or other, they have discussed that with me,‖ and he assumed counsel 

were ―obligated to follow through with that,‖ but as far as he was concerned, 

―[w]hatever results emerge from my penalty phase and my sentencing, so be it.‖

Defendant declined to indicate what his ―personal reasons‖ were, but he 

insisted they did not include the hope of gaining anything for himself or for 

Victoria Pham. He again confirmed he was acting freely and voluntarily. The 

court thereupon indicated it was satisfied that defendant‘s waiver of a guilt and 

special circumstance trial was appropriate.
23

On the basis of this factual record, defendant now claims his trial counsel 

faced a potential conflict of interest arising from concerns about their personal 

involvement in the Nguyen murder conspiracy case, and in the conspiracy itself. 

This potential conflict, defendant insists, ripened into an actual one because, as a 

matter of fact, it adversely affected counsel‘s performance in the instant case, 

influencing them to refrain from providing a competent and vigorous defense at all 

phases of the state capital trial. Moreover, defendant maintains, his purported 

waiver of any conflict was invalid, because the record indicates he was not 

sufficiently apprised of the pressures that might bear on counsel‘s ability to give 

him zealous and undivided loyalty. He further asserts that aspects of his counsel‘s 

performance were professionally deficient regardless of any conflict. As we will 

explain, we find no merit in these contentions.

2. Applicable law.

A criminal defendant‘s federal and state constitutional rights to counsel

(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) includes the right to effective

legal assistance. When challenging a conviction on grounds of ineffective 

assistance, the defendant must demonstrate counsel‘s inadequacy. To satisfy this 

burden, the defendant must first show counsel‘s performance was deficient, in that 

it fell below an objective standard of reasonableness under prevailing professional 

norms. Second, the defendant must show resulting prejudice, i.e., a reasonable 

probability that, but for counsel‘s deficient performance, the outcome of the 

proceeding would have been different. When examining an ineffective assistance 

claim, a reviewing court defers to counsel‘s reasonable tactical decisions, and 

there is a presumption counsel acted within the wide range of reasonable 

professional assistance. It is particularly difficult to prevail on an appellate claim 

of ineffective assistance. On direct appeal, a conviction will be reversed for 
24

ineffective assistance only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was asked 

for a reason and failed to provide one, or (3) there simply could be no satisfactory 

explanation. All other claims of ineffective assistance are more appropriately 

resolved in a habeas corpus proceeding. (E.g., People v. Vines (2011) 51 Cal.4th 

830, 875-876 (Vines); People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

The federal and state constitutional right to counsel in a criminal case also 

includes the right to representation free of conflicts of interest that may 

compromise the attorney‘s loyalty to the client and impair counsel‘s efforts on the 

client‘s behalf. (E.g., Glasser v. United States (1942) 315 U.S. 60, 69-70; 

People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) For both state and federal 

purposes, a claim of conflicted representation is one variety of claim that counsel 

provided ineffective assistance. Hence, to obtain reversal of a criminal verdict, the 

defendant must demonstrate that (1) counsel labored under an actual conflict of 

interest that adversely affected counsel‘s performance, and (2) absent counsel‘s 

deficiencies arising from the conflict, it is reasonably probable the result of the 

proceeding would have been different. (Mickens v. Taylor (2002) 535 U.S. 162, 

166 (Mickens); Doolin, supra, at pp. 417-418, 421; see Strickland v. Washington

(1984) 466 U.S. 668, 687, 694.)

When addressing an appellate claim that a conflict of interest adversely 

affected counsel‘s performance, the reviewing court is ―  ̳bound by the record. 

But where a conflict of interest causes an attorney not to do something, the record 

may not reflect such an omission. We must therefore examine the record to 

determine (i) whether arguments or actions omitted would likely have been made 

by counsel who did not have a conflict of interest, and (ii) whether there may have 

been a tactical reason (other than the asserted conflict of interest) that might have 
25

caused any such omission.‘ (People v. Cox (2003) 30 Cal.4th 916, 948-949.)‖ 

(Doolin, supra, 45 Cal.4th 390, 418.)

The defendant may voluntarily, knowingly, and intelligently waive a 

conflict of interest. But the court must take steps to ensure that any waiver of a 

possible conflict meets those standards. If, after inquiry, the court determines that 

a waiver is necessary, it must satisfy itself that the defendant (1) has discussed 

with his or her own counsel, or with an outside attorney if he or she wishes, the 

potential drawbacks of representation by counsel who may have a conflict of 

interest; (2) has been advised of the dangers of conflicted representation in his 

case; and (3) voluntarily wishes to waive that right. Where the court fails to fulfill 

these duties, reversal is required if the defendant can establish that counsel‘s 

performance was deficient, that an actual conflict of interest was the reason for the 

deficiency, and that it is reasonably probable the deficiency adversely affected the 

outcome of the case. (People v. Sanchez (1995) 12 Cal.4th 1, 47 (Sanchez); 

People v. Bonin (1989) 47 Cal.3d 808, 837-838; People v. Mroczko (1983) 35 

Cal.3d 86, 110; see Doolin, supra, 45 Cal.4th 390, 417-418, 421.)

3. Waiver of conflict of interest.

The People urge at the outset that defendant validly waived any conflict of 

interest arising from his counsel‘s connection to the federal case. We agree.

Here, the court perceived a possible conflict of interest and, as the cases 

require, it addressed the issue with considerable care. The court appointed 

independent counsel to investigate and advise defendant on the subject, and 

confirmed that independent counsel had done so. Before taking defendant‘s 

waiver, the court warned him of the essential danger of conflicted representation, 

i.e., that the conflict might induce counsel to ―pull their punches‖ when 

representing him in the instant case. It was further agreed on the record that 
26

defendant could withdraw the waiver at any time if a conflict actually materialized 

and he perceived it was affecting his counsel‘s performance. Hence, it appears 

defendant was generally apprised of the considerations that should influence his 

waiver decision.

Nonetheless, defendant complains that because the court‘s inquiry into the 

conflict, and the advisements he received, were inadequate, his purported waiver 

was not knowing, voluntary, and intelligent. He asserts that, while he was warned 

about the chance his counsel might be witnesses in the federal matter, and was 

assured they would say nothing to inculpate him, he was never informed of the 

Waltz memo‘s insinuations that counsel themselves had committed serious ethical 

and criminal violations by ―direct[ing]‖ and ―bless[ing]‖ Watkins‘s involvement in 

the Nguyen murder plot. Defendant insists he should have been told that counsel‘s 

exposure to personal criminal liability might motivate them to ―pull their punches‖ 

when representing him, in order to curry favor with both federal and state 

prosecutors in hopes of avoiding the consequences of their own derelictions. 

Indeed, defendant posits, by accepting assurances that there appeared no chance 

his counsel would testify unfavorably to him in the federal matter, he may 

mistakenly have believed that there was no potential conflict, and that he could 

therefore safely enter his waiver.

However, as we have consistently said, waiver of a possible attorney 

conflict of interest is not invalid simply because all conceivable ramifications of 

the potential conflict were not explored or explained, and the waiver does not 

extend only to those matters discussed on the record. (E.g., People v. Roldan

(2005) 35 Cal.4th 646, 728; People v. Carpenter (1997) 15 Cal.4th 312, 375; 

Sanchez, supra, 12 Cal.4th 1, 47-48.) Indeed, where no actual conflict has 

materialized at the time the waiver is taken, it may simply be impossible to foresee 

future developments that could have a genuine effect on counsel‘s loyalty and 
27

zeal; on the other hand, sources of conflict that are merely speculative and 

conjectural need not be addressed.

That is the situation presented here. The sole basis in the record for the 

proposition that defendant should have been warned about his counsel‘s possible 

direct criminal involvement in the Nguyen murder conspiracy is the Waltz memo, 

which Independent Counsel Pohlson reviewed. But that document is an 

exceedingly weak foundation upon which to build such a theory.

Defendant characterizes the Waltz memo as containing ―allegations‖ by 

Watkins himself that his criminal assistance to defendant in the Nguyen murder 

plot was ―directed‖ and ―blessed‖ by defendant‘s attorneys, Peters and O‘Connell. 

On the contrary, Waltz‘s off-the-cuff assertions, apparently made prior to his 

actual appointment as Watkins‘s federal lawyer, did not amount to direct 

―allegations‖ by Watkins. At most, they appear to have been a lawyer‘s clumsy, 

informal, and preliminary attempts to advocate on a potential client‘s behalf, and 

perhaps to apply some kind of tactical leverage against Peters and O‘Connell as 

potential witnesses in Watkins‘s case. Pohlson could reasonably conclude they 

exhibited no indicia of credibility sufficient to invoke a genuine concern about 

counsel‘s criminal involvement in the acts charged against Watkins by the federal 

indictment.

Moreover, by its terms, the ambiguously worded Waltz memo did not 

explicitly claim Peters and O‘Connell knew of, directed, or blessed any criminal 

activity by Watkins. While the memo declared that Watkins ―interacted‖ with 

defendant, that defendant told Watkins of his plan to kill Nguyen, and that 

Watkins ―reported all that‖ to defendant‘s counsel, the memo also insisted that the 

federal charges against Watkins were ―phony‖ and ―trumped up,‖ that Watkins 

―did nothing to aid [defendant‘s] plan,‖ and that any testimony by Peters and 

O‘Connell in Watkins‘s federal case would ―exculpate [Watkins] from any 
28

wrongdoing.‖ It is reasonable to assume Waltz believed Peters and O‘Connell 

would say, truthfully, that Watkins did nothing illegal on their orders, and that any 

activities of Watkins they ―direct[ed]‖ or ―blessed‖ were legitimate.

Finally, it was entirely reasonable, upon review of the Waltz memo, to 

conclude at the time the waiver was entered that the principal source of potential 

conflict it revealed was the possibility counsel would be called as witnesses in 

Watkins‘s defense. Indeed, the only reason the Waltz memo expressed for its 

claim that Peters and O‘Connell should be disqualified from representing 

defendant in this case was that ―their testimony in Federal court [would] be 

adverse to [defendant]‖ insofar as it exculpated Watkins.

Under these circumstances, neither Independent Counsel Pohlson nor the 

court was reasonably obliged to speculate further about what conflicts might arise 

as a result of the federal investigation into defendant‘s murder plot and the 

resulting indictment. There was no requirement to advise defendant that, aside 

from the chance Peters and O‘Connell might be called as witnesses on Watkins‘s

behalf, another source of conflict might be their own potential criminal liability for 

his activities. Accordingly, defendant‘s waiver of a potential conflict of interest 

was valid when given.

4. Claims of ineffective and conflict-related adverse 

representation.

In any event, defendant‘s complaints against his counsel fail on the merits. 

He is unable to show on the appellate record that any potential conflict of interest 

actually materialized. Further, the record fails to demonstrate that any conflict of 

interest resulted in adverse performance by his counsel, or that counsel otherwise 

rendered ineffective assistance.

At the outset, there is no evidence on the record that Defense Counsel 

Peters and O‘Connell were called as witnesses in the federal case, or ever became 
29

the focus of any state or federal investigation into their own criminal involvement 

in the activities of their investigator, Watkins. Indeed, the record belies any such 

developments. As noted above, Watkins never went to trial in the federal case 

against him; in June 1999, he entered a negotiated plea to a reduced charge of 

accessory after the fact in the conspiracy to murder Chang Nguyen. The brief 

factual recitation included in the plea agreement made no reference to Peters or 

O‘Connell. Similarly, in March 1999, defendant himself entered a negotiated plea 

to the federal charges against him. His plea agreement attached an extensive 

factual recitation of his central role in the murder plot, but again, it included no 

mention of any involvement by Peters and O‘Connell.

These events occurred before July 23, 1999, when defendant entered his 

―slow plea‖ to the capital charges in this case. By this time, therefore, it appears 

counsel was not burdened by any actual, or even potential, conflict arising from 

the chance they would be called as witnesses in the federal proceedings against 

Watkins or defendant.

But even if we assume a potential conflict remained because of the 

possibility Peters and O‘Connell might still be criminally charged in the Nguyen 

murder plot, the record discloses no adverse or ineffective performance by his 

counsel. Defendant cites several actions or omissions by counsel that he deems 

adverse, deficient, and conflict related, but the record does not support his claims.

a. Federal plea agreement; “slow plea” strategy.

First, defendant urges the potential conflict caused counsel to engineer his 

onerous plea agreement in the federal case, by which he additionally, and 

prejudicially, bound himself to plead guilty to the murder charge and peace officer 

special circumstance allegation in this case. But the record suggests otherwise. 

Without objection by defendant, Peters explained in state court that the reason 
30

defendant acceded to the federal terms was to obtain, at any sacrifice, whatever 

benefit he could for his girlfriend and federal codefendant, Victoria Pham. The 

government agreed, in return for defendant‘s federal plea, to make certain leniency 

recommendations for Pham, and it honored its promise.

In any event, defendant fails to demonstrate from the record that the 

agreement resulted in his ―slow plea‖ here. Again, the evidence is to the contrary. 

Before allowing defendant to submit the guilt and special circumstance issues on 

the preliminary hearing transcript, the instant trial court took particular note of the 

―plead guilty‖ term of the federal agreement and inquired about its significance. 

The federal and state prosecutors stressed they did not deem defendant bound by 

his federal promise, and they conceded there was nothing the government could do 

by that time if he breached it. Peters explained the ―slow plea‖ was not influenced 

by the federal agreement, but was a tactical and strategic decision, based on the 

premise that the evidence against defendant was overwhelming, that there was 

little if any chance a jury would exonerate defendant of capital charges, and that a 

penalty jury might be better disposed toward defendant if the jurors knew he had 

―done the right thing‖ by waiving a trial on the issue of guilt.

The record confirms the strength of the evidence that defendant murdered a 

police officer during a routine traffic stop in order to escape arrest for a third strike

offense. Counsel also presumably knew a penalty trial would likely reveal 

defendant as a violent sociopath with a significant, gang-affiliated criminal 

background, even without the evidence that he orchestrated, from behind bars, a 

plot to kill a principal prosecution witness in this case. Counsel thus faced a 

particularly difficult task in defending the case at both the guilt and penalty 

phases.

Under these circumstances, where realistic lines of defense were few, it was 

tactically and strategically reasonable to acquiesce in a ―slow plea‖ on the guilt 
31

and special circumstance issues, in hopes of preserving some credibility and 

sympathy before a penalty jury. The record does not show that a different strategy 

would likely have been adopted by competent, unconflicted counsel. Hence, it

fails to demonstrate either conflict-driven adverse performance, or ineffective 

assistance, on counsel‘s part. (See Doolin, supra, 45 Cal.4th 390, 424.)

Defendant insists counsel‘s ―slow plea‖ strategy was adverse and 

incompetent insofar as defendant failed to receive a return benefit and, in 

particular, a prosecutorial promise not to seek the death penalty. But the record 

contains no inkling that counsel could reasonably have expected such benefits. 

Common sense suggests the prosecution would not likely have offered favorable 

terms in a case presenting overwhelming evidence that defendant murdered a 

peace officer in cold blood to avoid arrest and prosecution for other crimes. 

Again, the record affords no ground to conclude that counsel‘s failure to seek such 

benefits constituted adverse performance stemming from a conflict of interest, or 

was otherwise professionally deficient.7

Defendant also contends his counsel‘s agreement to a ―slow plea‖ was 

adverse and incompetent insofar as it deprived him of a ―compelling‖ trial 

argument against the sole special circumstance allegation, that he murdered a 

peace officer ―engaged in the performance of . . . duties.‖ (§ 190.2(a)(7).) This 

 

7 Defendant suggests counsel might have offered defendant‘s cooperation in 

providing information about the conspiracy to murder Nguyen in return for a 

promise of leniency. However, it seems particularly unlikely state prosecutors 

would have given up their right to seek death for defendant‘s actual murder of a 

CHP officer in return for defendant‘s help to federal prosecutors in a case 

involving a mere unsuccessful plot to kill a witness in the state case. Hence, so far 

as appears from the record, defendant‘s counsel had reasonable grounds not to 

pursue this avenue, and there is no basis to believe competent, unconflicted 

counsel would likely have acted differently.
32

claim is premised on the rule that murder of a peace officer ―engaged in . . . 

duties‖ is only committed when the officer was exercising his or her authority 

lawfully at the time the lethal act occurred. (E.g., People v. Cruz (2008) 

44 Cal.4th 636, 673; People v. Mayfield (1997) 14 Cal.4th 668, 791 (Mayfield); 

People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.)

As defendant observes, a police detention, including a traffic stop, is an 

unlawful ―seizure‖ under the Fourth Amendment absent specific articulable facts 

that objectively manifest a possibility the person detained is violating the law. 

(E.g., Delaware v. Prouse (1979) 440 U.S. 648, 663; People v. Hernandez (2008) 

45 Cal.4th 295, 299; Mayfield, supra, 14 Cal.4th 668, 791.) Defendant asserts a 

jury could have found the prosecution had been unable to prove beyond reasonable 

doubt that Officer Burt ―lawfully‖ stopped and detained him on July 13, 1996.

The pertinent circumstances are as follows: Defendant‘s murder of Officer 

Burt prevented the victim from explaining why the stop occurred. At the 

preliminary hearing, prosecution witness Nguyen testified defendant told him the 

officer stopped him because his lights were not on, although defendant thought 

they were on. As in effect in 1996, the traffic laws required vehicles to turn on 

their lights from one-half hour after sunset until one-half hour before sunrise, or in 

other poor visibility conditions. (Veh. Code, §§ 280, 24400, 38335.) The stop 

occurred in the early evening of July 13, 1996 — sometime after 8:00 p.m. — but 

the record does not disclose the exact time of sunset in Fullerton on that 

midsummer day, and eyewitness Bernice Sarthou testified the sun had not yet set 

when the stop occurred.8 Thus, defendant urges, he might have persuaded a jury 

 

8 Sarthou also testified, however, that she observed the traffic stop about 8:30 

p.m., when she pulled into the driveway of an adjacent restaurant. Moreover, by 

(Footnote continued on next page.)
33

there was reasonable doubt whether the prosecution had established the 

lawfulness, ab initio, of the traffic stop that eventually led to Officer Burt‘s 

murder.

However, even though the peace officer special circumstance was crucial to 

defendant‘s eligibility for the death penalty, counsel were not compelled to pursue 

an ―illegal stop‖ strategy regardless of its chances of success. It is noteworthy that 

after reviewing the preliminary hearing transcript, the learned trial court, acting as 

a fact finder, implicitly found all elements of the special circumstance, including 

the ―lawful duty‖ element, proven beyond reasonable doubt. Elsewhere in this 

opinion, we uphold this implicit finding; we consider on the merits, and reject, 

defendant‘s claim that there was insufficient evidence from which a rational fact 

finder could find beyond reasonable doubt that Officer Burt was lawfully 

performing his duties when he was killed.

Thus, experienced trial counsel could rationally conclude, for several 

reasons, that the overall risks of trying the special circumstance issue outweighed 

the benefits. In the first place, counsel knew that in any jury trial, the jury would 

be exposed to persuasive evidence defendant had gunned down Officer Burt 

during a routine traffic stop in order to avoid arrest and conviction for a third 

strike offense. Under these circumstances, counsel could harbor a reasonable 

concern that lay jurors would find an ―illegal stop‖ argument hypertechnical and 

cynical, would reject it out of hand, and would carry residual hostility over to their 

penalty deliberations — the very kind of danger counsel sought to prevent.

 

(Footnote continued from previous page.)

an order entered June 27, 2013, we have taken judicial notice that sunset occurred 

in Fullerton on July 13, 1996, at 8:04 p.m., approximately one-half hour earlier.
34

Moreover, counsel had grounds for concern that the evidence at such a trial 

— and, in particular, evidence on the issue of ―lawful duty‖ — would not 

necessarily be limited to that adduced at the preliminary hearing. The prosecution, 

mindful of its trial duty to prove every guilt and special circumstance element 

beyond reasonable doubt (as opposed to its preliminary hearing duty merely to 

show sufficient evidence to warrant a trial), could be expected to enhance its 

effort to establish that Officer Burt was acting lawfully when he was killed. By 

submitting the special circumstance issue on the preliminary hearing transcript, 

defendant avoided such additional proof, forced the trial court to decide whether 

the preliminary hearing evidence alone persuaded it that ―lawful duty‖ had been 

established beyond reasonable doubt, and, in the event the trial court so found, 

preserved his right to argue on appeal, as he does, that this evidence was not 

legally sufficient. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 604 

[defendant who submits cause on transcript preserves right to argue on appeal 

regarding sufficiency and legal significance of evidence]; People v. Martin (1973) 

9 Cal.3d 687, 694-695 [same].)9

 

9 Defendant asserts that counsel, while submitting on the evidence adduced 

at the preliminary hearing, should, and if unconflicted likely would, at least have 

argued to the trial court that this evidence did not establish the ―lawful duty‖ 

element beyond a reasonable doubt. But competent, unconflicted counsel could

conclude otherwise. Aside from an assessment that such an argument was 

unlikely to succeed, counsel could fear it would cause the prosecution to seek the 

opportunity to adduce further evidence on this issue. Even if defendant was 

willing to submit his cause on the evidence adduced at the preliminary hearing, the 

prosecution was not necessarily compelled to agree to such a procedure. Had the 

People been alerted to a claim that, in fact, their showing at the preliminary 

hearing failed to meet the reasonable-doubt standard on any guilt or special 

circumstance element, no reason of fairness or logic suggests they were foreclosed 

from insisting on the right to present further evidence, whether before the court or 

a jury, to bolster their case. (But cf., People v. Ernst (1994) 8 Cal.4th 441, 446-

447 [prosecution may not exercise its right to jury trial over defendant‘s plea of 

(Footnote continued on next page.)
35

The record on appeal does not disclose that counsel failed to weigh the 

possibility of further litigating the ―illegal stop‖ issue, that competent, 

unconflicted counsel would likely have pursued such a strategy, or that any 

conflict of interest actually influenced his counsel‘s decision not to do so. 

Accordingly, defendant has not demonstrated counsel‘s conflict-related adverse 

performance in this respect.

b. Penalty phase strategy.

Defendant urges the record includes ―circumstantial evidence‖ that counsel, 

influenced by their conflict of interest, performed adversely with respect to the 

penalty trial by failing to challenge the prosecution‘s aggravating evidence, by 

omitting to inform him fully about potentially available mitigating evidence, by 

acceding to his wishes to present no mitigating evidence or argument, and by 

making an insufficient effort to dissuade him from taking the stand to invite a 

death sentence. Indeed, he suggests, the record permits an inference that counsel 

actually encouraged his decision not to fight for his life. We disagree.

i. Failure to challenge aggravating evidence.

Defendant urges that his attorneys, burdened by a conflict of interest, 

performed adversely to his interests at the penalty trial by failing to conduct more 

than desultory cross-examination of prosecution witnesses, by making few 

objections to evidence, by stipulating to various facts, and by failing to dispute the 

 

(Footnote continued from previous page.)

guilty].) As noted in the text, the strategy chosen by counsel avoided this pitfall, 

kept open the possibility the trial court would find the preliminary hearing 

evidence unpersuasive, and, if the court failed to do so, preserved defendant‘s 

right to raise an insufficient-evidence claim on appeal.
36

prosecution‘s claim that defendant carjacked and kidnapped Robert Bachand 

during a vehicle test drive.

However, we have made clear that ―[s]uch matters as whether objections 

should be made and the manner of cross-examination are within counsel‘s 

discretion and rarely implicate ineffective assistance of counsel.‖ (People v. 

McDermott (2002) 28 Cal.4th 946, 993; see People v. Bolin (1998) 18 Cal.4th 297, 

334.) Defendant points to no exculpatory or impeachment evidence that further 

examination would have elicited. ―  ̳We cannot evaluate alleged deficiencies in 

counsel‘s representation solely on defendant‘s unsubstantiated speculation.‘ ‖ 

(Bolin, supra, 18 Cal.4th at p. 334, quoting People v. Cox (1991) 53 Cal.3d 618, 

662, fn. omitted.) Nor does such unsubstantiated speculation allow us to infer that 

unconflicted counsel would likely have acted differently.

In particular, defendant suggests counsel knew of grounds to challenge the 

Bachand carjacking evidence and, if competent and unconflicted, would likely 

have mounted such a challenge. As support for this contention, defendant points 

to his own courtroom outburst during the testimony of Bachand, an automobile 

salesman. When Bachand recounted that two men, of whom defendant was the 

taller, approached him with a request to test drive a 1996 Honda Prelude, 

defendant interrupted to shout, ―This is fucking bullshit. What the fuck am I going 

to carjack a piece of shit Honda? [¶] If I were in the car I would have wasted your 

fucking ass, it would have been stupid.‖ When Bachand said to defendant, ―You 

had your chance,‖ defendant asserted, ―You fucking ass, I will put something 

on.‖10 Defendant also points to Attorney Peters‘s statement at the hearing on the 

 

10 A few moments later, Bachand said that after he was handcuffed at 

gunpoint and forced to lie down in the carjacked vehicle‘s back seat, defendant 

warned him to cooperate in handing over his ATM card and PIN number because 

(Footnote continued on next page.)
37

automatic motion for modification of the death verdict that he had tried to 

persuade the prosecutor not to present the carjacking incident ―because I knew 

from my own investigation that [defendant] was not good for [i.e., did not do] 

that.‖

But nothing in the record passages defendant cites is evidence that 

undermines the prosecution‘s proof of the carjacking incident. In response to 

careful questioning by the prosecutor and the court, Bachand positively identified 

defendant as the taller man who requested the test drive and later participated in 

abducting him at gunpoint. The record discloses no ground to conclude that any 

evidence to discredit this testimony existed, that defendant‘s counsel knew or 

should have known of such evidence, or that counsel would likely have produced 

it if competent and unconflicted. Defendant‘s claim must be rejected.

ii. Failure to pursue mitigating evidence.

Defendant next urges that, in one respect, the record indicates counsel 

failed in their duty to investigate and present to the client potentially significant 

mitigating evidence before acceding to his wishes not to offer it in mitigation. 

(See, e.g., Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1089-1090.) 

Defendant points to his counsel‘s representations that his girlfriend, Victoria 

Pham, had said his behavior became more violent after a near-fatal auto accident; 

as a result, according to counsel, the defense psychologist, Dr. Veronica Thomas, 

recommended neuropsychological tests, and perhaps an MRI or CAT scan, to 

 

(Footnote continued from previous page.)

―  ̳[y]ou don‘t know who you are messing with‘ ‖ and ―  ̳we‘re Asian, Vietnamese 

Mafia.‘ ‖ At this point, defendant interrupted again to say, ―Asian Mafia, stupid 

fuck.‖
38

determine whether defendant had sustained brain damage. Defendant notes that 

counsel‘s billing records fail to indicate that Dr. Thomas, or any other qualified 

mental health expert, ever conducted such tests, and we must thus assume they 

were not performed.

But even if we so assume, the record discloses no basis to conclude 

counsel‘s failure to pursue this line of inquiry, and to advise defendant of the 

results before agreeing not to present them, was deficient performance influenced 

by their asserted conflict of interest. To the extent the record sheds any light at all 

on the subject, it suggests a different explanation.

In mid-1999, over eight months before the actual commencement of the 

penalty trial, counsel represented that they intended to pursue testing for brain 

damage, and were preparing to do so, as a priority matter, subject to approval of 

the necessary funding. However, the record contains circumstantial evidence that 

the defense team, including Dr. Thomas, thereafter became absorbed in an effort 

to deal with defendant‘s increasing anger and emotional instability caused, in part, 

by the restrictive conditions of his federal confinement. There are indications that 

this anger and instability, resulting in defendant‘s lack of cooperation with Dr. 

Thomas, may be the ultimate reason why such tests were never administered.

As discussed in greater detail in part A.4.c below, defendant, following his 

federal conviction, was held in federal detention pending his trial on these state 

capital charges. He was subject to the harsh confinement conditions dictated by 

his federal plea agreement. His subsequent serious rule violations while confined 

led to even more severe restrictions imposed by the federal district court and his 

federal jailors. In the months and weeks preceding his state trial, he was kept 

under constant surveillance, and in essential isolation, except for access to the 

defense team.
39

During this period, and through the commencement of the penalty trial, 

counsel, assisted by Dr. Thomas, worked tirelessly to obtain a relaxation of these 

conditions, citing the psychological effects of defendant‘s confinement on defense 

efforts to prepare for the trial. To that end, counsel and Dr. Thomas represented in 

various fora that, though defendant was not incompetent, the emotional and 

psychological toll of his confinement was impairing his attitude and willingness to 

cooperate, to the extent that Dr. Thomas was ―unable to move forward‖ with her 

work for the defense and could not complete that work.

Thus, though the record does not establish for certain the reason tests for 

brain damage were never done, it does not support the inferences defendant seeks 

to draw. It fails to demonstrate that counsel‘s deficient performance, arising from 

a conflict of interest, was the reason for any failure to administer the desired tests, 

or that such tests would likely have been administered but for counsel‘s conflict 

and incompetence.

iii. Failure to present mitigating evidence and argument.

Next, defendant urges that counsel, influenced by their conflict of interest, 

performed deficiently by acceding to his wish not to present available mitigating 

penalty evidence. Defendant concedes that counsel does not necessarily act 

incompetently by honoring the client‘s wishes not to present such evidence 

(People v. Lang (1989) 49 Cal.3d 991, 1031 (Lang); see People v. Howard (1992) 

1 Cal.4th 1132, 1185; People v. Edwards (1991) 54 Cal.3d 787, 811),11 but he 

 

11 As we explained in Lang, ―[t]he proposition that defense counsel should be 

forced to present mitigating evidence over the defendant‘s objection has been 

soundly criticized by commentators. [Citations.] As these commentators point 

out, an attorney‘s duty of loyalty to the client means the attorney  ̳should always 

remember that the decision whether to forego legally available objectives or 

methods because of non-legal factors is ultimately for the client . . . .‘ [Citation.] 

(Footnote continued on next page.)
40

asserts that counsel need not do so (see People v. Roldan, supra, 35 Cal.4th 646, 

682 [counsel, not client, has control over all but most fundamental trial decisions]; 

People v. Welch (1999) 20 Cal.4th 701, 728-729 [same]) and should overrule a 

client they suspect is unable to make a rational decision. Here, he asserts, his 

counsel knew he was psychologically unstable, and sometimes irrational, as the 

result, among other things, of his harsh confinement conditions.

Moreover, defendant asserts that counsel‘s decision deprived him of a 

substantial mitigating case, including evidence he was the illegitimate child of a 

Vietnamese ―bar girl‖ and a South Vietnamese soldier, was rescued from war-torn 

Vietnam at the age of four, and never again had contact with either parent until he 

saw his father at the time of the capital trial.

Again, however, the record does not support defendant‘s theory that 

counsel‘s decision, at defendant‘s own insistence, to present no mitigating penalty 

evidence stemmed from a conflict of interest. Nor does it indicate that defendant 

 

(Footnote continued from previous page.)

To require defense counsel to present mitigating evidence over the defendant‘s 

objection would be inconsistent with an attorney‘s paramount duty of loyalty to 

the client and would undermine the trust, essential for effective representation, 

existing between attorney and client. Moreover, imposing such a duty could cause 

some defendants who otherwise would not have done so to exercise their Sixth 

Amendment right of self-representation [citation] before commencement of the 

guilt phase [citations] in order to retain control over the presentation of evidence at 

the penalty phase, resulting in a significant loss of legal protection for these 

defendants during the guilt phase.‖ (Lang, supra, 49 Cal.3d 991, 1030-1031.) No 

different standards or considerations should apply simply because, on appeal, the 

defendant applies a ―conflict of interest‖ gloss to counsel‘s decision. As Lang

suggested, counsel‘s accession to the client‘s considered desire to present no 

mitigating evidence demonstrates loyalty to the client, not conflict-related 

disloyalty.
41

was acting irrationally in seeking to present no mitigating case. On the contrary, 

the record is replete with indications that counsel pursued evidence about the 

circumstances of defendant‘s birth and his escape from Vietnam, and were 

prepared to present that evidence. Indeed, counsel obtained trial delays, and 

surmounted various bureaucratic, diplomatic, and logistical difficulties, in a 

successful effort to bring defendant‘s father and uncle from rural Vietnam to 

testify on his behalf. 

On the other hand, there are indications that defendant consistently, and 

rationally, opposed the presentation of a penalty defense, despite counsel‘s efforts 

to change his mind. Ultimately, on April 17, 2000, after the prosecution had 

rested its penalty case, counsel advised the court there would ―probably‖ not be 

any defense evidence, but that counsel would be discussing that with defendant 

―over the next day and a half.‖ Counsel indicated that ―we do have evidence 

available, and we could use it if there is a change in mood.‖ The court obtained 

defendant‘s agreement that counsel had advised him they were ready, willing, and 

able to present such evidence, and had ―recommended to you that it be presented.‖ 

Defendant also confirmed his understanding, as advised by the court, that his 

decision not to offer such evidence might result in the death penalty, and that if he 

precluded such evidence, he could not blame his lawyers or otherwise complain on 

appeal about its omission.

On April 19, 2000, Attorney Peters advised the court that, ―for some time‖ 

he had been discussing possible penalty defenses with defendant, ―and it has been 

his consistent wish not to defend himself for what he believes are valid moral 

reasons, and I believe that he is competent and he is thinking morally for himself.‖ 

Peters indicated that defendant had threatened to ―act out,‖ such as by interrupting 

or overturning tables, if counsel acted contrary to his desires. Peters declared that 

under these circumstances, and especially considering that the available mitigation 
42

was probably too weak to make a difference in the penalty determination, he was 

making a ―conscious decision‖ to do as defendant asked.

The court then engaged defendant in another extended colloquy about his 

decisions not to present mitigating evidence or argument, and to testify personally. 

At the court‘s prompting, defendant again indicated he understood that counsel 

had mitigating evidence, were prepared to present it, and wanted to do so. 

Defendant confirmed he did not wish counsel to present such evidence. The court 

reminded defendant that, even if he offered no evidence, his lawyers, if allowed to 

speak on his behalf, could possibly ―present different arguments to the jurors that 

might be favorable to you. And precluding [counsel] from that is another step 

towards the death penalty.‖ Defendant separately confirmed he wished to 

preclude counsel from arguing the case.

Explaining his position on these issues, defendant insisted he was ―not 

suicidal,‖ but this was ―something I need to do,‖ something ―important‖ and 

―right‖ that seemed ―necessary.‖ Defendant said he was ―not looking at this [in] a 

way everyone else here is looking at it. I feel I am competent, I can do this, and 

I would appreciate my lawyer not to say anything.‖

Attorney Peters asked defendant whether, as Peters had told the court two 

days earlier, defendant intended to ―act out‖ if counsel tried to present an 

argument. Defendant said he would do so, albeit reluctantly. On this basis, Peters 

again indicated he was making a ―conscious decision‖ to proceed as defendant 

requested. Peters declared he would rather have defendant ―say his [piece] to the 

jury‖ than display disruptive behavior to the jurors if counsel tried to overrule him.

In his testimony to the jury, defendant further explained his attitudes. He 

told the jurors he had asked his lawyers not to speak on his behalf, and he 

―appreciate[d]‖ their cooperation in that regard. He said that his personal code 

demanded ―two eyes for every eye‖; that under such a code, the maximum penalty 
43

was ―properly suited for this occasion‖ and was ―the right thing for [the jurors] to 

do‖; that ―there‘s a price to pay for everything in life‖; and that, ―as part of the 

game,‖ it was time he paid the price.

Thus, all record indications are that the omission of mitigating evidence 

was the result of defendant‘s clear, consistent, cogent, and articulately expressed 

wish to forego such evidence for moral and ethical reasons. There is no basis to 

conclude that this decision stemmed from any conflict of interest adversely 

affecting counsel‘s performance or that counsel, if unconflicted, would likely have 

acted differently.

12 Defendant essentially urges that counsel, and the court, were 

obliged to ensure defendant received a penalty defense whether he wanted one or 

not, but such is not the case. (E.g., Lang, supra, 49 Cal.3d 991, 1030-1031; see 

also pt. E, post.) Similar considerations apply to defendant‘s argument that 

conflict-free counsel would and should have overridden defendant‘s wish that 

counsel present no argument to the jury on his behalf. Defendant‘s contrary 

claims lacks merit.

iv. Defendant’s testimony.

Nor is there merit to defendant‘s claim that competent, unconflicted 

counsel could, should, and likely would have raised valid objections to 

defendant‘s testimony inviting the death penalty. A defendant, of course, has the 

 

12 Defendant urges that the adverse conflict-related influence on Attorney 

Peters‘s willingness not to present mitigating evidence in this case is 

circumstantially demonstrated by the fact that, in at least one other capital trial, 

Peters did present mitigating evidence against his client‘s wishes. (See Douglas v. 

Woodford, supra, 316 F.3d 1049, 1087-1090 [finding, despite client‘s lack of 

cooperation, that Peters conducted inadequate mental and social history 

investigation, and noting that Peters had presented some sociological evidence 

though client did not wish him to do so].) Unaware of the full circumstances in 

the other case, we are unwilling to draw the strained inference defendant proposes.
44

absolute right to give such testimony, even against his counsel‘s wishes. 

(People v. Nakahara (2003) 30 Cal.4th 705, 719 (Nakahara); People v. Webb

(1993) 6 Cal.4th 494, 534-535 (Webb); People v. Guzman (1988) 45 Cal.3d 915, 

961-963 (Guzman).)

Defendant cites a case decided long after his trial, People v. Lancaster

(2007) 41 Cal.4th 50 (Lancaster), for the proposition that a defendant‘s testimony 

seeking a death sentence is irrelevant to mitigation of penalty, and may thus be 

properly excluded. Hence, he asserts, his counsel performed adversely, as the 

result of their conflict, by failing to raise a relevance objection to his testimony.

As Lancaster itself observed, however, that decision is inapposite. There, 

the defendant, ostensibly offering testimony in mitigation, sought to invoke 

political and racial considerations beyond his own case by comparing his 

―  ̳wrongful[ ] convict[ion]‘ ‖ to that of Mumia Abu-Jamal, by suggesting that 

African-American men who stand up and fight for their rights are labeled 

―  ̳crazy,‘ ‖ and by asserting that ―  ̳[t]hey experiment on black people.‘ ‖ 

(Lancaster, supra, 41 Cal.4th 50, 101.) The trial court sustained the prosecutor’s

relevance objections to this testimony. We found no error, holding that the 

defendant‘s assertions impermissibly strayed beyond the pertinent factors in 

mitigation, i.e., the circumstances of his own offense and his own character and 

background. (Id., at pp. 101-102, & cases cited.)

In doing so, Lancaster rejected the defendant‘s reliance on Webb‘s 

statement that ―  ̳a defendant‘s absolute right to testify cannot be foreclosed or 

censored based on content.‘ ‖ (Lancaster, supra, 41 Cal.4th 50, 101-102, quoting 

Webb, supra, 6 Cal.4th 494, 535.) We indicated that ―[this] statement must be 

understood in context; it addressed Webb‘s contention that the trial court should 
45

not have allowed him to testify in favor of a death sentence.‖ (Lancaster, supra, at 

p. 102.)13 Lancaster thus made clear its holding did not undermine Webb‘s 

premise that the defendant does have the right to proffer such testimony, even over 

his counsel‘s objections. Defendant‘s claim must be rejected.14

c. Competence to stand trial.

Defendant urges his counsel‘s conflict resulted in their failure to ensure that 

he was not incompetent when he entered his ―slow plea,‖ when he was tried on the 

issue of penalty, and when he ―effectively stipulate[d]‖ to the death penalty by 

presenting no mitigating evidence or argument and by taking the stand to agree he 

deserved execution. He asserts that his mental and emotional condition 

deteriorated seriously before and during the penalty proceedings as a result of the 

―draconian‖ conditions of his incarceration, that his behavior made this 

deterioration obvious, and that his counsel expressly realized his worsening mental 

and emotional state was interfering with his ability to assist in his defense. 

Nonetheless, he observes, his counsel assiduously avoided claiming he was 

incompetent. They did so, defendant posits, because their concerns about their 

personal involvement in the Nguyen murder conspiracy motivated them to curry 

favor with prosecutors by ensuring that defendant‘s penalty trial would not be 

postponed, and that he would promptly and predictably be sentenced to death. 

 

13 The quoted sentence was followed by a statement that ―[t]he relevance of 

[the defendant‘s testimony in Webb] was not challenged.‖ (Lancaster, supra, 

41 Cal.4th 50, 102.) But this remark did not imply that defense counsel may raise 

such an objection against his own client‘s voluntary testimony.

14 For similar reasons, we also find no merit to defendant‘s related argument 

that the trial court had a sua sponte duty to prevent defendant‘s testimony.
46

Defendant‘s argument in this regard is closely intertwined with his related 

claim that, based on the information available to it, the trial court erred by failing, 

sua sponte, to declare a doubt of his competence, and to order a hearing on that 

issue. Neither contention has merit.

i. Factual background.

The incompetence-related claims stem from the following facts: From the 

moment of his federal arrest, defendant had been held in federal administrative 

segregation, with severe limitations on his communications privileges, under the 

terms of 28 Code of Federal Regulations part 501.3 (hereafter section 501.3). This 

provision authorizes the United States Attorney General to specify such conditions 

for a federal prisoner or detainee whose communications would present a 

substantial risk of death or serious bodily injury to persons. Defendant‘s federal 

plea agreement included his stipulation that such conditions would continue for 

the duration of his federal prison term.

After his federal conviction, defendant was kept in federal custody, at the 

Los Angeles Metropolitan Detention Center (MDC), under section 501.3 

conditions, pending disposition of the instant capital murder charges. Control over 

his privileges resided with the federal district court. While he was housed in the

MDC, and in violation of prior federal court orders, defendant was found in 

possession of a pen and pencils, and a number of forbidden written 

communications from defendant to other federal and state prisoners were 

intercepted. Certain of these communications included threats against the 

undercover officer who was instrumental in his federal conviction and an inmate 

in the Orange County Jail.

As a result of these incidents, the federal court in January 2000 imposed 

additional restrictions on defendant‘s already severe conditions of confinement. 
47

Defendant was again prohibited from possessing writing materials; was essentially 

denied contact with other inmates and most prison personnel; was forbidden 

telephone communications except with counsel and, to a limited extent, with an 

elderly grandmother; and was allowed no visitors except his counsel and an aunt. 

As implemented by MDC staff, these restrictions resulted in defendant‘s 

placement in a sealed single cell, without radio, television, computer, or general 

(nonlegal) reading material. Two surveillance cameras kept constant watch on the 

cell‘s interior, and the cell‘s lights remained on 24 hours a day. For fear defendant 

would use his cell toilet as a means of inmate communication, he was not allowed 

to flush the toilet; he was required to summon a guard to perform this task.

Defendant‘s counsel labored repeatedly, in several fora, and with limited 

success, to obtain relief from these restrictions. In these efforts, counsel insisted 

that while defendant had not become incompetent, the isolation, stress, and 

sensory deprivation of his confinement were causing his emotional and mental 

condition to deteriorate, thus interfering with defense preparation for the trial.

As early as July 23, 1999, the day defendant entered his ―slow plea‖ on 

guilt and the special circumstance, counsel advised the court of defendant‘s 

isolation and restrictions at the MDC, alluding to the ―horrendous‖ emotional 

effects of these conditions. On July 30, 1999, counsel moved to continue the 

penalty trial date, then scheduled for August 9, 1999, to late September or early 

October 1999. Among other reasons, the written motion pointed to defendant‘s 

severe confinement conditions as then in effect, noting that ―[t]his intensive 

confinement and isolation has a very negative impact on his mental health,‖ 

―interfere[s] with [his] ability to organize his thoughts[,] and results in very hostile 

emotion.‖

On October 8, 1999, the court held a hearing to determine what issues 

required resolution before commencement of the penalty trial, then scheduled for 
48

October 18. Among the matters addressed on October 8 were counsel‘s 

difficulties in transporting defendant‘s father and uncle from Vietnam, and 

courtroom security measures, including the possibility of physical restraints on 

defendant and screening procedures for other persons entering the courtroom. 

After discussion, the court announced a tentative decision that it would not 

―wand‖ prospective jurors, but would ―wand‖ everyone else, i.e., ―anybody that 

doesn‘t have a juror band,‖ before allowing them to enter.

At this point, defendant interrupted, insisting that if ―you wand my people, 

you are going to wand everybody,‖ and that the court should not demonstrate 

―prejudice[ ]‖ by ―separat[ing] my side from their side and all that other shit.‖ 

When the court repeated that it intended to ―wand‖ everybody who came into the 

gallery, i.e., observers, defendant said, ―Fuck it, don‘t wand anybody. If you have 

a problem with me, say so.‖ When the court responded that it had no problem, 

defendant continued, ―I have done what I need to this court, and this court is going 

to rush me into this, what kind of bullshit is that? Fucking nothing is going to be 

done on the 18th, if we are going to say anything . . . .‖ When the judge told 

defendant to ―get it out of your system,‖ defendant retorted, ―Play fucking games 

and we will play fucking games.‖ At a subsequent hearing on October 18, 1999, 

after granting a defense motion to continue the trial, the court warned defendant 

that further outbursts like the one on October 8 would result in his removal from 

the courtroom for the duration.

On February 4, 2000, counsel informed the court of the increased federal 

confinement restrictions imposed in January. Counsel indicated that although 

defendant was psychologically ―tough‖ and ―strong,‖ there was concern about the 

impact on him of ―this virtual total isolation and lack of stimulation.‖

On February 25, 2000, the trial court attempted several times to obtain 

defendant‘s time waiver so the penalty trial could be continued from March 13, 
49

2000, to April 3, 2000. Each time, defendant professed not to understand and said 

he needed time to talk to his lawyers. The court said ―[g]o ahead,‖ noting that 

defendant‘s principal counsel, Peters, was present. However, defendant insisted 

Peters was only one of his attorneys and indicated he ―need[ed] two.‖ During the 

proceeding, Peters explained that defendant ―is very agitated this morning,‖ likely 

because of the stress of his isolated confinement. Counsel asserted that 

defendant‘s condition ―interferes with the ability to deal with him on a rational 

basis, but I am not saying he is 1368 [i.e., incompetent], if he was, I would tell 

you, of course, my obligation.‖15

On March 2, 2000, the trial court held an Evidence Code section 402 

hearing on defendant‘s conditions of confinement and their effect on penalty trial 

preparation. Among other things, the court heard testimony from Dr. Thomas, the 

clinical psychologist retained by the defense to assist in determining defendant‘s 

competency and to help develop mitigating penalty evidence.

Assessing a recent visit with defendant, Dr. Thomas indicated that, because 

of his disappointment over the harsh federal sentencing of Victoria Pham, the 

withdrawal of his privilege to communicate with Pham, and the other conditions 

of his current confinement, he had become emotionally unstable and distrustful of 

the defense team. According to Dr. Thomas, defendant was ―alternately enraged 

and kind of irrational,‖ and his ―emotional lability‖ was ―impairing the process of 

the defense all the way around.‖ Dr. Thomas cautioned that defendant ―was 

certainly not out of touch with reality at all, and certainly not unable to discuss,‖

but she agreed with defense counsel that ―some aspects of this custodial situation 

 

15 The reference is to section 1368, which sets forth the circumstances in 

which trial proceedings must be suspended pending a determination of the 

defendant‘s mental competence.
50

are causing [defendant‘s] emotions . . . , on a too frequent basis, to override his 

judgment.‖

Dr. Thomas acknowledged that defendant was intelligent, a violent 

sociopath, and a security risk whose own threats and rule violations had prompted 

the current restrictions. Indeed, she agreed with the prosecutor that, in his anger 

and frustration, defendant had ―articulated feelings [of] wanting to kill people . . . 

includ[ing] prosecutors, witnesses, judges, [and] the lieutenant at the holding 

facility.‖ Nonetheless, she opined that a continuation of the current confinement 

conditions would cause defendant‘s ―ability to think clearly . . . to diminish,‖ that 

―it is not going to get any better,‖ and that she was ―unable to move forward at this 

time‖ with her work for the defense. Later that same day, Attorney Peters 

represented in federal court that defendant was ―not incompetent, but he‘s 

bumping up against that sort of thing.‖

At a pretrial hearing on March 29, 2000, Attorney Peters noted that, though 

he was prepared to put on mitigating penalty evidence, ―we have for some time 

talked about putting no penalty evidence on.‖ However, Peters cautioned, 

defendant ―needs to be in a situation where he can make rational decisions about 

this‖ and indicated defendant‘s conditions of federal confinement were interfering 

with that process. Accordingly, Peters indicated, he intended to seek relief in the 

Ninth Circuit Court of Appeals from the federal district court‘s harsh confinement 

orders. Peters declared that ―if I wanted to play games I could declare him 1368 

or something, but I don‘t believe he is 1368, he is just in a very difficult situation.‖

On March 30, 2000, as promised, counsel filed a petition for writ of 

mandate and stay in the federal appeals court. (Hung Thanh Mai v. United States 

District Court, Central District of California (9th Cir. No. 0-70364).) The petition 

sought both an easing of defendant‘s confinement conditions and an order 

postponing the state capital penalty trial until his mental state improved and 
51

stabilized. The petition asserted that while defendant was not incompetent, the 

psychological effects of his confinement had led to ―a breakdown in the attorney 

client relationship,‖ and to counsel‘s inability ―to effectively communicate with 

[him]‖ The Ninth Circuit denied the petition on April 7, 2000.

On April 11, 2000, while selection of the penalty jury in the instant case 

was in progress, counsel filed a petition for mandate and stay in the California 

Court of Appeal, Fourth District, Division Three. (Hung Thanh Mai v. Superior 

Court of Orange County, G027290.) The petition sought a writ directing the trial 

court to order defendant‘s transfer from the MDC to the Orange County Jail 

pending the trial, and a restraint on further trial proceedings. According to the 

petition, defendant‘s conditions of federal confinement were so restrictive that he 

―has become increasing[ly] unstable, to a point where [he] is having great 

difficulty assisting his Counsel in the defense of his case.‖ The petition cited Dr. 

Thomas‘s conclusions that, due to the ―dehumanizing‖ circumstances of 

defendant‘s federal confinement, he ―is becoming extremely volatile‖ and ―cannot 

think clearly,‖ and that, as a consequence, Dr. Thomas could not complete her 

penalty phase work. The Court of Appeal denied the petition the same day.

Jury selection was completed on the afternoon of April 11, 2000, and a jury 

was sworn. Prior to adjournment, after the jurors had been dismissed for the day, 

the court stated it had reviewed allegations in the Ninth Circuit writ proceeding 

that defendant‘s confinement conditions had caused him to become mentally 

unstable, such that his psychologist and attorneys were unable to prepare him for 

trial. The court said it wished ―to note [its] observations for the record. The 

defendant has appeared in this courtroom on April 3rd, April 6th, April 10th, and 

April the 11th during jury selection. [¶] He has attentively followed roll call page 

by page. He has read questionnaires and reviewed prospective juror lists. He has 

made notes. He has appeared to consult with both his counsel concerning the lists 
52

and questionnaires. I note that he has assisted Mr. Peters [defense counsel] in the 

exercise of peremptory challenges. [¶] He has not given an appearance of being 

nervous or upset. On the contrary, he has appeared to be rather calm and collected 

during this four-day time frame.‖

Counsel responded that, as confirmed by Dr. Thomas, defendant was 

experiencing various physiological symptoms, that he was overreacting to the 

smallest difficulties, and that the frustration produced by his confinement 

conditions meant he ―can‘t be objective‖ in dealing with the defense team. 

Counsel also alluded to an ―outburst‖ that morning which had required a delay 

until counsel could ―calm [defendant] down.‖

On the other hand, counsel reiterated that ―if [defendant] was 1368, I‘d say 

that, I am not doing that because that would be a game, and I am not here to play 

games.‖ ―[A]ll we are saying,‖ counsel insisted, was that the harsh confinement 

conditions were ―bound to have an effect on somebody. Especially somebody 

facing the death penalty.‖

The next morning, April 12, 2000, the court noted, in a chambers 

discussion with counsel, that defendant had refused to come out of his cell at the 

MDC unless ordered by the court to do so. Once transported to Orange County 

and placed in the court‘s holding cell, the court observed, defendant ―has been so 

loud that you can almost hear it in the courtroom.‖

Defense Counsel Peters indicated that defendant ―has good reason to yell 

and scream,‖ but was now calm. Counsel said his experience was that ―[a]fter a 

point in time [defendant] is able to vocalize enough of his anger that he gets back 

to some sort of rationality.‖ Counsel indicated defendant was upset because, 

several days earlier, he had seen the court clerk give coffee to the victim‘s family 

members, which made him feel he was not on neutral ground, and was also irate 

because his federal jailors had reneged on a promise to provide his lunch. Counsel 
53

again indicated that defendant was not ―1368,‖ but was very upset and emotionally 

―volatil[e],‖ and had limited control over his behavior.

The court asked if defendant had complaints about a biased jury — a 

concern the bailiff had reported. Again the court indicated ―the record should 

reflect I sat there and watched him exercise 20 peremptories through his counsel.‖ 

Counsel said this was not the issue, and insisted that defendant was not trying to 

obstruct or delay. Counsel indicated that defendant well understood the reality of 

his legal situation and ―knows what the [probable] outcome is,‖ particularly since 

―we may put on no defense, and the evidence is overwhelming and awfully 

brutal.‖ According to counsel, this reality, and defendant‘s isolated confinement, 

were precisely why small problems like the lunch issue became ―magnified‖ and 

―drive [defendant] crazy.‖ The court admonished counsel to remind defendant of 

the court‘s prior warnings that it would not tolerate his ―disruptive conduct‖ and 

―foul language,‖ and that further outbursts or disruption would result in his 

exclusion from the trial.

Proceedings briefly resumed, but almost immediately, the court met with

counsel again in the hallway, out of defendant‘s presence. Defense Counsel Peters 

said defendant was concerned he might not be able to control himself in the 

courtroom, and had therefore asked to be shackled to prevent him from ―act[ing] 

out.‖ Peters explained that when defendant first met with counsel that morning, 

―he was talking how he was going to act up, that he had nothing to lose, which is 

true.‖ Peters indicated there appeared to be grounds to accede to defendant‘s 

wishes ―for his safety and my safety and [Cocounsel O‘Connell‘s] safety.‖ Still, 

Peters observed, while he did not ―think [shackling] would be extremely 

prejudicial,‖ he would try to dissuade defendant if he believed otherwise. The 

prosecutor indicated he had no objection to the request, and the court granted it, 

ordering that, while in court, defendant be restrained in ―Martin waist chains.‖
54

Defendant was brought into the courtroom, and the jurors were summoned. 

As the court began to speak to the jury, defendant interrupted to say, ―Next time 

you smile, throw a bigger smile my way.‖ The following colloquy ensued: ―THE 

COURT: Pardon me, Mr. Mai? [¶] THE DEFENDANT: I am speaking to the 

Burt family, they want to be smart asses. [¶] THE COURT: Don‘t be speaking to 

the Burt family. [¶] THE DEFENDANT: That‘s right.‖

As the court resumed addressing the jury, defendant again interrupted, 

stating that he ―need[ed] a break‖ and ―need[ed] to say something.‖ When the 

court told him to be quiet, defendant implored Defense Counsel Peters to ―speak 

up for me.‖ After a discussion with defendant, Peters explained to the court that 

defendant ―just wanted to be assured it was your order that he be here this 

morning.‖ When the court responded that it had so ordered, defendant asked, ―If 

you have the power to do that, why don‘t you have the power to do anything 

else?‖ The court advised defendant his counsel was speaking and warned 

defendant not to disrupt, whereupon defendant requested that Peters ―ask [the 

court] if you have the power to do that, why don‘t you have the power to do other 

stuff?‖ Peters indicated he would make such an inquiry ―[a]t the appropriate 

time,‖ and the court warned defendant again against further disruption.16

A short while later in the morning of April 12, 2000, the prosecutor was 

outlining for the jury the evidence he expected to produce about the incident on 

the morning of Officer Burt‘s murder in which defendant brandished a handgun at 

another driver on the freeway. Defendant interrupted to say, ―And I would do it 

 

16 Defendant‘s question is sensibly understood as asking why, if the court had 

the authority to order him transported from the MDC to attend the trial, it did not 

also have the authority to order that his conditions of confinement in that facility 

be relaxed.
55

again.‖ The court ordered defendant to face toward the bench, and defendant 

responded, ―Right.‖

On April 17, 2000, defendant disrupted the testimony of Mark Baker, who 

stated that, in September 1995, he witnessed a violent domestic altercation 

between defendant and Victoria Pham outside their apartment. When Baker 

testified that during the struggle with Pham, defendant hit her with his fist and she 

fell to her knees, defendant interrupted to shout, ―Shut the fuck up, I think you are 

full of shit. If I fucking hit [her] with a fist, I would have knocked her fucking ass 

on the floor. What are you talking about?‖ When the court attempted to admonish 

defendant, he muttered, ―You want to say something, speak the fucking truth,‖ and 

―[b]ullshit.‖

Baker then testified that when he tried to stop the fight by telling defendant 

to ―  ̳[k]nock it off, you motherfucker,‘ ‖ defendant went into his apartment and 

returned with a machine gun. At this point, defendant interrupted Baker‘s 

testimony to declare, ―I should have killed your fucking ass is what I should have 

done, waste my goddamn time.‖

Shortly thereafter, automobile salesman Bachand testified that in June 

1996, defendant and an accomplice abducted him at gunpoint during the test drive 

of a Honda Prelude. As noted above, defendant interrupted to shout that 

Bachand‘s testimony was ―bullshit,‖ because defendant had no incentive to steal a 

―piece of shit Honda,‖ and that if defendant had been one of the carjackers, he 

would have ―wasted [Bachand‘s] fucking ass.‖ Moments later, when Bachand 

said defendant had warned that he and his companion were ―Asian, Vietnamese 

Mafia,‖ defendant interrupted to mutter, ―Asian Mafia, stupid fuck.‖ The court 

admonished defendant against further disruptions. Nonetheless, as Bachand 

continued his testimony, defendant overturned the counsel table and was removed 

to a detention area by the bailiffs.
56

On April 19, 2000, after the prosecution rested, defendant confirmed on the 

record that, despite his counsel‘s advice and wishes, he declined to present any 

mitigating evidence, opposed any effort by his counsel to speak in his behalf, and 

intended to testify about his opinion of the appropriate penalty. The court warned 

defendant that he was acting unwisely, that he could not appeal a resulting death 

sentence on grounds of incompetence or attorney error, and that these decisions 

were tantamount to suicide. In response, defendant insisted that he was ―not 

suicidal,‖ felt he was competent, and was ―just doing the right thing that I feel

that‘s necessary.‖

Defendant confirmed he would ―act out‖ if counsel exercised their

prerogative to present an argument, though ―[i]t is not something I want to do.‖ In 

response to a query from the court, defendant indicated he assumed his 

understanding with his counsel was ―pretty firm.‖ He iterated that ―I just feel this 

is right, and I am hoping my lawyer agrees to that.‖ On this basis, as noted above, 

counsel announced he would accede to defendant‘s wishes.

ii. Applicable law.

―  ̳Both the due process clause of the Fourteenth Amendment . . . and state 

law prohibit the state from trying or convicting a criminal defendant while he or 

she is mentally incompetent. (§ 1367; Drope v. Missouri (1975) 420 U.S. 162, 

181; Pate v. Robinson (1966) 383 U.S. 375, 384-386; People v. Ramos (2004) 

34 Cal.4th 494, 507.) A defendant is incompetent to stand trial if he or she lacks a 

―  ̳sufficient present ability to consult with his lawyer with a reasonable degree of 

rational understanding — [or lacks] . . . a rational as well as a factual 

understanding of the proceedings against him.‘ ‖ (Dusky v. United States (196[0]) 

362 U.S. 402, 402; see also Godinez v. Moran (1993) 509 U.S. 389, 399-400; 
57

People v. Stewart (2004) 33 Cal.4th 425, 513.)‘ (People v. Rogers (2006) 

39 Cal.4th 826, 846-847.)‖ (People v. Lewis (2008) 43 Cal.4th 415, 524 (Lewis).)

Under both the federal Constitution and state law, the trial court must 

suspend criminal proceedings and conduct a competency hearing if presented with 

substantial evidence that the defendant is incompetent. (People v. Elliott (2012) 

53 Cal.4th 535, 583 (Elliott); People v. Ary (2011) 51 Cal.4th 510, 517; People v.

Rogers, supra, 39 Cal.4th 826, 847 (Rogers).) Substantial evidence of 

incompetence exists when a qualified mental health expert who has examined the 

defendant states under oath, and ―with particularity,‖ a professional opinion that 

because of mental illness, the defendant is incapable of understanding the purpose 

or nature of the criminal proceedings against him, or of cooperating with counsel. 

(Lewis, supra, 43 Cal.4th 415, 525; People v. Stankewitz (1982) 32 Cal.3d 80, 92.)

The defendant‘s demeanor and irrational behavior may also, in proper 

circumstances, constitute substantial evidence of incompetence. (Rogers, supra, 

39 Cal.4th 826, 847.) However, disruptive conduct and courtroom outbursts by 

the defendant do not necessarily demonstrate a present inability to understand the 

proceedings or assist in the defense. (E.g., Elliott, supra, 53 Cal.4th 535, 583; 

Lewis, supra, 43 Cal.4th 415, 525-526; People v. Medina (1995) 11 Cal.4th 694, 

735 (Medina).)

Counsel‘s assertion of a belief in a client‘s incompetence is entitled to some 

weight. But unless the court itself has declared a doubt as to the defendant‘s 

competence, and has asked for counsel‘s opinion on the subject, counsel‘s 

assertion that his or her client is or may be incompetent does not, in the absence of 

substantial evidence to that effect, require the court to hold a competency hearing. 

(§ 1368; Lewis, supra, 43 Cal.4th 415, 525; People v. Rodrigues (1994) 8 Cal.4th 

1060, 1111-1112; People v. Howard, supra, 1 Cal.4th 1132, 1163-1164.)
58

By the same token, and absent a showing of ―incompetence‖ that is 

―substantial‖ as a matter of law, the trial judge‘s decision not to order a 

competency hearing is entitled to great deference, because the trial court is in the 

best position to observe the defendant during trial. (Rogers, supra, 39 Cal.4th 826, 

847.) ―  ̳An appellate court is in no position to appraise a defendant‘s conduct in 

the trial court as indicating insanity, a calculated attempt to feign insanity and 

delay the proceedings, or sheer temper.‘ [Citations.]‖ (People v. Danielson

(1992) 3 Cal.4th 691, 727.)

iii. Discussion.

Here, the record discloses no basis to conclude that counsel, driven by a 

conflict of interest, avoided seeking a competency hearing even though they 

believed defendant was incompetent. Nor are there grounds to infer that 

unconflicted counsel would likely have sought such a hearing. Indeed, as we 

explain hereafter, the record contains no substantial evidence of defendant‘s 

incompetence. Reasonably interpreted, it suggests counsel had a difficult client 

whose own calculated acts had resulted in his severe conditions of confinement, 

and whose frustration with the terms of his custody contributed to his anger, 

emotional volatility, distrust of counsel, and frequent lack of cooperation with 

them.

Counsel worked assiduously to ease these custodial conditions, urging in 

several fora, and by vigorous advocacy, that the resulting emotional toll on 

defendant was seriously interfering with defense efforts. But the record does not 

indicate that, contrary to counsel‘s consistent representations, they knew or should 

have known defendant‘s confinement had rendered him mentally unable, rather 

than emotionally unwilling, to help with his defense. We have frequently 
59

recognized the distinction, as counsel apparently did, and have made clear that an 

uncooperative attitude is not, in and of itself, substantial evidence of 

incompetence. (See, e.g., Elliott, supra, 53 Cal.4th 535, 583; Lewis, supra, 

43 Cal.4th 415, 526; Medina, supra, 11 Cal.4th 694, 735; People v. Davis (1995) 

10 Cal.4th 463, 527-528.)

Significantly, the defense psychologist, Dr. Thomas, never declared ―with 

particularity‖ that, as the result of a mental disorder or disability, defendant was 

unable to understand the proceedings or assist rationally in his defense. On the 

contrary, she acknowledged defendant‘s intelligence, indicated he was ―not out of 

touch with reality at all,‖ and agreed he was ―certainly able to discuss‖ his legal 

situation. She suggested simply that the emotional instability stemming from his 

custodial status sometimes caused him to be ―kind of irrational,‖ affected his 

―ability to think clearly,‖ and made it difficult to obtain his cooperation.

Counsel made similar representations in court, additionally noting that 

defendant understood the reality of his legal situation, and that once allowed to 

fully vocalize his anger and frustration, he was usually able to calm down and 

behave rationally. Counsel‘s concession that these circumstances did not amount 

to mental incompetence does not indicate counsel performed adversely as the 

result of a conflict of interest.

Defendant‘s ―self-defeating‖ outbursts in court also do not constitute 

evidence that should and likely would have persuaded competent, unconflicted 

counsel to seek a competency hearing. These episodes demonstrated that 

defendant was often angry and resentful. But, as noted above, disruptive behavior 

is not substantial evidence of incompetence unless, by its particular nature, it casts 

doubt on the defendant‘s ability to assist in his or her defense. (E.g., Elliott, 

supra, 53 Cal.4th 535, 583; Medina, supra, 11 Cal.4th 694, 735.) Here, aside 
60

from one incident of momentary confusion over a time waiver, defendant‘s 

courtroom demeanor, words, and conduct never indicated he did not understand 

the proceedings or was actually unable to assist his lawyers.

Indeed, defendant‘s anger and resentment were often connected in an 

understandable way to the trial proceedings. Thus, defendant protested when he 

thought he was being rushed to trial, or worried that the court‘s security measures 

might discriminate against ―my people,‖ or feared that court personnel were too 

solicitous of the victim‘s family, or reacted to witnesses who were giving 

damaging testimony against him. Defendant appeared capable of speaking up 

when he felt the need to consult with his lawyers in light of courtroom 

developments, and, at one point, he asked pertinent questions about the court‘s 

authority over the conditions of his confinement.

Moreover, after reviewing allegations that the conditions of defendant‘s 

confinement were seriously affecting his mental and emotional state, the trial court 

made clear on the record that its observations of defendant did not indicate 

incompetence. In particular, the court noted that defendant had calmly, but 

actively, participated in the extended process of jury selection, reviewing 

questionnaires and juror lists, making notes, and assisting counsel in the exercise 

of peremptory challenges. In sum, certain of defendant‘s behavior, as disclosed by 

the record, was rude, disruptive, and even menacing, but this behavior afforded no 

substantial grounds upon which unconflicted counsel should and likely would 

have pursued a claim of incompetence.

We reach a similar conclusion with respect to defendant‘s consistent and 

firmly stated intention to dispense with mitigating evidence, present no argument, 

and invite the jury to impose a judgment of death. A wish for the death penalty, 

and an insistence on presenting no penalty defense, are not, by themselves, 

evidence of incompetence sufficient to trigger competency proceedings. (E.g., 
61

People v. Blair (2005) 36 Cal.4th 686, 718; People v. Ramos, supra, 34 Cal.4th 

494, 509.) Defendant made clear he understood the consequences of his decision, 

and he expressed his reasons coherently, even eloquently, to the jury. He 

explained he was motivated by reluctance to beg in court for sympathy or pity, by 

his personal code of ―two eyes for every eye,‖ and by his belief that, as ―part of 

the game,‖ the time had come to pay in full for his murder of Officer Burt. These 

well-stated moral sentiments in no way belied a mental ability to understand the 

proceedings and to assist in defending them. Defendant‘s attitude is not 

substantial evidence he was incompetent. Accordingly, it provides no ground to 

conclude that, as the result of a conflict of interest, counsel omitted to pursue a 

potentially valid incompetency claim.17

 

17 Defendant notes Victoria Pham‘s claim that defendant became more violent 

after a near-fatal car accident, causing the defense psychologist to suspect brain 

damage. Citing Pate v. Robinson, supra, 383 U.S. 375, defendant urges that 

evidence of a head injury with subsequent irrationality and behavioral changes 

raises a ―red flag‖ regarding competence, and constitutes, as a matter of law, 

sufficient evidence to require a competency hearing. But the scant evidence here 

does not remotely compare with the evidence found in Pate to raise a bona fide 

doubt of competence. Pate, convicted of killing his common law wife during an 

irrational episode, had a history of severe disturbance dating back to a childhood 

accident in which a brick fell on his head. His turbulent history included frequent 

episodes of bizarre behavior, hallucinations, and delusions, a stay in a psychiatric 

hospital, and the prior killing of his 18-month-old son, after which he tried to 

commit suicide. At his trial, four witnesses testified, without contradiction, that he 

was insane. This evidence, in combination, persuaded the high court that Pate 

should have received a full inquiry into his competence.

Here, by contrast, there is no real indication that defendant‘s sociopathic 

behavior, whatever its cause, had any logical connection to legal incompetence. 

Moreover, the possibility of injury-related brain damage does not, in and of itself, 

suggest inability to meet the legal standard for competence to stand trial. (See 

Lewis, supra, 43 Cal.4th 415, 525; People v. Leonard (2007) 40 Cal.4th 1370, 

1415-1416.) Though offered for a different purpose, the testimony of the

psychologist who suspected defendant‘s accident might have caused brain damage 

(Footnote continued on next page.)
62

For similar reasons, we reject defendant‘s alternative argument that the trial 

court had a sua sponte duty to declare a doubt of his competence, and to initiate 

competency proceedings. As we have explained, the record discloses no 

substantial evidence that defendant was mentally incompetent. No qualified 

witness so testified; counsel‘s various descriptions of defendant‘s mental and 

emotional state did not equate to incompetence; and defendant‘s observable 

actions and decisions did not necessarily suggest he lacked the requisite ability to 

participate rationally in his defense. Moreover, the trial court‘s day-to-day 

observation of defendant‘s demeanor and conduct, including his episodes of 

disruptive behavior, did not cause the court to doubt his competence — a fact the 

court felt obliged to place on the record not once, but twice. Under these 

circumstances, the court did not err by taking no action to determine whether 

defendant was competent.

d. Advice to defendant.

Finally, defendant points to comments by Attorney Peters, at various points 

in the record (never in the jury‘s presence), expressing the pessimistic view that 

there was little realistic hope at either the guilt or penalty stages. Defendant 

characterizes certain of these remarks as suggesting counsel‘s personal view that 

defendant deserved the death penalty. Such comments, defendant asserts, are 

circumstantial evidence that counsel, burdened by their conflict of interest, advised 

 

(Footnote continued from previous page.)

suggested strongly that he was not mentally unable to understand the proceedings 

and assist rationally in his defense. Nothing in Pate convinces us that effective, 

unconflicted counsel should and likely would have used the information about 

defendant‘s auto accident to raise a reasonable doubt of his competence.
63

defendant incompetently by overstating the hopelessness of his case, by 

suggesting he had no viable defenses,18 and by urging him to submit the guilt and 

special circumstance issues and forego the presentation of mitigating evidence and 

argument at the penalty phase. Further, defendant asserts, Attorney Peters violated 

his duties as an advocate by publicly stating his personal view that defendant 

deserved the death penalty. (Citing, e.g., U.S. v. Swanson (9th Cir. 1991) 943 F.2d 

1070, 1074; Osborn v. Shillinger (10th Cir. 1988) 861 F.2d 612, 626; State v. 

Holland (Utah 1994) 876 P.2d 357, 358-361 & fn. 3.)

We are unconvinced. First, as defendant concedes, the record does not, for 

the most part, disclose what advice counsel privately imparted to him. If anything, 

however, the record indicates defendant himself insisted throughout the 

proceedings, for reasons he cogently explained to the penalty jury, that once he 

was brought to justice, his personal code of honor obliged him to pay for his 

murder of Officer Burt without any effort to seek sympathy or mercy in a court of 

law. The record also contains numerous indications that his attorneys did attempt 

to get him to change his mind,19 but that he virtually coerced them to agree to his 

wishes by threatening to engage in inflammatory disruptions before the jury if they 

tried to overrule him.

Second, as counsel knew, there was indeed overwhelming evidence that 

defendant gunned down a CHP officer during a routine traffic stop, ultimately 

executing the officer by firing a bullet into the victim‘s head at close range while 

 

18 In reality, defendant asserts, he had a strong defense to the peace officer 

special circumstance, on grounds he was stopped and detained illegally by Officer 

Burt. He further urges that a fully developed mitigating case, based on his escape 

from Vietnam, his cultural difficulties in adjusting to life in the United States, and 

his possible brain damage, might well have persuaded a jury to spare his life.

19 As Attorney Peters stated at the hearing on the automatic motion to modify 

the death verdict, ―we spent hundreds of hours talking about that topic.‖
64

he lay helpless. Counsel could also reasonably conclude that a fact finder, 

whether court or jury, would likely be unpersuaded by a special circumstance 

defense that questioned the legality of the traffic stop. And, though a death 

judgment was not inevitable, neither the facts of the capital crime nor the violent 

and obstreperous personality defendant displayed during the penalty trial were 

likely to engender sympathy with a jury deciding the issue of life or death.

Under these difficult circumstances, the record discloses no ground to 

conclude that counsel rendered adverse or deficient assistance if they advised 

defendant to preserve credibility at a penalty trial by allowing his counsel to tell 

the penalty jury he ―had done the right thing‖ by not contesting guilt. Similarly, if 

counsel suggested defendant should reserve for appeal the argument that the 

preliminary hearing transcript contained insufficient evidence he was illegally 

detained by the murder victim, this advice, too, was not adverse or incompetent. 

Nor, on the basis of the record before us, did counsel perform adversely if they 

offered the candid and reasonable prediction that a death judgment was likely, 

regardless of any case in mitigation that could be put forward.

Finally, we do not interpret Attorney Peters‘s comments on the record as 

concessions that he personally believed defendant deserved to die. Rather, they 

appear as attempts, on behalf of a client who had resisted all efforts to portray him 

sympathetically, to urge that, in the end, he was at least taking responsibility for 

his actions, did not seek to avoid the consequences of his murder of Officer Burt, 

and thus was not wholly irredeemable.

For all the reasons set forth above, we conclude the record fails to 

demonstrate that defendant‘s trial counsel performed adversely as the result of a 

conflict of interest, or that they otherwise rendered constitutionally inadequate 

assistance. As a result, we need not, and do not, address defendant‘s extensive 

argument that a ―presumption of prejudice‖ should apply to counsel‘s adverse 
65

performance arising from the type of conflict defendant asserts here. (See, e.g., 

Mickens, supra, 535 U.S. 162, 171-174; Doolin, supra, 45 Cal.4th 390, 418, 

fn. 20.)20

B. Sufficiency of special circumstance evidence.

Defendant contends that, in violation of ―state law and the Eighth and 

Fourteenth Amendments,‖ the evidence supporting the special circumstance 

finding that he intentionally killed a police officer engaged in the performance of 

duty was legally insufficient. We disagree.

―In addressing a challenge to the sufficiency of the evidence supporting a 

conviction, the reviewing court must examine the whole record in the light most 

favorable to the judgment to determine whether it discloses substantial evidence 

— evidence that is reasonable, credible and of solid value — such that a 

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. 

[Citation.] The appellate court presumes in support of the judgment the existence 

of every fact the trier could reasonably deduce from the evidence. [Citations.]‖ 

(People v. Kraft (2000) 23 Cal.4th 978, 1053; see also, e.g., People v. Prieto

(2003) 30 Cal.4th 226, 245; People v. Farnam (2002) 28 Cal.4th 107, 142-143.) 

In the instant case, these inferences are aided by the presumption, applicable to 

police officers except in the case of a warrantless arrest, that official duty was 

regularly performed. (Evid. Code, § 664; see, e.g., Davenport v. Department of 

Motor Vehicles (1992) 6 Cal.App.4th 133, 141.)

 

20 As the high court made clear in Mickens, and as defendant acknowledges, a 

―presumption of prejudice‖ may apply to certain kinds of attorney conflicts, 

including the active representation of competing interests, but even then, the 

presumption does not apply until the defendant has demonstrated adverse 

performance related to the conflict. (See Mickens, supra, 535 U.S. 162, 171-174.)
66

As indicated above, the preliminary hearing evidence indicated that the 

traffic stop occurred in the early evening of July 13, 1996. Defendant‘s associate, 

Chang Nguyen, testified that defendant gave him the following account of the 

circumstances leading to the victim‘s death: Officer Burt stopped defendant for 

failure to have his headlights on. Defendant did not show the officer his own 

driver‘s license, but instead gave a false name. The officer learned that the 

driver‘s license in that name was suspended. He thereupon advised defendant he 

would have to tow the car, but first must perform an inventory search of the 

vehicle. The officer opened the car‘s trunk, looked inside, and told defendant he 

was under arrest. Defendant, aware that he had crime evidence in the trunk and 

determined not to leave a witness to a third strike offense, then proceeded to shoot 

the officer.

Defendant‘s insufficient-evidence claim proceeds on the premise that, in 

order for the peace officer special circumstance to apply, the officer must have 

been performing his duties ―lawfully‖ at the time he was killed. (See pt. A.4.a, 

ante.) Defendant does not seriously argue the record lacks evidence the officer‘s 

actions during the traffic stop were lawful. However, he urges the record of the 

preliminary hearing, on which the special circumstance finding was made, fails to 

include evidence from which a rational fact finder could conclude beyond 

reasonable doubt that Officer Burt had legal cause to stop and detain him at the 

outset.

Because Officer Burt‘s death at defendant‘s hands prevented the victim 

from explaining, in sworn testimony, the reason and basis for the stop, the only 

evidence on that issue came from Nguyen, who testified — without objection from 

the defense — that defendant said ―he was driving and he thought he had his light 

[sic] on, but he got pulled over by [a] California Highway Patrolman for not 

having his light [sic] [on].‖ Defendant‘s statement to Nguyen was amply 
67

sufficient to allow a fact finder — here, a learned trial judge — to infer, first, that 

failure to have his headlights on was the reason defendant was stopped; second, 

that he understood he should have had his lights on; and third, that he actually did 

not have them on. No evidence disputed or contradicted these inferences.21

Other evidence also supports them. In 1996, as now, the law required a 

motor vehicle‘s headlights to be on when the vehicle was driven between one-half 

hour after sunset and one-half hour before sunrise. (Veh. Code, §§ 280, 24400, 

38335.) Bernice Sarthou testified at the preliminary hearing that she observed the 

traffic stop involving defendant and Officer Burt as she pulled into an adjacent 

 

21 Defendant concedes his account to Nguyen of his own actions leading to 

the shooting of Officer Burt were declarations against interest, and were thus not 

made inadmissible for their truth by the hearsay rule. (Evid. Code, § 1230.) 

However, he asserts that Officer Burt‘s ―no headlights‖ statement to him, as 

related to Nguyen, was not offered by the prosecution for its ―truth,‖ but for the 

―non-hearsay purpose of explaining and putting into context [defendant‘s] 

admissions.‖ This claim is based on the prosecutor‘s response to a defense 

―multiple hearsay‖ objection to later testimony by Nguyen that Officer Burt 

advised defendant he would have do an inventory search on defendant‘s car. The 

prosecutor said he understood that ―the layer from the officer to the defendant is 

not for the truth of the matter.‖ The court agreed, indicating that evidence of 

Officer Burt‘s ―inventory search‖ statement was presented to make the defendant‘s 

admissions ―meaningful,‖ and overruled the objection. However, as noted, the 

defense made no hearsay objection when Nguyen testified defendant said that 

Officer Burt stopped him because his headlights were off. Moreover, the hearsay 

rule did not make inadmissible Officer Burt‘s statement as evidence of his intent 

and purpose — i.e., his state of mind — in stopping defendant. (Evid. Code, 

§ 1250, subd. (a)(2).) And to the extent Officer Burt‘s out-of-court ―no 

headlights‖ statement was ―testimonial‖ (see Crawford v. Washington (2004) 

541 U.S. 36), the doctrine of ―forfeiture by wrongdoing‖ precludes defendant from 

claiming his constitutional rights were violated because he was unable to confront, 

in court, an out-of-court declarant whom he killed, as the undisputed evidence 

shows, to prevent the declarant from appearing as a witness against him. (See 

Giles v. California (2008) 554 U.S. 353, 376-377.)
68

restaurant around 8:30 p.m. on July 13, 1996. As noted above (ante, fn. 8), we 

have taken judicial notice of the indisputable fact that sunset occurred in Fullerton 

on that date at 8:04 p.m. On this evidence, a rational fact finder could infer that, at 

the time the stop occurred, dusk was approaching, and that Officer Burt thus 

reasonably concluded the law required defendant‘s headlights to be on.

Defendant stresses Sarthou‘s insistence, on both direct and crossexamination, that when she first observed defendant and Officer Burt, she was 

wearing her sunglasses because the sun had not yet set. But this testimony 

contradicted Sarthou‘s equally consistent time estimate, as compared with the 

actual time of sunset on July 13, 1996. It was also inconsistent with defendant‘s 

statement to Nguyen that ―he thought he had his light[s] on.‖ As between 

Sarthou‘s contradictory recollections, and considering the totality of relevant 

evidence, the fact finder was not obliged to credit Sarthou‘s ―sun was still up‖ 

testimony. Instead, the fact finder could believe her assertion she first observed 

the traffic stop at a time that was, in fact, approximately one-half hour after sunset. 

There was sufficient evidence to support a determination that Officer Burt acted 

lawfully when he stopped defendant‘s vehicle on July 13, 1996.22

 

22 Evidence adduced at the penalty trial does not alter these conclusions. 

Sarthou testified, consistently with her preliminary hearing account, that she 

observed the traffic stop around 8:30 p.m. and was wearing sunglasses. Other 

witnesses to the traffic stop gave time estimates that varied between 8:00 p.m. and 

8:30 p.m. Eyewitness Benjamin Baldauf, who agreed 8:30 was ―about the right 

time frame,‖ also said the lighting was ―long on shadows, just before dark‖. 

A CHP dispatcher testified that he received a ―license check‖ call from Officer 

Burt around 8:30 p.m. 
69

C. Claim of biased juror.

Defendant urges that his rights under the Sixth, Eighth, and Fourteenth 

Amendments to the United States Constitution, and under article I, section 16 of 

the California Constitution, were violated by the seating of Juror No. 12, who, he 

asserts, was actually biased on the issue of penalty. Defendant acknowledges that 

his lawyers did not challenge Juror No. 12 for cause, use a peremptory challenge 

to excuse the juror,23 or express dissatisfaction with the jury as sworn. (E.g., 

People v. Carasi (2008) 44 Cal.4th 1263, 1290; People v. Bonilla (2007) 

41 Cal.4th 313, 339; People v. Hillhouse (2002) 27 Cal.4th 469, 487; People v. 

Crittenden (1994) 9 Cal.4th 83, 121 & fn. 4 (Crittenden).) Nonetheless, defendant 

contends the state is constitutionally disentitled to carry out a death judgment 

joined by a biased juror. Alternatively, he asserts that his counsel‘s failure to 

challenge Juror No. 12 for cause, or to use a peremptory challenge against this 

juror, constituted ineffective assistance. In any event, he insists the court should 

have excused the juror sua sponte.

However the issue is framed, we are unpersuaded by the merits of 

defendant‘s argument that Juror No. 12 demonstrated actual penalty bias. Hence, 

defendant‘s claim must be rejected.

―  ̳The state and federal constitutional guarantees of a trial by an impartial 

jury include the right in a capital case to a jury whose members will not 

automatically impose the death penalty for all murders, but will instead consider 

and weigh the mitigating evidence in determining the appropriate sentence. . . . If 

the death penalty is imposed by a jury containing even one juror who would vote 

automatically for the death penalty without considering the mitigating evidence, 

―the State is disentitled to execute the sentence.‖ [Citation.]‘ ‖ (People v. Boyette

 

23 It is undisputed that defendant exhausted his peremptory challenges.
70

(2002) 29 Cal.4th 381, 416 (Boyette), quoting People v. Weaver (2001) 26 Cal.4th 

876, 910 (Weaver).)

But strong views for or against the death penalty do not necessarily provide 

a basis to excuse a prospective juror on the ground of actual bias. Instead, ―  ̳the 

law permits a prospective juror to be challenged for cause [as biased on the issue 

of capital punishment] only if his or her views [on that subject] ―would  ̳prevent or 

substantially impair the performance of his [or her] duties as a juror‘ ‖ in 

accordance with the court‘s instructions and the juror‘s oath.‘ (People v. Blair

(2005) 36 Cal.4th 686, 741, quoting [Wainwright v. ]Witt [(1985)] 469 U.S. [412,] 

424.)‖ (People v. Martinez (2009) 47 Cal.4th 399, 425 (Martinez).) That a 

prospective juror might weigh the aggravating and mitigating evidence in light of 

his or her death penalty views is not necessarily a ground for exclusion. Opinions 

about the death penalty may disqualify a penalty juror only if they would prevent 

the juror from engaging in the weighing process and deliberating the issue of 

penalty. (E.g., Martinez, supra, at p. 427; People v. Stewart (2004) 33 Cal.4th 

425, 446.)

A prospective juror‘s responses on these issues may be conflicting or 

ambiguous, or may demonstrate understandable confusion about the complexities 

of death penalty law. Such responses do not necessarily require, or justify, a 

juror‘s excusal for bias. (E.g., Boyette, supra, 29 Cal.4th 381, 416; Weaver, supra, 

26 Cal.4th 876, 910; People v. Fudge (1994) 7 Cal.4th 1075, 1094.) And even 

jurors with very strong views about the death penalty are qualified to serve if they 

affirm they will set those views aside, as necessary, in favor of applying the law 

and instructions. (E.g., Martinez, supra, 47 Cal.4th 399, 431; Lewis, supra, 

43 Cal.4th 415, 488.)

Juror No. 12‘s answers on the juror questionnaire indicate he harbored 

strong pro-death views, both generally and about this particular case. On the other 
71

hand, he asserted his belief that he could set aside his feelings, follow the court‘s 

instructions, and be a fair and impartial juror.

In response to a question about how, if at all, he had become familiar with 

the case, Juror No. 12 indicated his wife‘s cousin was a Fullerton fireman who had 

been called to the shooting scene and tried to save Officer Burt. Asked what 

opinions, based on this information, he had formed about the appropriate sentence, 

Juror No.12 answered, ―My opinion — death sentence.‖ On the other hand, Juror 

No. 12 answered ―yes‖ to the question whether he could set aside his prior 

knowledge of the case and decide it on the evidence presented in court ―and the 

law given to you at the conclusion of the case.‖ To the question whether he could 

set aside any preformed opinions about the case and decide it on the evidence and 

law presented during trial, Juror No. 12 responded, ―I think so.‖

In response to a question whether he had recently followed other criminal 

cases in the news media, Juror No. 12 answered ―yes,‖ and explained he had 

followed ―[t]he appeals to let the woman in Texas be excused from [the] death 

penalty because she found God.‖ A follow-up question inquired whether a case or 

cases the prospective juror had followed might affect his or her ability to be a fair 

and impartial juror. Juror No. 12 checked ―yes‖ and indicated, ―[if] defendant said 

he‘d found God and should be spared for that reason.‖

Following these questions and answers, the questionnaire included a section 

titled ―Attitudes About the Death Penalty.‖ This section was prefaced by an 

extended description of the nature of a capital penalty trial. The preface explained 

that the jury was to determine the appropriate penalty by ―weighing‖ various 

aggravating and mitigating (―bad and good‖) things about the crime, the 

defendant, and his background, ―including a consideration of sympathy.‖ It 

admonished that the weighing process was not quantitative, but qualitative, and 

that, to fix the penalty at death, the jury must be persuaded the aggravating factors 
72

―are so substantial in comparison with the mitigating factors‖ that death, rather 

than life without parole, was warranted.

The questionnaire than asked whether, ―[b]ased on the above,‖ the 

prospective juror‘s views would cause him or her to automatically vote for life or 

death. Juror No. 12 answered ―no‖ in each case. When queried as to his 

―GENERAL FEELINGS about the death penalty,‖ Juror No. 12 responded, ―I‘m 

for it.‖ Asked whether he thought the death penalty was used too seldom, too 

randomly, or too often, Juror No. 12 stated, ―Too many appeals that take too 

long.‖ Asked whether he could set aside his personal feelings about what the law 

ought to be and follow the court‘s instructions, Juror No. 12 checked ―yes,‖ and 

wrote, ―I‘m for the death penalty but if [the] court proved to me that defendant 

should be spared death — I might not vote death.‖

The next questionnaire section was titled ―Penalty Trial – Factors to 

Consider.‖ The single question in this section was preceded by an explanation that 

persons selected to serve as penalty jurors would receive instructions listing the 

relevant factors in the penalty determination. These factors were then set forth, 

including ―[a]ny other circumstance which extenuates the gravity of the crime 

even though it is not a legal excuse for the crime (and any sympathetic or other 

aspect of the defendant‘s character and record) that the defendant offers as a basis 

for a sentence less than death, whether or not related to the offense for which he is 

on trial.‖ The questionnaire then asked if the prospective juror felt that any of the 

listed factors should ―never‖ be considered in determining the appropriate 

punishment. Juror No. 12 answered ―no.‖
73

Juror No. 12 expressed similar attitudes during oral voir dire.24 While he 

was in the jury box during jury selection, the court posed three questions, 

addressed to the group in the box. Paraphrased, these questions were whether the 

prospective juror (1) could personally vote for death if he or she believed that was 

the appropriate punishment, (2) could personally vote for life without parole if he 

or she believed this was a case where death was not appropriate, and (3) would 

carefully consider both options before deciding. The court then asked several 

prospective jurors individually, including Juror No. 12, how they would respond to 

those questions. Juror No. 12 answered, ―Yes to all three.‖

The court addressed Juror No. 12 about his ―I think so‖ response to the 

questionnaire inquiry whether he could set aside preformed views and decide the 

case on the evidence and the law. ―Can you assure counsel and [me],‖ the court 

asked, ―that you can set aside any preconceived opinion and decide this case —? ‖ 

Juror No. 12 interjected, ―I think I can, if they can give me a good reason that 

somebody shouldn‘t be put to death, I believe I would vote in that direction.‖ The 

court then asked, ―So your position is that they have to prove why somebody 

should not be put to death?‖ Juror No. 12 answered, ―Uh-huh.‖

Shortly thereafter, the court addressed general remarks to the panelists, 

including Juror No. 12, who were in the jury box. The court indicated that it 

would provide certain instructions throughout the trial and at its conclusion. ―It is 

 

24 In response to the court‘s biographical inquiries during voir dire, Juror No. 

12 indicated that he lived in Buena Park, was 43 years old and single, and had 

completed high school and ―a couple years in college.‖ He stated he had worked 

at Disneyland for the past 24 years, and for the Orange County Republican Central 

Committee ―for a couple years before that.‖ Juror No. 12 also indicated he had an 

uncle who was a retired Los Angeles County deputy sheriff, and another uncle 

―who spent about five years in the Whittier police force . . . back in the late 

1960‘s.‖
74

important,‖ the court declared, ―that I have your assurance that you will follow my 

instructions and rulings on the law and will apply that law to this case. [¶] [To] 

[p]ut it somewhat differently, whether you approve or disapprove of the court‘s 

rulings or instructions, it is your solemn duty to accept as correct these statements 

of the law. You may not substitute your own idea of what you think the law ought 

to be. [¶] Is there any member of the panel that will not follow the law as it is 

given to you in this case?‖ Juror No. 12 made no response indicating he would 

not do so.

Continuing its general inquiries, the court asked the panelists in the jury 

box, including Juror No. 12, whether ―any of [their] close friends or relatives [had] 

ever served as a juror on a capital case; death penalty case.‖ Juror No. 12 raised 

his hand and stated, ―My immediate boss at work that I have known for about 20 

years, just did one out in Riverside County.‖ The court asked whether this 

individual had discussed the Riverside County trial with Juror No. 12 after it was 

over. Juror No. 12 declared, ―He said that it, you don‘t know what it is like, you 

have an opinion about it until you get there and actually have to make that 

decision, you just don‘t, you can‘t understand it.‖25

After further questions directed to various panelists sitting with Juror No.12 

in the jury box, the court again asked the group as a whole, ―Does any juror know 

of any other reason, or has anything occurred during this questioning period that 

might make you doubtful that you would be a completely fair and impartial juror 

 

25 Asked by the court if anything Juror No. 12 discussed with the Riverside 

County juror about the latter‘s experience ―would have any bearing on how you 

would decide this case,‖ Juror No. 12 answered, ―No.‖ But considered in the 

context of his answer to the preceding question, the negative response indicates 

that these discussions had not reinforced any preconceived pro-death attitudes on 

Juror No. 12‘s part, and, if anything, had instead influenced him to keep an open 

mind.
75

in this case, or why you should not be on this jury? If there is, it is your duty to 

disclose the reason at this time.‖ Juror No. 12 did not respond.

Attorney Peters asked Juror No. 12 about his questionnaire reference to 

delays in the capital penalty system. Peters inquired whether ―that [is] going to 

leak over into the facts of this case, the law involved in this case.‖ Juror No. 12 

said, ―I don‘t think so.‖ Peters suggested, ―That‘s more of a political problem than 

anything else?‖ Juror No. 12 answered, ―Yeah.‖ Peters queried whether Juror No. 

12 could ―weigh the aggravating and mitigating, whatever those turn out to be, and 

render a fair verdict.‖ Juror No. 12 responded, ―I think so.‖ Without further 

questions to Juror No. 12, the defense passed the panelists in the box, including 

Juror No. 12, for cause.

The prosecutor asked Juror No. 12 whether, ―[f]rom what you heard about 

the case, what it is about, a police officer victim, do you think you could sit and be 

that kind of juror we were talking about who can consider both [penalties], who 

can accept the death penalty and vote or impose either one.‖ Juror No. 12 

answered, ―Yes.‖ When the prosecutor then posited that ―[y]ou think you can do 

that?,‖ Juror No. 12 responded, ―Yes, I do.‖ Without further questions to Juror 

No. 12, the prosecution passed the panelists in the jury box, including Juror No. 

12, for cause.

Under these circumstances, Juror No. 12‘s written and oral responses did 

not demonstrate, as a matter of law, that his death penalty views would ―  ̳prevent 

or substantially impair‘ the performance of the juror‘s duties as defined by the 

court‘s instructions and the juror‘s oath.‖ (Crittenden, supra, 9 Cal.4th 83, 121.) 

Juror No. 12 expressed unequivocal general support for the death penalty, 

conceded his pretrial impression that death was appropriate in this case, and 

asserted he started from the perspective that the defense had the burden of proving 

otherwise. However, advised at several points that he must follow the law and 
76

instructions regardless of his personal views, and must frankly disclose if he felt 

unable to do so, he consistently indicated that he could and would subordinate his 

views, carefully weigh and consider the aggravating and mitigating evidence as 

instructed, vote for either death or life without parole as appropriate, and sit fairly 

in accordance with the juror‘s oath. He further noted the insight of a colleague 

who had recently served as a capital juror that, whatever one‘s preconceived 

notions, it was impossible to understand the solemn realities of that role until one 

had experienced it.

The record thus fails to establish that Juror No. 12 was a biased juror. This 

conclusion disposes of defendant‘s contentions that the trial court had a sua sponte 

duty to excuse Juror No. 12, and that his counsel was incompetent for failing to 

challenge this juror.

The first of these claims fails for the following reasons: Had the trial court 

— which was able to observe Juror No. 12‘s demeanor and evaluate his credibility 

under voir dire questioning — denied a challenge for cause on the ground of 

penalty bias, its ruling would have been upheld on appeal as supported by 

substantial evidence, and within the court‘s discretion. (E.g., Martinez, supra, 

47 Cal.4th 399, 426; Lewis, supra, 43 Cal.4th 415, 483; Weaver, supra, 26 Cal.4th 

876, 910.) If the court was not required to sustain a bias challenge against Juror 

No. 12, it was certainly not obliged, on its own motion, to excuse this juror for 

bias.

By the same token, defendant cannot show on the appellate record that 

competent counsel should and would have challenged Juror No. 12 on this ground. 

(People v. Lucas (1995) 12 Cal.4th 415, 485.) So far as appears, counsel could 

reasonably conclude there was no merit in such a challenge. (Ibid.) Nor does the 

record demonstrate the absence of any plausible tactical reason for counsel‘s 

failure to raise the issue on the chance of a favorable ruling. Counsel, who were
77

also able to observe Juror No. 12‘s personality and demeanor, might have formed 

the impression that, despite his views, this panelist would indeed perform fairly, 

and would not be a liability as a sitting juror. (Ibid.) We find no basis to reverse 

the penalty judgment.

D. Wheeler/Batson claim.

Defendant urges his state and federal constitutional rights to a jury drawn 

from a representative cross-section of the community, to equal protection of the 

law, and to a fundamentally fair and reliable trial (U.S. Const., 5th, 6th, & 14th 

Amends., Cal. Const., art. I, §§ 7, 16) were violated when the trial court 

erroneously denied his objection, under People v. Wheeler (1978) 22 Cal.3d 258 

(Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson), that the prosecutor 

had used peremptory challenges to excuse African-American prospective jurors 

for racially discriminatory reasons. (Wheeler/Batson claim). We reject the 

contention.

l. Facts.

During jury selection, defense counsel objected that the prosecutor ―[had] 

excused all the Black jurors.‖ The court asked if counsel was making a ―Wheeler 

motion,‖ and counsel replied, ―Yes.‖26 Defense counsel and the prosecutor agreed 

the prosecutor had exercised peremptory challenges to excuse prospective jurors 

M.H., P.F., and L.P., the only three African-American members of the jury pool. 

The court asked the clerk to retrieve the questionnaires of these panelists. While 

the clerk was doing so, the court tentatively found a prima facie showing of 

discriminatory intent.

 

26 The reference to Wheeler sufficed to preserve defendant‘s claim under 

Batson as well. (Vines, supra, 51 Cal.4th 830, 847, fn. 7; People v. Yeoman

(2003) 31 Cal.4th 93, 117-118.)
78

On reflection, the court backtracked from that finding. It suggested the 

defense was required to demonstrate a ―strong likelihood‖ of discrimination in the 

excusal of these prospective jurors, and expressed doubt such a likelihood was 

established by the mere fact that ―all three [were] of the same racial group.‖ 

Defense counsel responded there was further ―circumstantial evidence‖ of 

discrimination, i.e., counsel‘s recollection that, except for their race, these 

prospective jurors were indistinguishable from others the prosecution had failed to 

excuse. Ultimately, though the court found the prima facie issue ―marginal,‖ it 

asked the prosecutor to give his reasons for the excusals.

As to M.H., the prosecutor indicated, ―[M.H.] is single. She has no 

children. She is younger than the juror I prefer. She is in her 30‘s. She is also, 

her attitude regarding the death penalty was personal and emotional, not 

philosophical. She was the one who talked about, if it was my family I could 

understand it. But primarily the reason [is] she is young, single and no children. 

There [are] no other jurors on the jury presently who fit that pattern.‖

As to P.F., the prosecutor stated that ―she is also younger than I want, in her 

30‘s. She had a very casual attitude and dress. She said that, well, in her 

questionnaire [the death penalty] was appropriate only where there was a pattern 

of violent conduct, which is not the law. And she didn‘t seem particularly 

interested in the proceedings. And when I was talking to her she seemed rather 

bored with my questions, and with [defense counsel‘s] questions.‖

As to L.P., the prosecutor declared that ―I had two reasons for challenging 

her. Her present occupation. She is a social worker. And I generally try not to 

have social workers. I generally will use a peremptory on social workers unless 

there is a reason not to. She also said that she couldn‘t vote for the death penalty 

unless it was proved, the facts were proved beyond a shadow of a doubt, which is 
79

not the law either. So I felt she might be holding the People to a stronger burden 

on some of the facts, particularly the other acts that are alleged.‖

As additional explanation pertaining to all the prospective jurors at issue, 

the prosecutor advised that ―I grade [prospective jurors] on a system of one to ten 

and before seeing the jurors I graded [L.P.] a three, [P.F.] a three plus, and . . . 

[M.H.] a four.‖

At this point, defense counsel interjected, ―I just want to point out that 

[Juror No. 12] is also unmarried.‖ Apparently confused by counsel‘s remark, the 

court indicated, ―I think we are still doing peremptories, aren‘t we?‖ Defense 

counsel responded by saying, ―I know. I am finding everything, I am a lawyer, 

I am finding every —,‖ whereupon the court asked, ―Anything further?‖ The 

prosecutor said, ―No.‖ The court asked whether the matter was submitted, and 

defense counsel said, ―Yes.‖

The court thereupon ruled as follows: ―Well, the court finds that no 

discriminatory intent is inherent in the explanations, and the reasons appear to be 

race neutral, and on those grounds the court will deny the Wheeler motion.‖

2. Applicable law.

―  ̳ ―Both the state and federal Constitutions prohibit the use of peremptory 

challenges to remove prospective jurors based solely on group bias.‖ ‘ [Citation.] 

Recently,  ̳the United States Supreme Court reaffirmed that Batson states the 

procedure and standard to be employed by trial courts when challenges such as 

defendant‘s are made. ―First, the defendant must make out a prima facie case  ̳by 

showing that the totality of the relevant facts gives rise to an inference of 

discriminatory purpose.‘ [Citations.] Second, once the defendant has made out a 

prima facie case, the  ̳burden shifts to the State to explain adequately the racial 

exclusion‘ by offering permissible race-neutral justifications for the strikes. 
80

[Citations.] Third,  ̳[i]f a race-neutral explanation is tendered, the trial court must 

then decide . . . whether the opponent of the strike has proved purposeful racial 

discrimination.‘ [Citations.]‖ ‘ (People v. Cornwell (2005) 37 Cal.4th 50, 66-67; 

see also People v. Mills (2010) 48 Cal.4th 158, 173.)

―  ̳ ―  ̳[A] defendant satisfies the requirements of Batson‘s first step by 

providing evidence sufficient to permit the trial judge to draw an inference that 

discrimination has occurred.‘ [Citation.] [¶] In determining whether the 

defendant ultimately has carried his burden of proving purposeful racial 

discrimination,  ̳the trial court ―must make  ̳a sincere and reasoned attempt to 

evaluate the prosecutor‘s explanation in light of the circumstances of the case as 

then known, his knowledge of trial techniques, and his observations of the manner 

in which the prosecutor has examined members of the venire and has exercised 

challenges for cause or peremptorily . . . .‘ [Citation.]‖ ‘ (People v. Reynoso

(2003) 31 Cal.4th 903, 919.)  ̳[T]he trial court is not required to make specific or 

detailed comments for the record to justify every instance in which a prosecutor‘s 

race-neutral reason for exercising a peremptory challenge is being accepted by the 

court as genuine.‘ ‖ ‘ (People v. Stanley [(2006)] 39 Cal.4th [913,] 936.)

―  ̳Review of a trial court‘s denial of a Wheeler/Batson motion is 

deferential, examining only whether substantial evidence supports its conclusions. 

[Citation.] ―We review a trial court‘s determination regarding the sufficiency of a 

prosecutor‘s justifications for exercising peremptory challenges  ̳ ―with great 

restraint.‖ ‘ [Citation.] We presume that a prosecutor uses peremptory challenges 

in a constitutional manner and give great deference to the trial court‘s ability to 

distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial 

court makes a sincere and reasoned effort to evaluate the nondiscriminatory 

justifications offered, its conclusions are entitled to deference on appeal.‖ ‘ 
81

(People v. Lenix (2008) 44 Cal.4th 602, 613-614.)‖ (Vines, supra, 51 Cal.4th 830, 

848.)27

 

27 The concurring opinion urges that, when the trial court has failed to 

explain in detail why it is accepting the proffered reasons for a challenged excusal, 

we owe the court‘s ruling no deference, but must ourselves examine the record in 

detail and determine independently whether the proffered reasons for the excusal 

were likely sincere. As in a recent prior opinion on this subject (People v. 

Williams (2013) 56 Cal.4th 630, 715 (dis. opn. of Liu, J.)), the concurring 

opinion‘s author concedes that in concluding otherwise,we adhere to our wellestablished precedent. (Conc. opn. of Liu, J., at p. 7.) 

Our practice does not indicate, as the concurring opinion suggests, 

insensitivity to claims that a peremptory excusal has been employed for a 

discriminatory reason. On the contrary, it honors the principles that should and do 

attend the evaluation of such claims. A party has an absolute right, within 

statutory limits, to excuse a prospective juror for any nondiscriminatory reason, 

however subjective, that gives the party concern about the juror‘s suitability. We 

presume this right is exercised in good faith, and the burden is always on the party 

claiming discrimination to establish it. When the trial court has inquired into the 

basis for an excusal, and a nondiscriminatory explanation has been provided, we 

also assume the court understands, and carries out, its duty to subject the proffered 

reasons to sincere and reasoned analysis, taking into account all the factors that 

bear on their credibility. Finally, we recognize that the trial rather than the 

appellate court is best suited to determine, under all the relevant circumstances, 

whether the proffered reasons are likely the real ones. 

Deference to the trial court in such a case, even in the absence of a detailed 

ruling, hardly constitutes ―a  ̳don‘t ask, don‘t tell‘ approach to appellate review.‖ 

(Conc. opn. of Liu, J., post, at p. 25.) In a stage three Wheeler/Batson analysis, 

the trial court rules only after the party who exercised the challenged excusal was

asked, and did tell, the reasons for this action. Here, the trial court accepted 

explanations that are facially permissible, inherently plausible, and factually 

supported, and defendant cites no substantial evidence of pretext. Under such 

circumstances, there is no reason on appeal to suspect a dereliction of duty by the 

trial court, or to reverse the presumption that the excusals were exercised 

legitimately, simply because the trial court did not ―tell‖ its reasons in detail. 

Accordingly, as we have previously indicated, our past precedent will ―guide us 

until the United States Supreme Court articulates a contrary rule.‖ (Williams, 

supra, at p. 653, fn. 21.)
82

Appellate review of a step three finding of nondiscriminatory intent is also 

informed by the principle that ―the defendant‘s burden at the third stage of a 

Wheeler/Batson hearing is to show the prosecutor excused prospective jurors for 

discriminatory reasons [citation], not merely that some of the nondiscriminatory 

reasons offered by the prosecutor are not supported by the record.‖ (People v. 

Taylor (2009) 47 Cal.4th 850, 891 (Taylor); see People v. McKinzie (2012) 

54 Cal.4th 1302, 1322.)

Here, it is not clear the trial court ultimately found, in step one, that 

defendant had made out a prima facie case. Moreover, insofar as the court 

declined to make such a ruling, it appears to have relied on its belief that a prima 

facie case required the showing of a ―strong likelihood‖ of discrimination. 

Intervening high court authority has held that such a standard is too demanding for 

federal constitutional purposes. (Johnson v. California (2005) 545 U.S. 162, 170 

[prima facie burden is simply to ―produc[e] evidence sufficient to permit the trial 

judge to draw an inference that discrimination has occurred‖].)

However, as noted, the court nonetheless proceeded to step two by asking 

the prosecutor to explain his reasons for the challenged excusals. The prosecutor 

did so, and the trial court then made a ruling, pursuant to step three, that the 

reasons expressed were valid. Under these circumstances, we too may simply 

proceed as though this is a step three case, analyzing whether the trial court 

properly accepted the race-neutral reasons given by the prosecutor. (People v. 

Zambrano (2007) 41 Cal.4th 1082, 1105-1106; People v. Lewis and Oliver (2006) 

39 Cal.4th 970, 1010; People v. Ward (2005) 36 Cal.4th 186, 199-201.)
83

3. Discussion.

Applying this analysis, we conclude that substantial evidence supports the 

race-neutral reasons given by the prosecutor for his excusal of prospective jurors 

M.H., P.F., and L.P. We consider each challenged excusal in turn.

a. Prospective Juror M.H.

M.H. indicated that she was 40 years old, was single, and had no children. 

On her juror questionnaire, M.H. stated she was for the death penalty, and she 

confirmed that view on voir dire. When defense counsel asked whether her 

feelings stemmed from any personal experience, she replied, ―Oh, no, no, not 

personally. But I figure if someone came to my house and blew my family away, 

I would flip the switch. But that‘s personal, that‘s why I believe in it. But I don‘t 

— I wouldn‘t sit here and tell this young man, okay, you need it because you 

killed somebody, I think there [are] also circumstances. But I know if it was my 

family, I couldn‘t honestly say that I wouldn‘t be emotional about it.‖

When defense counsel said that families are not the executioners, M.H. 

responded that she agreed, and confirmed she had no personal experiences 

relevant to the death penalty, but repeated that ―if it was me personally and my 

family, that‘s totally different for me.‖ When counsel asked if M.H. agreed we 

cannot have a system that allows a victim‘s family to take revenge, M.H. said, 

―Oh, definitely. I am not saying that. I think maybe you are misunderstanding 

what I am saying to you; are you misunderstanding me?‖

M.H.‘s remarks about the death penalty might be taken more than one way, 

but they could give rise to a reasonable concern that her willingness to impose this 

punishment might be influenced by her degree of direct interest in the case. The 

prosecutor expressed this concern by suggesting M.H.‘s approval of the death 

penalty appeared to be ―personal‖ and ―emotional‖ — as in ―if it was my family,

I could understand it‖ — rather than ―philosophical,‖ such that she could apply 
84

that penalty in any appropriate case. Moreover, as the Attorney General observes, 

M.H.‘s somewhat testy exchange with defense counsel (―are you 

misunderstanding me?‖) could also, in combination with the prosecutor‘s personal 

observation of this prospective juror, persuade him her relative youth was a sign of 

immaturity.

Defendant points out that M.H. was 40 years old, not ―in her 30‘s‖ as 

recalled by the prosecutor. Moreover, defendant asserts, the prosecutor‘s claim 

that M.H.‘s combination of age, unmarried status, and childlessness had not 

previously been encountered in the jury pool was untrue. As defendant notes, 

Juror No. 12 had already disclosed on voir dire that he was 43 years old, 

unmarried, and childless. Finally, defendant urges that the prosecutor‘s 

characterization of M.H.‘s death penalty views was unfair; M.H. simply meant, 

defendant asserts, that she might be emotional in her desire for the death penalty if 

her own family was involved, but could and would be fair in any case where her 

interest was not personal.

As noted, however, the prosecutor was not obliged to accept this precise

interpretation of M.H.‘s ambiguous remarks, and he could reasonably be 

concerned about her ability to give the death penalty fair consideration when a 

family member was not a victim. Moreover, even if Juror No. 12 shared some 

characteristics with M.H. that the prosecutor indicated were influential in excusing 

the latter, there was one substantial difference between the two panelists — Juror 

No. 12 expressed much stronger views in favor of the death penalty. Nothing 

indicates the prosecutor was wrong in suggesting that when M.H.‘s age, familial 

status, and death penalty views were considered together, she was unique among 

the jurors who had been evaluated at the time the prosecutor excused her. Under 

these circumstances, the record adequately supports the prosecutor‘s statement of 

race-neutral reasons for exercising a peremptory challenge against M.H.
85

b. Prospective Juror P.F.

P.F. declared in her questionnaire that ―[t]he death penalty is a very serious 

consequence for committing a serious offense (murder). In order for someone to 

receive this punishment, I believe the person must have maliciously set out to 

destroy the life of someone else (and their loved ones), and have a history of such 

violent behavior w/o remorse.‖ She stated her opinion that ―the death penalty is 

not used often enough in cases where convicted felons have a repeated [behavior] 

pattern for committing violent crimes against others, such as murder.‖

On voir dire, defense counsel indicated to P.F. his impression that she was 

―kind of a strong proponent of the death penalty but not rabid about it, you just 

think it is appropriate sometimes?‖ P.F. answered, ―Yeah, I mean if, how to 

answer it, if like I knew all the facts, you know, see everything, I would want to 

say for a judgment in my mind, but based upon the facts I wouldn‘t just arbitrarily 

say because of a particular crime, without knowing everything, what the 

punishment should be.‖

Later, the prosecutor asked P.F. what she meant on her questionnaire by 

stating she ―felt the death penalty would be appropriate when there was a pattern 

of violent conduct. Did you mean by that anything in particular, as far as there 

would [have to be] a series of events, or more than one . . .?‖ P.F. answered, 

―What I had in mind wasn‘t a particular case, but like some cases, certain ones, the 

person just had a pattern of no regard for life.‖ P.F. agreed when the prosecutor 

suggested ―it wasn‘t something exclusive, just something you were thinking of 

that would be a strong consideration for you?‖ She agreed again when the 

prosecutor said, ―It wasn‘t just like one system you would consider to look at; is 

that correct?‖

Under these circumstances, the prosecutor‘s recall that P.F. had indicated 

the death penalty was appropriate for a ―pattern of violent conduct‖ was not unfair. 
86

Though certain of P.F.‘s voir dire responses suggested she might consider the 

death penalty in other cases, it was reasonable for the prosecutor to be concerned

that she might be reluctant to do so except in cases of the most calculated and 

malicious murder by someone who had committed similar violent acts in the past. 

The record thus supports the sincerity of the prosecutor‘s claim that P.F.‘s 

expressed views on the death penalty were a race-neutral reason why he used a 

peremptory challenge to excuse her.

Defendant insists the record does not support the prosecutor‘s assertions 

about P.F.‘s casual dress, and her ―bored‖ and disinterested manner. As defendant 

observes, the record indicates that P.F. was a 911 operator for the police 

department. On the record, he suggests, her answers to all questions seem 

appropriate, and she appears facially to have been an ideal juror.

But the prosecutor‘s demeanor observations, even if not explicitly 

confirmed by the record, are a permissible race-neutral ground for peremptory 

excusal, especially when they were not disputed in the trial court. (People v. 

Clark (2011) 52 Cal.4th 856, 1012; see People v. Fuentes (1991) 54 Cal.3d 707, 

715.)28 We cannot say the record contradicts the race-neutral reasons stated by the 

prosecutor for his peremptory excusal of prospective juror P.F.

c. Prospective Juror L.P.

On her questionnaire, L.P. listed her occupation as ―Senior Social Worker.‖ 

Asked her general feelings about the death penalty, L.P. responded, ―My general 

 

28 Defendant asserts that the trial court cut off defense counsel‘s attempt to 

rebut the prosecutor‘s reasons. But counsel simply protested that Juror No. 12, 

like prospective juror M.H., was unmarried. There is no indication counsel sought 

to dispute the prosecutor‘s description of P.F.‘s demeanor. Indeed, when the court 

thereafter asked if the Wheeler/Batson motion was submitted, defense counsel 

replied, ―Yes.‖
87

feelings are that it is important when inflicting it to make sure that the person is 

guilty beyond a shadow of a doubt before imposing it.‖

On voir dire, the prosecutor told L.P. that her ―shadow of a doubt‖ 

comment on her questionnaire had ―just sort of stood out,‖ and he asked her to 

explain what she meant. L.P. replied, ―I think I said the major problem with it, 

because I wanted to make sure that the people were convicted beyond a shadow of 

a doubt.‖ ―In other words,‖ the prosecutor suggested, ―before we consider a 

penalty as serious as this, we want to make sure we know what the facts are; is that 

what you are saying . . .?‖ L.P. answered, ―Yes.‖

Defendant insists that, in stating his reasons for excusing L.P., the 

prosecutor mischaracterized her ―shadow of a doubt‖ comment. Defendant notes 

that L.P. made clear on voir dire she was willing to consider the death penalty so 

long as the person was convicted beyond a shadow of a doubt. Because the 

penalty jury would be told it must accept his conviction of Officer Burt‘s murder, 

defendant asserts, the prosecutor had no legitimate basis for concern that L.P. 

would refuse to entertain the possibility of a death sentence in this case.

However, in light of L.P.‘s responses, it was reasonable for the prosecutor 

to be concerned that, for the proof of any facts pertinent to a possible death 

sentence, L.P. would insist not only on the elimination of reasonable doubt, but on 

the removal of all doubt. Moreover, the record confirms the prosecutor‘s 

recollection that L.P. was a social worker. The prosecutor‘s expressed reservation 

about having social workers on the jury was race-neutral. It also had ―some basis 

in accepted trial strategy‖ (e.g., Taylor, supra, 47 Cal.4th 850, 886) insofar as it 

stemmed from a concern about the general attitudes and philosophies persons in 

that profession might harbor. Hence, the record affords no basis to conclude that 

the prosecutor‘s reasons for excusing L.P. were insincere or pretextual.
88

Defendant urges that the trial court‘s terse ruling on the Wheeler/Batson

motion does not represent a ―sincere and reasoned effort‖ to assess whether the 

prosecutor‘s proffered race-neutral reasons for excusing M.H., P.F., and L.P. were 

his true reasons. Defendant asserts that the words used by the court — i.e., that 

―no discriminatory intent is inherent in the explanations, and the reasons appear to 

be race neutral‖ (italics added) — indicate the court addressed only the facial 

plausibility of the reasons claimed by the prosecutor, and failed to properly assess, 

under all the relevant circumstances, whether the prosecutor‘s explanations were 

credible.

However, we have made clear that ―the trial court is not required to explain 

on the record its ruling on a Batson/Wheeler motion. (People v. Reynoso, supra, 

31 Cal.4th [903,] 919.)  ̳When the prosecutor‘s stated reasons . . . are both 

inherently plausible and supported by the record, the trial court need not question 

the prosecutor or make detailed findings.‘ (People v. Silva (2001) 25 Cal.4th 345, 

386.)‖ (Vines, supra, 51 Cal.4th 830, 849.) Here, as noted, the prosecutor‘s 

reasons were plausible and, in all essential respects, supported.

Moreover, in arguing that the language of the trial court‘s ruling shows the 

court made no bona fide attempt to assess the prosecutor‘s credibility, defendant 

parses the court‘s words too closely. The court‘s assertion that no discriminatory 

intent was ―inherent‖ in the prosecutor‘s explanations is reasonably read as a 

determination that the court believed them to be true.

We further note that, while considering the Wheeler/Batson motion, the 

court asked for the relevant juror questionnaires, and it presumably reviewed 

them. No reason appears to conclude the court failed to consider all the factors 

bearing on the prosecutor‘s credibility, including his demeanor, the inherent 

reasonableness or improbability of his proffered explanations, their plausible basis 

in accepted trial strategy, the court‘s own observation of the relevant jurors‘ voir 
89

dire, its experience as a trial lawyer and judge in the community, and the common 

practices of the prosecutor‘s office and the individual prosecutor himself. (E.g., 

People v. Jones (2011) 51 Cal.4th 346, 360.) Defendant‘s Wheeler/Batson claim 

must be rejected.

E. Claim of unreliable special circumstance and penalty verdicts.

Defendant urges that the trial procedures in this case denied him reliable 

determinations of death eligibility, and of the appropriate penalty, in violation of 

his state and federal constitutional rights to a reliable death judgment. (U.S. 

Const., 5th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 15, 17.) He suggests in 

general that the trial was an ―empty charade‖ due to his counsel‘s deficiencies, and 

his own asserted incompetence to waive his rights and stand trial — claims we 

have already considered at length and rejected on this record.

In particular, however, he focuses anew on two aspects of the 

proceedings — his ―slow plea‖ to the special circumstance allegation, and the 

penalty trial, at which he was permitted to present no mitigating evidence or 

argument and to give testimony inviting the jury to sentence him to death. He 

claims that regardless of his wishes, the state was authorized, indeed required, to 

override these decisions in order to protect the paramount public interest in 

reasoned, fair, and just death judgments, and to avoid being implicated in his 

desire to commit state-assisted suicide. We are not persuaded.

As defendant observes, California has recognized limited circumstances in 

which, as a matter of fundamental public policy, rights and decisions that are 

normally personal to a criminal defendant may be limited or overruled in the 

service of death penalty reliability. Thus, a capital defendant is not permitted to 

waive his or her automatic appeal of a death judgment. (Cal. Const., art. VI, § 11, 

subd. (a); Pen. Code, § 1239, subd. (b); People v. Stanworth (1969) 71 Cal.2d 820, 
90

834.) Moreover, a plea of guilty to a capital felony may not be taken except in the 

presence of counsel, and with counsel‘s consent. (§ 1018.) Even if otherwise 

competent to exercise the constitutional right to self-representation (Faretta v. 

California (1975) 422 U.S. 806), a defendant may not discharge his lawyer in 

order to enter such a plea over counsel‘s objection. (E.g., People v. Chadd (1981) 

28 Cal.3d 739, 747-757; see People v. Alfaro (2007) 41 Cal.4th 1277, 1299-1302.)

But here, defendant‘s counsel did consent to a ―slow plea‖ on the issues of 

guilt and special circumstances. Nor did counsel agree simply to allow defendant 

to waive his trial rights for purposes of inviting a death judgment. On the 

contrary, their consent stemmed from their express decision — one we have 

deemed competent and reasonable under the circumstances — to preserve 

credibility with a penalty jury in the face of overwhelming evidence that defendant 

had gunned down a police officer during a routine traffic stop in order to eliminate 

the victim as a witness to serious felony evidence discovered during the encounter.

As we have also noted, competent counsel could conclude this ―slow plea‖ 

strategy had the additional advantage of limiting the special circumstance evidence 

of the officer‘s ―lawful‖ performance of duty to the showing made at the 

preliminary hearing. Defendant thereby avoided the risk that additional evidence 

on the ―lawful duty‖ issue would be presented in a trial, while preserving the right 

to urge on appeal, if necessary, that the preliminary hearing evidence was legally 

insufficient. In turn, we have concluded that the evidence of Officer Burt‘s 

―lawful‖ performance was legally sufficient, in that a rational trier of fact, 

reviewing the evidence adduced at the preliminary hearing, could find beyond 

reasonable doubt — as the instant trial court necessarily did — that the victim was 

lawfully engaged in duty at the time he was killed. Under these circumstances, the 

fact that defendant may have had personal reasons, different from those of his 
91

counsel, for agreeing to a ―slow plea‖ does not undermine the fundamental 

reliability of the death judgment.

Nor are constitutional reliability concerns raised by the fact that defendant, 

at his own insistence, presented no mitigating evidence or argument at the penalty 

trial. ―We have stated that  ̳a verdict is constitutionally reliable ―when the 

prosecution has discharged its burden of proof at the guilt and penalty phases 

pursuant to the rules of evidence and within the guidelines of a constitutional 

death penalty statute, the death verdict has been returned under proper instructions 

and procedures, and the trier of penalty has duly considered the relevant mitigating 

evidence, if any, which the defendant has chosen to present.‖ ‘ [Citation.] Under 

those conditions, despite a defendant‘s avowed intent not to present available 

evidence in mitigation, the state‘s interest in ensuring a reliable and fair penalty 

determination has been met. [Citations.]‖ (People v. Bradford (1997) 15 Cal.4th 

1229, 1372.)

Finally, we have repeatedly rejected the contention that the constitutional 

reliability of a death judgment is undermined by recognizing the defendant‘s 

personal right to testify in favor of the death penalty. (Nakahara, supra, 

30 Cal.4th 705, 719; Webb, supra, 6 Cal.4th 494, 534-535.) Though the instant 

jury received no specific instruction that ―  ̳despite the defendant‘s testimony,‘ ‖ it 

must decided the appropriate penalty based upon the factors in aggravation and 

mitigation (see Webb, supra, at p. 535, fn. 29, quoting Guzman, supra, 45 Cal.3d 

915, 962), the jury was generally instructed that it must weigh the aggravating and 

mitigating evidence to determine the appropriate penalty, and should return a 

death verdict only if persuaded the aggravating circumstances were ―so 

substantial‖ in comparison to mitigation that death was warranted. Jurors were 
92

also told not to be swayed by bias against the defendant, that the listed aggravating 

factors were exclusive,29 and that defendant‘s ―behavior‖ in the courtroom could 

be considered only to rebut mitigating evidence of remorse if any such evidence 

was offered. No basis for reversal appears.

F. Challenges to California death penalty statute and instructions.

Defendant raises numerous challenges to California‘s death penalty statute, 

and to the standard instructions given at his penalty trial. We have rejected the 

identical claims on many occasions, and defendant fails to persuade us that these 

decisions should be reconsidered.

Thus, we reaffirm that ―the death penalty statute is not unconstitutional 

because it does not require  ̳unanimity as to the truth of aggravating 

circumstances, or findings beyond a reasonable doubt that an aggravating 

circumstance (other than § 190.3, factor (b) or (c) evidence) has been proved, that 

the aggravating factors outweighed the mitigating factors, or that death is the 

appropriate sentence.‘ [Citation.] Nothing in Cunningham v. California (2007) 

549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 

536 U.S. 584, or Apprendi v. New Jersey (2000) 530 U.S. 466, affects our 

conclusions in this regard. [Citations.] No burden of proof is constitutionally 

required, nor is the trial court required to instruct the jury that there is no burden of 

proof. [Citations.] That certain noncapital sentencing proceedings may assign a 

burden of proof to the prosecutor does not mean the death penalty statute violates 

a [capital] defendant‘s rights to equal protection or due process. [Citations.] . . . . 

 

29 The jury was also expressly advised that the only section 190.3 factors the 

jury could consider in aggravation were factors (a) (circumstances of the capital 

crime), (b) (other violent criminal conduct), and (c) (prior felony convictions).
93

The trial court need not instruct that there is a presumption of life. [Citation.]‖ 

(People v. Dement (2011) 53 Cal.4th 1, 55-56.)

Moreover, the statute is not unconstitutional because the special 

circumstances it specifies are so numerous or broad that it fails to genuinely 

narrow the class of persons eligible for the death penalty, or because it fails to 

require written findings. (E.g., Vines, supra, 51 Cal.4th 830, 891; People v. Abilez

(2007) 41 Cal.4th 472, 533.) Section 190.3, factor (a), which allows the jury to 

consider the circumstances of the capital crime in aggravation, is not 

impermissibly overbroad and does not lead to arbitrary or capricious imposition of 

the death penalty. (E.g., Vines, supra, at p. 891; Abilez, supra, at p. 533; People v. 

Robinson (2005) 37 Cal.4th 592, 655; People v. Kennedy (2005) 36 Cal.4th 595, 

641.) The federal constitutional guarantees of due process and equal protection, 

and against cruel and unusual punishment (U.S. Const., 6th, 8th, and 14th 

Amends.), do not require intercase proportionality review on appeal. (E.g., 

People v. Whalen (2013) 56 Cal.4th 1, 91.)

CALJIC No. 8.88 is not impermissibly overbroad, vague, or misleading 

insofar as it specifies that the jury may impose death if persuaded the aggravating 

circumstances are ―so substantial‖ in comparison to the mitigating circumstances 

that death is ―warrant[ed],‖ and fails to advise that the central determination is 

whether death is the ―appropriate‖ penalty. (E.g., People v. Watkins (2012) 

55 Cal.4th 999, 1036; People v. Gonzalez (2012) 54 Cal.4th 1234, 1299.) Nor was 

the trial court required to delete inapplicable sentencing factors from the penalty 

instructions. (E.g., People v. Valdez (2012) 55 Cal.4th 82, 180; People v. 

McDowell (2012) 54 Cal.4th 395, 444.)30

 

30 Though, as noted above (fn. 29, ante), the jury was told that the only 

applicable section 190.3 factors in aggravation were factors (a), (b), and (c).
94

Finally, California‘s death penalty scheme does not violate international 

law and norms. (E.g., People v. Houston (2012) 54 Cal.4th 1186, 1232.) We are

not persuaded otherwise by Roper v. Simmons (2005) 543 U.S. 551, in which the 

high court cited evolving international standards as ―respected and significant‖ 

support for its holding that the Eighth Amendment prohibits imposition of the 

death penalty against persons who committed their crimes as juveniles. (Roper, at 

p. 578.)

DISPOSITION

The judgment is affirmed.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.
1

CONCURRING OPINION BY LIU, J.

The trial court in this case denied defendant‘s objection to the prosecutor‘s 

peremptory strikes of all three black prospective jurors with the following 

statement: ―Well, the court finds that no discriminatory intent is inherent in the 

explanations, and the reasons appear to be race neutral, and on those grounds the 

court will deny the Wheeler motion.‖ Because defendant has not shown that it 

was more likely than not that the strikes were racially motivated, I agree that his 

claim must be denied. I cannot agree, however, with aspects of today‘s opinion 

that improperly defer to the trial court‘s ruling and, in so doing, fail to evaluate 

defendant‘s claim in the manner that high court precedent requires.

Batson v. Kentucky (1986) 476 U.S. 79 (Batson) set forth a three-step 

framework for evaluating a claim that a peremptory strike was based on race. 

―First, the defendant must make out a prima facie case  ̳by showing that the 

totality of the relevant facts gives rise to an inference of discriminatory purpose.‘ 

[Citations.] Second, once the defendant has made out a prima facie case, the 

 ̳burden shifts to the State to explain adequately the racial exclusion‘ by offering 

permissible race-neutral justifications for the strikes. [Citations.] Third,  ̳[i]f a 

race-neutral explanation is tendered, the trial court must then decide . . . whether 

the opponent of the strike has proved purposeful racial discrimination.‘ ‖ 

(Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) In order to prevail, 
2

the defendant must show that ―it was more likely than not that the challenge was 

improperly motivated.‖ (Id. at p. 170.)

The present case involves Batson‘s third step. Ordinarily, an appellate 

court must review the denial of a Batson motion at the third step with deference to 

the trial court. (See Snyder v. Louisiana (2008) 552 U.S. 472, 477 (Snyder); 

Batson, supra, 476 U.S. at p. 98, fn. 21.) This rule of deference is warranted 

because Batson‘s third-step inquiry often involves evaluation of ―whether the 

prosecutor‘s demeanor belies a discriminatory intent.‖ (Snyder, at p. 477.) In 

addition, if the prosecutor has invoked a juror‘s demeanor as the reason for a 

strike, the Batson inquiry requires evaluation of ―whether the juror‘s demeanor can 

credibly be said to have exhibited the basis for the strike attributed to the juror by 

the prosecutor.‖ (Ibid.) ―[T]hese determinations of credibility and demeanor lie 

 ̳ ―peculiarly within a trial judge‘s province‖ ‘ [citation] . . . .‖ (Ibid.)

However, deference is unwarranted ―when a trial court fails to make 

explicit findings or to provide any on-the-record analysis of the prosecution‘s 

stated reasons for a strike.‖ (People v. Williams (2013) 56 Cal.4th 630, 717 

(Williams) (dis. opn. of Liu, J.).) In such circumstances, ―a reviewing court has no 

assurance that the trial court has properly examined  ̳all of the circumstances that 

bear upon the issue‘ of purposeful discrimination.‖ (Ibid., quoting Snyder, supra, 

552 U.S. at p. 478; see United States v. Rutledge (7th Cir. 2011) 648 F.3d 555, 559 

[―if there is nothing in the record reflecting the trial court‘s decision, then there is 

nothing to which we can defer‖].) In this case, the trial court‘s statement that ―no 

discriminatory intent is inherent in the explanations, and the reasons appear to be 

race neutral‖ does not indicate that it conducted the thorough and careful inquiry 

at Batson‘s third step exemplified by the high court‘s decisions in Snyder and 

Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El). By erroneously deferring to 

the trial court‘s ruling, this court has once again effectuated ―the denial of [a] 
3

defendant‘s Batson claim despite the fact that no court, trial or appellate, has ever 

conducted a proper Batson analysis.‖ (Williams, at p. 700 (dis. opn. of Liu, J.).)

I recently explained in Williams that our deference to Batson rulings 

unaccompanied by explicit findings or analysis falls on the wrong side of a split of 

authority on the correct approach to appellate review at Batson‘s third step. (See 

Williams, supra, 56 Cal.4th at pp. 709–715 (dis. opn. of Liu, J.) [reviewing state 

and federal case law refusing to accord deference to unexplained Batson rulings, 

including United States v. McAllister (6th Cir. 2012) 693 F.3d 572, 581–582, 

Rutledge, supra, 648 F.3d at page 559, Coombs v. Diguglielmo (3d Cir. 2010) 616 

F.3d 255, 261–265, and Green v. LaMarque (9th Cir. 2008) 532 F.3d 1028, 

1031].) In this opinion, I show how this unwarranted deference results in judicial 

inquiry that falls short of what is required in a proper Batson analysis. I also trace 

the origins of our erroneous doctrine and discuss the unfair and counterproductive 

consequences of our approach. For some time now, our jurisprudence has not 

demanded that trial courts or reviewing courts demonstrate a truly reasoned effort 

to evaluate Batson claims in light of all relevant circumstances bearing on the 

issue of purposeful discrimination. And the results, which I document in another 

opinion filed today, are quite remarkable: In the 102 cases where this court has 

addressed a Batson claim over the past 20 years, we have found Batson error only 

once — and that was 12 years ago. (See People v. Harris (Aug. 26, 2013, 

S081700) __ Cal.4th __, __ [at pp. 33–34, 42–44] (conc. opn. of Liu, J.).)

Because high court precedent has consistently recognized the manifold 

harms of racial discrimination in jury selection and has accordingly required more 

careful and thorough inquiry than our case law provides, I respectfully disagree 

with the deferential framework that this court continues to apply in reviewing 

unexplained Batson rulings on appeal.
4

I.

Reciting our precedent, today‘s opinion says: ―  ̳ ―Review of a trial court‘s 

denial of a Wheeler/Batson motion is deferential, examining only whether 

substantial evidence supports its conclusions. [Citation.]  ̳We review a trial 

court‘s determination regarding the sufficiency of a prosecutor‘s justifications for 

exercising peremptory challenges ―  ̳with great restraint.‘ ‖ [Citation.] We 

presume that a prosecutor uses peremptory challenges in a constitutional manner 

and give great deference to the trial court‘s ability to distinguish bona fide reasons 

from sham excuses. [Citation.] So long as the trial court makes a sincere and 

reasoned effort to evaluate the nondiscriminatory justifications offered, its 

conclusions are entitled to deference on appeal.‘ ‖ (People v. Lenix (2008) 44 

Cal.4th 602, 613–614.)‘ ([People v. Vines (2011)] 51 Cal.4th 830, 848.)‖ (Maj. 

opn., ante, at p. 80.) So far so good: Deference is appropriate where the trial 

court makes ―a sincere and reasoned effort‖ to evaluate the prosecutor‘s stated 

reasons for striking a minority juror.

I have no doubt the trial court in this case was sincere. But the record 

provides no basis for us to conclude that the trial court made a reasoned effort to 

analyze the prosecutor‘s explanations for the strikes. There is no reasoning in the 

trial court‘s statement that ―no discriminatory intent is inherent in the 

explanations, and the reasons appear to be race neutral.‖ Moreover, when defense 

counsel noted that ―[Juror No. 12] is also unmarried‖ in response to the 

prosecutor‘s assertion that he struck prospective juror M.H. in part because 

―[M.H.] is single,‖ the trial court was ―[a]pparently confused by counsel‘s remark‖ 

and did not probe the comparison. (Maj. opn., ante, at p. 79; see People v. Lenix

(2008) 44 Cal.4th 602, 624 (Lenix) [trial courts are best positioned to consider 

comparative juror analysis].) Taken at face value, the trial court‘s mere 

observation that ―no discriminatory intent is inherent in the explanations, and the 
5

reasons appear to be race neutral‖ (italics added) does not address whether the 

race-neutral reasons given by the prosecutor were the actual reasons motivating 

the strikes. The inquiry at Batson‘s third stage requires more than a determination

of inherent or apparent plausibility; it ―requires the judge to assess the plausibility 

of [the prosecutor‘s stated] reason in light of all evidence with a bearing on it.‖ 

(Miller-El, supra, 545 U.S. at p. 252.) Nothing in the record shows that the trial 

court conducted the requisite inquiry.

Today‘s opinion attempts to fill the gap in two ways. First, it says the trial 

court‘s ―assertion that no discriminatory intent was  ̳inherent‘ in the prosecutor‘s 

explanations is reasonably read as a determination that the court believed them to 

be true.‖ (Maj. opn., ante, at p. 87.) But that reading of the word ―inherent‖ is as 

strained as it is ironic in light of this court‘s own usage of the word in this context. 

(See Williams, supra, 56 Cal.4th at p. 653 [a prosecutor‘s explanation is

―inherently plausible‖ if it is ―  ̳not inherently implausible‘ ‖].) Further, right after 

the trial court used the word ―inherent,‖ it said ―the reasons appear to be race 

neutral‖ (italics added). If the trial court had made a determination that the 

prosecutor‘s reasons were in fact true, why didn‘t it just say so and provide its 

analysis instead of using doubly qualified, conclusory language? It is this court 

that ―parses the [trial] court‘s words too closely‖ (maj. opn., ante, at p. 87) instead 

of giving them their plain meaning.

Second, today‘s opinion says the trial ―court asked for the relevant juror

questionnaires, and it presumably reviewed them. No reason appears to conclude 

the court failed to consider all the factors bearing on the prosecutor‘s credibility, 

including his demeanor, the inherent reasonableness or improbability of his 

proffered explanations, their plausible basis in accepted trial strategy, the court‘s 

own observation of the relevant jurors‘ voir dire, its experience as a trial lawyer 

and judge in the community, and the common practices of the prosecutor‘s office 
6

and the individual prosecutor himself.‖ (Maj. opn., ante, at pp. 87–88. But cf. 

Adkins v. Warden (11th Cir. 2013) 710 F.3d 1241, 1254 [―trial court‘s personal 

experience with and opinion about the reputation of the prosecutor‖ was not a 

proper consideration at Batson‘s third stage because it was ―non-record evidence 

which [the defendant] did not have an opportunity to rebut‖].) There is a wide 

chasm, however, between the absence of reasons to conclude that the trial court 

did not conduct a proper Batson analysis and the presence of reasons to conclude 

that it did. (See Snyder, supra, 552 U.S. at p. 479 [reviewing court may not credit 

juror demeanor as the reason for a strike where the trial court made no ―specific 

finding on the record concerning [the juror‘s] demeanor‖ and ―simply allowed the 

challenge without explanation‖].) If a reviewing court can simply fill the void 

with a massive pile of presumptions, then we can be assured that many trial courts 

will continue to deny Batson claims without reasoned explanation. Indeed, we 

might as well dispense with appellate review in such cases since it is so easy to 

rationalize a silent record with a cacophony of presumptions.

The court knows we cannot actually do this under Miller-El and Snyder, so 

its real answer to the problem of unexplained Batson rulings is the following: ―we 

have made clear that  ̳the trial court is not required to explain on the record its 

ruling on a Batson/Wheeler motion. (People v. Reynoso [(2003)] 31 Cal.4th [903,] 

919.) ―When the prosecutor‘s stated reasons . . . are both inherently plausible and 

supported by the record, the trial court need not question the prosecutor or make 

detailed findings.‖ (People v. Silva (2001) 25 Cal.4th 345, 386.)‘ ([People v. 

Vines (2011)] 51 Cal.4th 830, 849.)‖ (Maj. opn., ante, at p. 87, italics added.) 

―  ̳ ―  ̳ ―[T]he trial court is not required to make specific or detailed comments for 

the record to justify every instance in which a prosecutor‘s race-neutral reason for 

exercising a peremptory challenge is being accepted by the court as genuine.‖ ‘ ‖ 

(People v. Stanley [(2006)] 39 Cal.4th [913,] 936.)‘ ‖ (Id. at p. 80.)
7

The swarm of internal quotation marks around the rule stated above 

indicates that this court has often found it to be a handy tool in rejecting Batson

claims. The discussion in part II below excavates the tenuous origins of this rule 

in our Batson jurisprudence. Here I focus on how our application of the rule 

dilutes the proper inquiry at Batson‘s third step.

The problem, in a nutshell, is this: Our court routinely holds that so long as 

the prosecutor‘s stated reason for striking a minority juror is (1) inherently 

plausible and (2) supported by the record, we must presume that the trial court‘s 

denial of a Batson motion, even if rendered without any explicit findings or 

analysis, was premised on a full inquiry into all the relevant circumstances bearing 

on the credibility of the prosecutor‘s explanation. That presumption, in turn, 

entitles the trial court‘s ruling to deference on appeal. But to say that a 

prosecutor‘s stated reason is inherently plausible is only to say that it is ―not 

 ̳inherently implausible.‘ ‖ (Williams, supra, 56 Cal.4th at p. 653.) That is a far 

cry from evaluating whether the stated reason was likely the actual reason for a 

particular strike given the totality of relevant circumstances. And to say that a 

prosecutor‘s stated reason is ―supported by the record‖ is only to say that there is 

some evidence to support the reason or (in an even weaker formulation) that the 

stated reason is not contradicted by the record. (People v. Reynoso (2003) 31 

Cal.4th 903, 929 (Reynoso).) Again, that is a far cry from inquiring, based on all 

relevant circumstances, how likely it is that the stated reason was the actual reason 

for the strike. The Batson inquiry ultimately requires an assessment of 

likelihoods; it is the defendant‘s burden to prove that ―it was more likely than not

that the challenge was improperly motivated.‖ (Johnson, supra, 545 U.S. at 

p. 170.) An explanation can be plausible without being likely, and an explanation 

can be supported by some evidence or uncontradicted by the record without being 

likely based on the totality of relevant circumstances. I do not see how the fact 
8

that a proffered reason is inherently plausible and supported by the record enables 

us to presume that the trial court actually reached a decision as to whether it was 

more likely than not that the proffered reason was pretextual in light of all relevant 

circumstances.

This analytical gap and related errors are apparent in several aspects of 

today‘s opinion. Consider the court‘s discussion of the strike against prospective 

juror M.H. On her juror questionnaire, M.H. indicated that she was a 40-year-old 

computer consultant with a bachelor‘s degree in math and computer science. She 

was single and had no children. She had formed no opinions about the present 

case and expressed no hesitations about her ability to follow the court‘s 

instructions and serve as an impartial juror. When asked for her general feelings 

about the death penalty, M.H. wrote ―I am for the death penalty.‖ When asked 

whether the death penalty has been given too often, too seldom, or randomly, 

M.H. wrote ―I feel the death penalty has been used appropriately. Especially 

given that some of the defendants have spent years on death row.‖ M.H. further 

indicated that her views on the death penalty had not changed in the last few years. 

M.H. did not support or belong to any victim rights groups; she did not belong to 

any group advocating either abolition or increased use of the death penalty; she 

did not have any close friends or relatives who had been arrested or convicted of a 

crime. M.H. said her views on capital punishment would not cause her to 

automatically vote for or against the death penalty without considering the 

aggravating and mitigating evidence presented.

At voir dire, when defense counsel asked whether her support for the death 

penalty stemmed from ―some experience of your own,‖ M.H. said: ―Oh, no, no, 

not personally. But I figure if someone came to my house and blew my family 

away, I would flip the switch. But that‘s personal, that‘s why I believe in it. But I 

don‘t — I wouldn‘t sit here and tell this young man, okay, you need it because you 
9

killed somebody, I think there [are] also circumstances. But I know if it was my 

family, I couldn‘t honestly say that I wouldn‘t be emotional about it.‖ On further 

questioning, M.H. confirmed she had no personal experiences related to the death 

penalty but again said ―if it was me personally and my family, that‘s totally 

different for me.‖

The prosecutor gave the following explanation for striking M.H.: ―[M.H.] 

is single. She has no children. She is younger than the juror I prefer. She is in her 

30‘s. She is also, her attitude regarding the death penalty was personal and 

emotional, not philosophical. She was the one who talked about, if it was my 

family I could understand it. But primarily the reason [is] she is young, single and 

no children. There [are] no other jurors on the jury presently who fit that pattern.‖

In assessing the prosecutor‘s explanation, today‘s opinion says that M.H.‘s 

statements at voir dire ―could give rise to a reasonable concern that her willingness 

to impose this punishment might be influenced by her degree of direct interest in 

the case‖ (maj. opn., ante, at p. 82) and that the prosecutor ―could reasonably be 

concerned about her ability to give the death penalty fair consideration when a 

family member was not a victim‖ (id. at p. 83). The word ―could‖ makes it hard to 

disagree insofar as one cannot say that the court‘s posited reading of M.H.‘s 

remarks is entirely implausible. But even if plausible, is it likely that a reasonable 

person would have understood M.H.‘s statements that way? M.H. clearly stated 

that her support for the death penalty was unrelated to any personal experience 

(―Oh, no, no, not personally‖). She wrote on her questionnaire that ―I am for the 

death penalty‖ and that her view had not changed in the last few years. She 

further indicated that ―I feel the death penalty has been used appropriately. 

Especially given that some of the defendants have spent years on death row.‖ It 

does not seem likely that a person familiar with M.H.‘s questionnaire and her full 

answers at voir dire would have understood her support for the death penalty to be, 
10

as the prosecutor put it, ―personal and emotional, not philosophical.‖ M.H.‘s 

remarks simply conveyed that she would have an emotional reaction if her family 

were murdered (―I would flip the switch‖), not that she did not support or could 

not apply the death penalty in other circumstances.

The court attempts to buttress the prosecutor‘s explanation with the 

following statement: ―Moreover, as the Attorney General observes, M.H.‘s 

somewhat testy exchange with defense counsel ( ̳are you misunderstanding me?‘) 

could also, in combination with the prosecutor‘s personal observation of this 

prospective juror, persuade him her relative youth was a sign of immaturity.‖ 

(Maj. opn., ante, at p. 83.) But the inclusion of this sentence in the court‘s Batson

analysis is wrong on two counts. First, the prosecutor said one reason he struck 

M.H. was that ―she is young‖ and ―younger than the juror I prefer.‖ The 

prosecutor said nothing about ―immaturity.‖ The prosecutor might have treated 

youth as a proxy for liberal views, compassion for criminal defendants, or 

something else. We do not know what underlies the prosecutor‘s preference, and 

neither the Attorney General nor this court may shore up a reason that the

prosecutor actually gave with a reason he did not give. (See Miller-El, supra, 545 

U.S. at p. 252 [―[A] prosecutor simply has got to state his reasons as best he can 

and stand or fall on the plausibility of the reasons he gives. . . . If the stated reason 

does not hold up, its pretextual significance does not fade because a trial judge, or 

an appeals court, can imagine a reason that might not have been shown up as 

false.‖].) Second, under Snyder, we have no basis to credit ―the prosecutor‘s 

personal observation of this prospective juror‖ (maj. opn., ante, at p. 83) as part of 

the basis for the strike because ―the record does not show that the trial judge 

actually made a determination concerning [M.H.‘s] demeanor.‖ (Snyder, supra, 

552 U.S. at p. 479.)
11

Moreover, the court dismisses the import of comparing M.H. to Juror No. 

12 on the ground that ―Juror No. 12 expressed much stronger views in favor of the 

death penalty. Nothing indicates the prosecutor was wrong in suggesting that 

when M.H.‘s age, familial status, and death penalty views were considered 

together, she was unique among the jurors who had been evaluated at the time the 

prosecutor excused her.‖ (Maj. opn., ante, at p. 83.) But recall what the 

prosecutor actually said in striking M.H.: ―[M.H.] is single. She has no children. 

She is younger than the juror I prefer. She is in her 30‘s. She is also, her attitude 

regarding the death penalty was personal and emotional, not philosophical. She 

was the one who talked about, if it was my family I could understand it. But 

primarily the reason [is] she is young, single and no children. There [are] no other 

jurors on the jury presently who fit that pattern.‖ The prosecutor begins with his 

concern that M.H. is young (she was actually 40, not ―in her 30‘s‖), single, and 

without children. He then discusses M.H.‘s death penalty views. At the end, he 

pivots and prioritizes his opening concern: ―But primarily the reason [is] she is 

young, single and no children. There [are] no other jurors on the jury presently 

who fit that pattern.‖ (Italics added.) It may be possible to construe ―that pattern‖ 

to encompass M.H.‘s death penalty views in addition to her age and familial 

status. But again, even if such an interpretation is plausible, is it likely that that is 

what the prosecutor meant? When the prosecutor‘s last two sentences are read 

together, the most natural understanding of his assertion that ―There [are] no other 

jurors on the jury presently who fit that pattern‖ is that he believed no other jurors 

were ―young, single and no children.‖ And on this point, the record shows that 

two seated jurors close in age to M.H. were single and without children: Juror No. 

1 (age 45) and Juror No. 12 (age 43).

Even if we were to fold in the prosecutor‘s comments about M.H.‘s death 

penalty views as part of ―that pattern,‖ we would have to acknowledge, as 
12

discussed above, that those comments offer an unlikely (even if plausible) 

rendition of the views she expressed. And once that is acknowledged, it seems 

doubtful to say that ―Juror No. 12 expressed much stronger views in favor of the 

death penalty‖ than M.H. did. (Maj. opn., ante, at p. 83.) As to his general 

feelings about the death penalty, Juror No. 12 wrote on his questionnaire ―I‘m for 

it,‖ whereas M.H. wrote ―I am for the death penalty.‖ Juror No. 12 indicated he 

felt the death penalty is used ―too seldom‖ and noted ―too many appeals that take 

too long‖; M.H. said ―I feel the death penalty has been used appropriately. 

Especially given that some of the defendants have spent years on death row.‖ 

Juror No. 12 qualified his views by indicating that ―if court proved to me that 

defendant should be spared death – I might not vote death.‖ Further, he noted that 

his ability to serve as an impartial juror might be affected if ―defendant said he‘d 

found God and should be spared for that reason.‖ On her questionnaire, M.H. did 

not qualify her support for the death penalty in any way. The principal difference 

between Juror No. 12 and M.H. is that Juror No. 12 wrote on his questionnaire that 

his cousin-in-law was a fireman who had tried to save the murder victim and that 

he had already formed an opinion that defendant deserved the death penalty. But

we can hardly cite Juror No. 12‘s preconception about this case (as distinct from 

his views about the death penalty in general) as a proper basis for differentiating 

him from M.H., since we have upheld the trial court‘s refusal to excuse Juror No. 

12 for cause on the ground that during voir dire he ―consistently indicated that he 

could and would subordinate his views, carefully weigh and consider the 

aggravating and mitigating evidence as instructed, vote for either death or life 

without parole as appropriate, and sit fairly in accordance with the juror‘s oath.‖ 

(Maj. opn., ante, at p. 76.) Whether there were other differences between Juror 

No. 12 and M.H. is something we do not know because the trial court, despite 

defense counsel‘s prompting, did not conduct a comparative juror analysis.
13

In the end, the court finds only that ―the prosecutor‘s reasons were 

plausible and, in all essential respects, supported‖ (maj. opn., ante, at p. 87) 

because that is enough under our precedent to entitle the trial court‘s unexplained 

Batson ruling to deference on appeal. As shown above, this approach cannot be 

reconciled with the high court‘s mandate that ―in considering a Batson objection, 

or in reviewing a ruling claimed to be Batson error, all of the circumstances that 

bear upon the issue of racial animosity must be consulted.‖ (Snyder, supra, 552 

U.S. at p. 478, citing Miller-El, supra, 545 U.S. at p. 239; see Batson, supra, 476 

U.S. at p. 94.) Tellingly, today‘s opinion nowhere actually says that the trial court 

or this court has independently determined, based on all relevant circumstances, 

that it was not more likely than not that the prosecutor‘s strikes of the three black 

prospective jurors were motivated by race. As in Williams, our decision today 

results in ―the denial of defendant‘s Batson claim despite the fact that no court, 

trial or appellate, has ever conducted a proper Batson analysis.‖ (Williams, supra, 

56 Cal.4th at p. 700 (dis. opn. of Liu, J.).)

II.

Although the legal shortcuts that pervade the Batson analysis in today‘s 

opinion are troubling, the reality is that habits of unwarranted deference, 

speculative inference, and overreliance on gap-filling presumptions have been 

entrenched in our Batson jurisprudence for some time now. As I discuss in People 

v. Harris (Aug. 26, 2013, S081700) __ Cal.4th __, __ [at pp. 33–34] (Harris) 

(conc. opn. of Liu, J.), also filed today, this court has found only one instance of 

unlawful discrimination in jury selection among the 102 cases that have raised 

Batson claims over the past 20 years, and none among the 59 cases that postdate 

Miller-El. This improbable record is attributable, at least in part, to the erroneous 

legal framework that we continue to apply in evaluating Batson claims. In Harris, 

I discuss the problematic development of our case law on what is required to 
14

establish an inference of discrimination at Batson‘s first step. (Harris, at pp. __–

__ [at pp. 24–28] (conc. opn. of Liu, J.).) Here I trace the development of our 

erroneous rule of deference at Batson‘s third step.

A.

The deferential approach we apply to unexplained Batson rulings was not 

always a part of our law. In the wake of People v. Wheeler (1978) 22 Cal.3d 258, 

our state-law forerunner of Batson, this court in People v. Hall (1983) 35 Cal.3d 

161 (Hall) emphasized that a trial court, in considering a Wheeler motion, must 

make ―a sincere and reasoned attempt to evaluate the prosecutor‘s explanation in 

light of the circumstances of the case as then known, his knowledge of trial 

techniques, and his observations of the manner in which the prosecutor has 

examined members of the venire and has exercised challenges.‖ (Id. at pp. 167–

168.) We did not clearly define what a trial court must do in order to demonstrate 

that it had made this inquiry, nor did we connect a trial court‘s failure to conduct 

this inquiry with the level of deference owed on appeal. But we did suggest that a 

trial court must undertake more than a summary denial if there was some basis for 

questioning the prosecutor‘s reasons. In Hall, we evaluated the prosecutor‘s 

explanations and found that some were ―suggestive of bias‖ and ―demanded 

further inquiry on the part of the trial court.‖ (Id. at pp. 168–169.) ―Yet the trial 

court apparently considered itself bound to accept all of the prosecutor‘s 

explanations at face value, expressing the view that group bias is shown only when 

a prosecutor declares an intent to exclude all members of an ethnic group from the 

jury. Such abdication is inconsistent with the court‘s obligations under Wheeler, 

and on authority of that case must be held to constitute error requiring reversal.‖ 

(Id. at p. 169, fn. omitted.)

In People v. Turner (1986) 42 Cal.3d 711 (Turner), we applied Hall‘s 

requirement that trial courts make a ―sincere and reasoned attempt to evaluate the 
15

prosecutor‘s explanation‖ for striking a minority juror (Hall, supra, 35 Cal.3d at 

p. 167). The trial court in Turner had denied defendant‘s Batson motion without 

comment. We observed that ―the prosecutor‘s explanations were either 

implausible or suggestive of bias. They therefore  ̳demanded further inquiry on 

the part of the trial court‘ ([Hall] at p. 169), followed by a  ̳sincere and reasoned‘ 

effort by the court to evaluate their genuineness and sufficiency in light of all the 

circumstances of the trial (id., at p. 167, italics added). Each step is  ̳imperative, if 

the constitutional guarantee is to have real meaning‘ (ibid.). [¶] We conclude that 

. . . the prosecution failed to sustain its burden of showing that the challenged 

prospective jurors were not excluded because of group bias [citation], and as in 

Hall the court failed to discharge its duty to inquire into and carefully evaluate the 

explanations offered by the prosecutor [citation].‖ (Turner, at p. 728.) On that 

basis, the court reversed the capital conviction. (Ibid.)

We found reversible error on similar grounds in three subsequent capital 

cases, all without dissent. In People v. Snow (1987) 44 Cal.3d 216, the court, in a 

unanimous opinion by Chief Justice Lucas, determined that ―it strongly appears 

that the trial judge . . . simply accepted at face value the prosecutor‘s denials of 

group bias, without making any  ̳sincere and reasoned attempt‘ to evaluate the 

prosecutor‘s motives. Under Hall,  ̳[s]uch abdication is inconsistent with the 

court‘s obligations under Wheeler . . . .‘ ([Hall, supra,] 35 Cal.3d at p. 169.)‖ (Id.

at p. 226.) Similarly, People v. Fuentes (1991) 54 Cal.3d 707 (Fuentes) held that 

the trial court failed to conduct ―a truly  ̳reasoned attempt‘ to evaluate the 

prosecutor‘s explanations‖ because it did not ―address the challenged jurors 

individually to determine whether any one of them has been improperly 

excluded.‖ (Id. at p. 720.) Notably, the court in Fuentes ―reemphasize[d] the trial 

court‘s role in making an adequate record when dealing with a Wheeler motion. 

Notwithstanding the deference we give to a trial court‘s determinations of 
16

credibility and sincerity, we can only do so when the court has clearly expressed 

its findings and rulings and the bases therefor.‖ (Id. at p. 716, fn. 5, italics added.) 

A decade later, in People v. Silva (2001) 25 Cal.4th 345 (Silva), we observed that 

the trial court had failed to probe discrepancies between the prosecutor‘s stated 

reasons and the record of voir dire, and we held that ―[o]n this record, we are 

unable to conclude that the trial court met its obligations to make  ̳a sincere and 

reasoned attempt to evaluate the prosecutor‘s explanation‘ ([Hall, supra, 35 Cal.3d 

at pp. 167–168]) and to clearly express its findings ([Fuentes, at p. 716, fn. 5]).‖ 

(Silva, at p. 385.)

B.

As it turns out, Silva now stands as the sole instance during the past 20 

years in which this court has found a Batson error. An early sign of erosion of 

Hall‘s ―sincere and reasoned‖ evaluation requirement appeared in People v. 

Johnson (1989) 47 Cal.3d 1194, where a divided court accorded deference to the 

trial court‘s summary and unexplained ruling even though there was some reason 

to question the prosecutor‘s reasons. Justice Mosk, joined by Justice Broussard, 

observed in dissent that the trial court, instead of actually inquiring into the 

prosecutor‘s explanations, simply said that the prosecutor had stated his reasons 

for striking eight minority jurors and then ―continued its oral ruling with a 

rambling statement‖ at best implying that the stated reasons were facially neutral, 

not that they were ―bona fide.‖ (Id. at pp. 1289–1290 (dis. opn. of Mosk, J.).) But 

the court, after criticizing the dissent for engaging in comparative juror analysis

and for questioning the plausibility of some of the prosecution‘s explanations, 

emphasized the deference owed to the trial court: ―Here an experienced trial judge 

saw and heard the entire voir dire proceedings by which defendant‘s jury was 

selected. The record indicates he was aware of his duty under Wheeler to be 

sensitive to the manner in which peremptory challenges were used. He found no 
17

improper use of the peremptory challenges by the prosecutor. Under these 

circumstances we see no good reason to second-guess his factual determination.‖ 

(Id. at p. 1221.)

Thereafter, the court cited People v. Johnson in two cases upholding what 

were essentially summary denials of Batson claims. People v. Cummings (1993) 4 

Cal.4th 1233 explained that ―[t]he prosecutor offered adequate justification, 

unrelated to group bias, for the exercise of peremptory challenges. [Citations.] It 

was not necessary for the court to make additional inquiry. There is no basis in 

the record for the assertion that the court failed to scrutinize the prosecutor‘s 

reasons to determine if they were pretextual.‖ (Id. at p. 1282.) And the court in

People v. Jackson (1996) 13 Cal.4th 1164 said that ―Wheeler does not require the 

trial court to conduct further inquiry into the prosecutor‘s race-neutral 

explanations if, as here, it is satisfied from its observations that any or all of them 

are proper.‖ (Id. at p. 1198.)

The court in Silva attempted to reconcile cases like Johnson, Cummings, 

and Jackson with Hall‘s ―sincere and reasoned‖ evaluation requirement as well as 

the requirement that the trial court ―clearly express[] its findings and rulings and 

the bases therefor‖ (Fuentes, supra, 54 Cal.3d at p. 716, fn. 5). On its facts, Silva

was a straightforward case. The prosecutor all but announced at the outset of jury 

selection that he planned to discriminate on the basis of race because a previous 

hung jury in the penalty phase had divided on racial lines. (Silva, supra, 25 

Cal.4th at pp. 375–376.) He struck five Hispanic jurors and, when asked to 

explain, gave reasons that were directly contradicted by the record. (Id. at 

pp. 379–381.) The trial court nevertheless denied the defendant‘s motion without 

probing ―the obvious gap‖ between the prosecutor‘s reasons and the record. (Id. at 

p. 385.) This court reversed the death verdict. (Id. at p. 386.)
18

In a critical paragraph, the court in Silva said: ―Although we generally 

 ̳accord great deference to the trial court‘s ruling that a particular reason is 

genuine,‘ we do so only when the trial court has made a sincere and reasoned 

attempt to evaluate each stated reason as applied to each challenged juror. 

[Citations.]‖ (Silva, supra, 25 Cal.4th at pp. 385–386.) This principle, echoing 

Fuentes and Hall, was the ground on which Silva was decided. (See Silva, at 

pp. 385 [―On this record, we are unable to conclude that the trial court met its 

obligations to make  ̳a sincere and reasoned attempt to evaluate the prosecutor‘s 

explanation‘ ([Hall, supra, 35 Cal.3d at pp. 167–168]) and to clearly express its 

findings ([Fuentes, supra, 54 Cal.3d at p. 716, fn. 5]).‖].) However, the court in 

Silva went on to add the following two sentences: ―When the prosecutor‘s stated 

reasons are both inherently plausible and supported by the record, the trial court 

need not question the prosecutor or make detailed findings. But when the 

prosecutor‘s stated reasons are either unsupported by the record, inherently 

implausible, or both, more is required of the trial court than a global finding that 

the reasons appear sufficient.‖ (Silva, at p. 386.) The second of these two 

sentences addressed the circumstances in Silva. The first sentence, however, was 

dicta; the court had no occasion in Silva to decide what inquiry or findings a trial 

court must make when a prosecutor‘s stated reasons are inherently plausible and 

supported by the record. Nevertheless, these two sentences have come to 

comprise the rule that crucially qualifies the trial court‘s obligation to make a 

sincere and reasoned attempt to evaluate the prosecutor‘s explanations at Batson‘s 

third stage.

Two years later, the court in Reynoso turned Silva‘s dicta into doctrine. In 

that case involving two Hispanic defendants, the prosecutor exercised only four 

peremptory challenges, the last two of which were directed at the only two 

Hispanic prospective jurors then on the panel. (Reynoso, supra, 31 Cal.4th at 
19

p. 909.) After the trial court found that the defense had established a prima facie 

case of discrimination, the prosecutor explained that he struck one of the two 

Hispanic panelists, Elizabeth G., because she was a ―  ̳customer service 

representative‘ ‖ and therefore ―  ̳did not have enough educational experience,‘ ‖ 

and because ―  ̳[i]t seemed like [Elizabeth G.] was not paying attention to the 

proceedings and . . . that she was not involved in the process.‘ ‖ (Id. at p. 911.) 

The trial court immediately ruled as follows: ―  ̳And I accept those reasons as 

being not based upon race or ethnicity. And I don‘t find that there has been a 

violation of Wheeler and that the — there was not a systematic exclusion of a 

recognized ethnic group, i.e., Hispanics in this case. So the motion is denied.‘ ‖ 

(Ibid.) Defense counsel then argued that nothing in Elizabeth G.‘s demeanor 

justified the strike. (Id. at pp. 911–912.) The trial court did not comment further

except to note that the defense had also struck one Hispanic panelist. (Id. at 

pp. 912–913.)

This court, in a four-to-three decision, upheld the trial court‘s ruling. While 

acknowledging that a trial court ―  ̳must ―make a sincere and reasoned attempt to 

evaluate the prosecutor‘s explanation . . . .‖ (People v. Hall (1983) 35 Cal.3d 161, 

167–168)‘ [Citation],‖ the court in Reynoso said that ―in fulfilling that obligation, 

the trial court is not required to make specific or detailed comments for the record 

to justify every instance in which a prosecutor‘s race-neutral reason for exercising 

a peremptory challenge is being accepted by the court as genuine. This is 

particularly true where the prosecutor‘s race-neutral reason for exercising a 

peremptory challenge is based on the prospective juror‘s demeanor, or similar 

intangible factors, while in the courtroom.‖ (Reynoso, supra, 31 Cal.4th at 

p. 919.) The court went on to highlight the dicta from Silva that ―  ̳[w]hen the 

prosecutor’s stated reasons are both inherently plausible and supported by the 

record, the trial court need not question the prosecutor or make detailed 
20

findings.‘ ‖ (Reynoso, at p. 923, quoting Silva, supra, 25 Cal.4th at p. 386, italics 

added by Reynoso.)

The court then determined that the trial court had satisfied its obligations 

and that its ruling was entitled to deference. The court acknowledged that the 

prosecutor‘s first reason for striking Elizabeth G. — her lack of ―  ̳educational 

experience‘ ‖ — was ―of questionable persuasiveness,‖ at least ―when viewed 

objectively.‖ (Reynoso, supra, 31 Cal.4th at p. 924.) But her ―answers to the 

general questions‖ did confirm that she worked as customer service representative. 

(Ibid.) Noting that she also had ―no prior jury experience and no past contact with 

the criminal justice system‖ — facts not mentioned by the prosecutor in explaining 

this strike — the court concluded that a prosecutor ―arguably could conclude in 

sincerity‖ that a prospective juror like Elizabeth G. ―would not be the best type of 

juror for the case.‖ (Id. at pp. 924–925.) The court justified this conclusion with 

additional speculation: ―Such a determination might be further supported by a 

myriad of factors readily observable by those present in the courtroom, but not by 

those who are reviewing the case from a cold transcribed record on appeal.‖ (Id.

at p. 925.)

As to the prosecutor‘s second reason for striking Elizabeth G. — that she 

appeared inattentive — the court acknowledged that ―the trial court made no 

attempt to clarify or probe the prosecutor‘s reasons for finding Elizabeth G.‘s 

demeanor while in the jury box unsuited to jury service.‖ (Reynoso, supra, 31 

Cal.4th at p. 926.) ―But,‖ the court said, ―the trial court did expressly accept the 

prosecutor‘s race-neutral reasons for the peremptory challenge to Elizabeth G., 

finding them sincere and genuine. Since the trial court was in the best position to 

observe the prospective jurors‘ demeanor and the manner in which the prosecutor 

exercised his peremptory challenges, the implied finding, that the prosecutor‘s 

reasons for excusing Elizabeth G., including the demeanor-based reason, were 
21

sincere and genuine, is entitled to  ̳great deference‘ on appeal. [Citations.]‖ (Ibid., 

italics added.) The court added that it found nothing ―in the record to directly 

contradict‖ the trial court‘s ruling and noted that the prosecutor accepted the jury 

―14 times with Elizabeth G. seated in the jury box.‖ (Ibid.)

Reynoso went on to state the following rule, which is now boilerplate 

language in our case law: ―Where . . . the trial court is fully apprised of the nature 

of the defense challenge to the prosecutor‘s exercise of a particular peremptory 

challenge, where the prosecutor‘s reasons for excusing the juror are neither 

contradicted by the record nor inherently implausible (Silva, supra, 25 Cal.4th at 

p. 386), and where nothing in the record is in conflict with the usual presumptions 

to be drawn, i.e., that all peremptory challenges have been exercised in a 

constitutional manner, and that the trial court has properly made a sincere and 

reasoned evaluation of the prosecutor‘s reasons for exercising his peremptory 

challenges, then those presumptions may be relied upon, and a Batson/Wheeler

motion denied, notwithstanding that the record does not contain detailed findings 

regarding the reasons for the exercise of each such peremptory challenge.‖ 

(Reynoso, supra, 31 Cal.4th at p. 929.)

Justice Kennard, joined by Justice Werdegar and Justice Moreno, dissented. 

Justice Kennard observed that in ―[b]rushing . . . aside‖ the fact that the trial court 

had ruled on the Batson motion without questioning the prosecutor, making 

particularized findings, stating the proper legal standard, or addressing the factual 

disputes raised by the defense, the court had ―indulge[d] a presumption that both 

the prosecutor and the trial court acted properly, thereby adopting a standard of 

appellate review that effectively insulates discriminatory strikes from meaningful 

scrutiny at both the trial and appellate stages.‖ (Reynoso, supra, 31 Cal.4th p. 930 

(dis. opn. of Kennard, J.).) According to Justice Kennard, the prosecutor‘s 

reliance on Elizabeth G.‘s employment as a customer service representative was 
22

the sort of implausible explanation that required further investigation and explicit 

findings, and the trial court made no effort to resolve the disputed claim that 

Elizabeth G. had not been paying attention. (Id. at pp. 931–932). ―Appellate 

deference is unwarranted where, as here, the record supplies many reasons to 

doubt that the trial court even made a credibility determination, much less a 

determination resulting from a sincere and reasoned effort.‖ (Id. at p. 935.)

Justice Moreno authored a separate dissent joined by Justice Kennard and 

Justice Werdegar. After observing that the record did not support either of the 

prosecutor‘s stated reasons for striking Elizabeth G. (Reynoso, supra, 31 Cal.4th at 

pp. 940–942 (dis. opn. of Moreno, J.)), Justice Moreno concluded: ―Whereas 

Silva held that a trial court‘s obligation to inquire was triggered by a race-neutral 

excuse unsupported by the record, the majority today holds that such an obligation 

is triggered only where such an excuse is contradicted by the record. However, 

where the unexamined race-neutral excuse belies common sense or is contradicted 

by defense counsel, we cannot presume that the prosecutor has exercised the 

peremptory challenge in a constitutional manner.‖ (Id. at p. 943; see id. at p. 940 

[―today, without a sound basis in logic or law, a majority of this court elevates 

Silva‘s  ̳unsupported by the record‘ standard to a much stricter  ̳contradicted by 

the record‘ standard‖].)

The rule set forth in Reynoso, which departed in essential respects from 

Silva, Fuentes, and Hall, effectively put this court on a glide path toward affirming 

unexplained trial court rulings denying Batson motions. As demonstrated by our 

repeated quotation and application of Reynoso‘s rule in case after case, it has been 

easy for the court to find a prosecutor‘s stated reasons to be inherently plausible 

and either supported or not contradicted by the record, and then to defer to the trial 

court‘s ruling on that basis. (See, e.g., maj. opn., ante, at pp. 80, 87; Williams, 

supra, 56 Cal.4th at pp. 653–659; People v. Vines (2011) 51 Cal.4th 830, 849–
23

850; People v. Watson (2008) 43 Cal.4th 652, 670–673; People v. Guerra (2006) 

37 Cal.4th 1067, 1103.)

C.

This court has never reconsidered Reynoso in light of the high court‘s 

decisions in Miller-El and Snyder, even though those authorities call into serious 

question our rule of deference to unexplained Batson rulings. Contrary to 

Reynoso, the high court in Snyder squarely held that a reviewing court may not

accept a prosecutor‘s demeanor-based explanation for striking a minority juror in 

the absence of a trial court finding as to the juror‘s demeanor, at least where 

defense counsel has disputed the issue. (See Snyder, supra, 552 U.S. at p. 479 

[―Rather than making a specific finding on the record concerning Mr. Brooks‘

demeanor, the trial judge simply allowed the challenge without explanation. . . . 

[W]e cannot presume that the trial judge credited the prosecutor‘s assertion that 

Mr. Brooks was nervous.‖].)

More broadly, Miller-El and Snyder elucidate by example the careful and 

thorough inquiry required at Batson‘s third step, and those decisions make clear 

that the totality of circumstances relevant to evaluating the credibility of a 

prosecutor‘s stated reasons for striking a minority juror includes comparative juror 

analysis. (See Snyder, supra, 552 U.S. at pp. 479–485; Miller-El, supra, 545 U.S. 

at pp. 240–266.) Our precedent indulges the presumption that a trial court has 

conducted this rigorous inquiry, despite no indication in the record that it did, so 

long as the prosecutor‘s stated reason is inherently plausible and not contradicted 

by the record. However, by packing into a presumption the entire inquiry into ―the 

plausibility of [the prosecutor‘s stated] reason in light of all evidence with a 

bearing on it‖ (Miller-El, supra, 545 U.S. at p. 252), we have ―adopt[ed] a 

standard of appellate review that effectively insulates discriminatory strikes from 

meaningful scrutiny at both the trial and appellate stages.‖ (Reynoso, supra, 31 
24

Cal.4th p. 930 (dis. opn. of Kennard, J.).) Our rule of deference to summary 

Batson rulings all but assumes the answer to the question that Batson analysis is 

designed to address.

As today‘s opinion demonstrates, the application of this rule of deference 

tends to foster judicial rationalization of a prosecutor‘s strikes in a manner that 

Batson does not permit. It is all too tempting for a reviewing court, in speculating 

on the possible dynamics in the courtroom, to posit reasons in support of a trial 

court‘s Batson ruling that the prosecutor did not give. As noted, the court in this 

case relies on a four-word comment by M.H. to defense counsel (―are you 

misunderstanding me?‖) to suggest that the prosecutor may have struck M.H. 

because ―her relative youth was a sign of immaturity,‖ even though the prosecutor 

cited only M.H.‘s youth, not her immaturity, as a reason for the strike. (Maj. opn., 

ante, at p. 83; see ante, at pp. 9–10.) And in Reynoso, the court reasoned that the 

fact that Elizabeth G. had ―no prior jury experience‖ and ―no prior contact with the 

criminal justice system‖ could support the sincerity of the prosecutor‘s strike, even 

though the prosecutor never mentioned those aspects of Elizabeth G.‘s background 

in explaining the strike. (Reynoso, supra, 31 Cal.4th at p. 925.) These maneuvers 

violate the high court‘s admonition that adjudication of a Batson challenge ―does 

not call for a mere exercise in thinking up any rational basis.‖ (Miller-El, supra, 

545 U.S. at p. 252.) A prosecutor‘s strike must ―stand or fall on the plausibility of 

the reasons he gives,‖ regardless of whether ―a trial judge, or an appeals court, can 

imagine a reason that might not have been shown up as false.‖ (Ibid.)

It is no doubt true that ―a myriad of factors readily observable by those 

present in the courtroom, but not by those who are reviewing the case from a cold 

transcribed record on appeal,‖ may properly inform a Batson ruling. (Reynoso, 

supra, 31 Cal.4th at p. 925.) For this reason, the trial court is in the best position 

to make the all-things-considered judgment required at Batson‘s third stage. 
25

When a trial court has conducted the requisite analysis and has articulated the 

findings that inform its Batson ruling, the principle of judicial restraint fully 

supports the application of deference on appeal. But when the ―myriad of factors 

readily observable to those present in the courtroom‖ is simply left to judicial 

speculation on appeal, the application of deference does not reflect restraint at all. 

It is instead an active imagining of inquiries and analyses that may or may not 

have occurred. Like my colleagues, I am confident that our trial courts approach 

the evaluation of Batson claims with competence and sincerity. But jury selection 

can be a complex process, and in the context of a particular strike, a trial court 

may have ―stopped taking notes‖ (Williams, supra, 56 Cal.4th at p. 651), it may 

have neglected to consult the record of voir dire (id. at p. 716 (dis. opn. of Liu, 

J.)), it ―may not have recalled [a juror‘s] demeanor‖ (Snyder, supra, 552 U.S. at 

p. 479), it may have declined to engage in comparative juror analysis despite the 

urging of counsel (maj. opn., ante, at p. 79), it may have applied an erroneous 

legal standard in assessing a Batson claim (Reynoso, at pp. 933–934 (dis. opn. of 

Kennard, J.), or it may have made an unreasonable judgment under the totality of 

circumstances (Miller-El, supra, 545 U.S. at p. 266). Filling these gaps on appeal 

with speculation and presumptions is not an exercise of judicial restraint. It is also

counterproductive. Our ―don‘t ask, don‘t tell‖ approach to appellate review —

whereby this court does not ask, when trial courts do not tell, the reasons for their 

Batson rulings — erodes the incentive for trial courts to articulate their findings 

and analysis, thereby heightening the frequency with which reviewing courts must 

resolve Batson claims on the basis of a paper record.

More fundamentally, in light of what decades of research have revealed 

about the stubborn role of race in jury selection (see Harris, supra, __ Cal.4th at 

pp. __–__ [at pp. 35–39] (conc. opn. of Liu, J.) [reviewing studies], it seems 

empirically suspect — if not downright unfair — to apply a rule of deference 
26

whose practical effect is to hold that what a trial court leaves unsaid in denying a 

Batson claim will be construed on appeal in favor of the prosecution. The Batson

inquiry ultimately focuses on the subjective genuineness of the prosecutor‘s stated 

reasons. It is a motive test, and short of a naked admission, it can be difficult to 

determine a person‘s motive with reasonable certainty. The law properly 

addresses this uncertainty by placing on the defendant the burden to prove it was 

more likely than not that the prosecutor‘s strike was motivated by race. The proof 

standard and the allocation of the burden to the defendant can be decisive in a 

close case, as I show below. (See post, at pp. 27–29.) But the law should not 

address the uncertainty by construing against the defendant all that we cannot 

know — because the trial court provided no findings or analysis — about what 

actually happened in the courtroom.

Our earlier precedent held trial courts to their obligation to make ―a sincere 

and reasoned attempt to evaluate the prosecutor‘s explanation‖ (Hall, supra, 35 

Cal.3d at p. 167) and underscored ―the trial court‘s role in making an adequate 

record‖ by declaring that ―[n]otwithstanding the deference we give to a trial 

court‘s determinations of credibility and sincerity, we can only do so when the 

court has clearly expressed its findings and rulings and the bases therefor‖

(Fuentes, supra, 54 Cal.3d at p. 716, fn. 5). Many trial courts do articulate the 

grounds for their Batson rulings, and it is entirely appropriate to make appellate 

deference contingent on this practice. For what is at issue is not some minor legal 

technicality, but a vital inquiry that implicates the most basic notions of fairness in 

our justice system. The United States Supreme Court has repeatedly emphasized 

the three-dimensional harm that results from racial discrimination in jury 

selection. The defendant is deprived of his ―right to be tried by a jury whose 

members are selected pursuant to non-discriminatory criteria.‖ (Batson, supra, 

476 U.S. at pp. 85–86.) The excluded juror ―suffers a profound personal 
27

humiliation heightened by its public character‖ and loses ―a significant 

opportunity to participate in civic life.‖ (Powers v. Ohio (1991) 499 U.S. 400, 

413–414, 409.) And ―[t]he harm from discriminatory jury selection extends 

beyond that inflicted on the defendant and the excluded juror to touch the entire 

community. Selection procedures that purposefully exclude black persons from 

juries undermine public confidence in the fairness of our system of justice.‖ 

(Batson, at p. 87; see Miller-El, supra, 545 U.S. at p. 238 [―[T]he very integrity of 

the courts is jeopardized when a prosecutor‘s discrimination  ̳invites cynicism 

respecting the jury‘s neutrality,‘ [citation], and undermines public confidence in 

adjudication [citations].‖]; Powers, at p. 412.) In light of these potential harms, it 

does not seem too much to insist that trial courts or, as a failsafe, reviewing courts 

demonstrate a truly reasoned effort to evaluate a defendant‘s assertion of this 

important right in light of all the circumstances bearing on it.

III.

Because we cannot defer to the trial court‘s Batson ruling in this case, we 

must independently examine the record to determine whether defendant has shown 

that it was more likely than not that one or more of the prosecutor‘s strikes were 

motivated by race.

The record shows that the prosecutor struck all three black prospective 

jurors in the venire. This fact properly raises a suspicion but does not by itself 

prove discrimination. The significance of the pattern is attenuated in this case by 

the fact that the prosecutor gave credible reasons for striking two of the black 

jurors, P.F. and L.P. In her questionnaire and voir dire, P.F. consistently said she 

viewed the death penalty as an appropriate punishment for a person who has 

shown ―a pattern‖ of violence or disregard for life. When the prosecutor asked 

P.F. if her focus on a pattern of behavior ―wasn‘t something exclusive,‖ she 

agreed. But P.F., when using her own words, did not voice support for the death 
28

penalty in terms other than as punishment for ―a pattern‖ of behavior, and no other 

seated or alternate juror expressed similar views. I thus conclude that the 

prosecutor‘s concern that P.F. had said ―in her questionnaire [that the death 

penalty] was appropriate only where there was a pattern of violent conduct‖ was, 

in all likelihood, not pretextual. And I reach the same conclusion about the 

prosecutor‘s strike of L.P. based on his concerns that ―[s]he is a social worker,‖ a 

fact unique to L.P. as compared to the seated and alternate jurors, and that ―she 

couldn‘t vote for the death penalty unless . . . the facts were proved beyond a 

shadow of a doubt,‖ a natural understanding of L.P.‘s remarks at voir dire.

Having found it improbable that the prosecutor struck P.F. or L.P. because 

of their race, I would examine the prosecutor‘s strike of M.H. without any 

suspicion arising from the fact that it occurred as part of an apparent pattern. Still, 

the strike appears suspicious because, as noted, the prosecutor‘s characterization 

of M.H.‘s attitude regarding the death penalty as ―personal and emotional, not 

philosophical‖ is a strained interpretation of what she said at voir dire, especially 

when considered in light of the views she indicated on her questionnaire. (Ante, at 

pp. 8–9.) Further, with respect to the prosecutor‘s concern that ―she is young, 

single and no children,‖ his claim that ―no other jurors . . . fit that pattern‖ appears 

questionable in light of the fact that two seated jurors, Juror No. 1 and Juror No. 

12, were single, childless, and close in age to M.H. (Ante, at pp. 10–11.) Juror 

No. 12‘s general views in favor of the death penalty were not very different from

M.H.‘s (ante, at pp. 11–12), and Juror No. 1 said on her questionnaire that the 

death penalty should be used ―[o]nly in extreme cases,‖ though during voir dire

she said she had no particular case in mind and ―it would depend on everything.‖

At the same time, comparative juror analysis reveals an important fact that 

supports the prosecutor‘s credibility. Besides M.H., three prospective jurors 

struck by the prosecutor were young, single, and without children: K.D. (age 28), 
29

A.L. (age 20), and T.F. (age 33). In addition, all three indicated support for the 

death penalty. K.D. wrote on her questionnaire that the death penalty ―should be 

imposed‖ in appropriate cases, and she said during voir dire that she would be able 

to follow the court‘s instructions and vote for death if the aggravating factors 

outweighed the mitigating factors. A.L. wrote that she had no strong ―personal 

feelings about the law‖ and would ―do what [she was] supposed to,‖ and affirmed 

during voir dire that she could personally vote to impose the death penalty. T.F. 

stated that he believed the death penalty was the ―appropriate and just 

punishment‖ in certain cases, and that he would ―disagree‖ with the Legislature if 

it were to get rid of it. The fact that the prosecutor struck three other young, 

single, and childless pro-death penalty jurors lends credence to the prosecutor‘s 

statement, in explaining why he struck M.H., that ―primarily the reason [is] she is 

young, single and no children‖ (italics added). By indicating that the prosecutor 

did not single out M.H. among all other prospective jurors possessing those 

characteristics, the prosecutor‘s strikes of K.D., A.L., and T.F. tend to diminish the 

inference of discrimination arising from the fact that the prosecutor did not also 

strike Juror No. 1 and Juror No.12, both of whom were slightly older than M.H.

Ultimately, the prosecutor‘s strikes of K.D., A.L., and T.F. make the 

possibility that he struck M.H. primarily because she was young, single, and 

without children at least as likely as the possibility that he struck M.H. because of 

her race. Based on an independent examination of the record, I conclude that 

defendant has not carried his burden of proving that it was more likely than not

that the prosecutor struck M.H. because of her race. Accordingly, defendant‘s 

Batson claim must be rejected.

In all other respects, I join the court‘s opinion affirming the judgment.

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Mai

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S089478

Date Filed: August 26, 2013

__________________________________________________________________________________

Court: Superior

County: Orange

Judge: Richard L. Weatherspoon

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and C. Delaine

Renard, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, 

Assistant Attorney General, Holly D. Wilkens and Adrianne S. Denault, Deputy Attorneys General, for 

Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

C. Delaine Renard

Deputy State Public Defender

1111 Broadway, 10th Floor

Oakland, CA 94607

(510) 267-3300

Adrianne S. Denault

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92011

(619) 645-2287