1

Filed 8/13/1 8



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S137730
v. ) ) TROY LINCOLN POWELL, ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. BA240299

- 01

________________________________ ____ )

A jury convicted defendant Troy Lincoln Powell of the first degree murder of Tammy Epperson (Pen. Code, § 187, subd. (a)) 1 and found true three special circumstance allegations : that the murder wa s committed while defendant was engaged in the commission of rape (§ 190.2, subd. (a)(17)(C)) and mayhem (§ 190.2, subd. (a)(17)(J)) , and the murder involved the infliction of torture (§ 190.2, subd. (a)(1 8 ))

. The jury also convicted defendant of forcible rape (§ 261, subd. (a)(2)), mayhem (§ 203), and torture (§ 206)

. In a separate proceeding , the jury
found that defendant was sane when he committed the crimes of which he was
convicted

.

1 All further statutory references are to the Penal Code unless otherwise indicated.2

T he original jury was unable to reach a verdict in the penalty phase , but a newly

- selected jury returned a verdict of death after a s econd penalty proceeding

. Defendant moved for a new trial and for modification of his sentence to life without the possibility of parole. The trial court denied those m otions and
sentenced d efendant to death. 2 This appeal is automatic. ( § 1239, su b d. (b). ) For the reasons that follow, we affirm the judgment.
I. F ACTS
A. Guilt Phase Evidence
1. Prosecution evidence Tammy Epperson was a recovering heroin addict who had re cently completed a 12

- step treatment program and h e ld a responsible job

. Epperson lived on her own at Ballington Plaza, an apartment complex that accepted referrals from substance abuse recovery and inmate rehabilitation programs. The property
manager t h e r e described Epperson as “ a very good tenant.

. . . [S] he took car e of
herself. She spoke well, she was very p r oud of what she was doing

. . . , and she paid rent on time. ” Her apartment was “very neat, e verything in the right places.” Defendant met Epperson in the summer of 2000, while he was residing at Weingart Center in Los Angeles, which provided short

- term housing and programs for persons recovering from substance abuse. Defendant had recently
been released from prison. Epperson had gone to Weingart Center to visit Timothy Todd, a mutual friend of d efendant and Epperson who was working
ther e

. Defendant noticed Epperson and later asked Todd to introduce him to her. Epperson was “hesitant” to meet defendant because “she didn’t wan t a

2 The court also sentenced defendant to the upper terms of eight years on the convictions for forcible rape and mayhem and to life imprisonment on the torture conviction, all to be served concurrently and stayed pursuant to section 654.3

relationship” at that time. Not long before, Epperson had broken off a romantic
relatio nship when she discovered that he r boyfriend , Ronald Sims, had lapsed
back into substance abuse. Todd persisted, however, and Epperson eventually
relented . D efend ant, Epperson, and Todd soon began spending time together , attend ing movies, eat ing out, and dri v ing together in defendant’s truck. The nature of defendant’s relationship with Epperson was the subject of conflicting testimony

. Todd, who was employed as Ep person’s assistant and
claimed to be her confidant, did not believe she and defendant were ever romantically involved

. Photographs and other evidence , however, suggest ed that Epperson and defendant eventually spen t t ime together in Todd’s absence

. Without question , d efendant became obsessed with Epperson, declaring to Todd that he loved her and saying, “I f I can’t have her, nobody will. I’ll kill her and myself.” At some point, h e became upset that she was “hanging around with other
men.” Defenda nt began to appear uninvited at Epperson’s workplace and to call her repeatedly. His behavior eventually became distressing to Epperson. In late October 2000, Todd testified, Epperson broke off relations with defendant , but he continued to call her “cons tantly” at work

. On a Sunday in early November , defendant was loitering across the street
from Epperson ’s church after services ended . S he spotted him while she was standing o utside the church, talking with Sims

. Epperson and defendant were both
Caucasian , while Sims was African

- American. As will be discussed below, the
inter

- racial character of Epperson’s relationship with Sims may have been an irritant to defendant, who was affiliated with a white supremacist gang while in prison. Epperson told Sims she had to “deal with this matter now,” referring to defendant, and crossed the street to talk to defendant. According to t he visitors’ log at Ballington Plaza , defendant and Epperson entered the building that morning4

at 10:45 a.m., and defendant left at 1:26 p.m. The afternoon security guard, however, saw defendant walk through the lobby toward the exit doors between 2:00 and 3:00 that afternoon. Because the building required all guests to be escorted, the guard, who was familiar with Epperson and defendant, stopped defendant and asked him where Epperson was. Defendant replied that she was

“ ‘in her unit resting.’ ” Later that day, defendant twice called Todd to ask him to check on Epperson , saying he had killed her , but Todd did not take defendant seriously

. The p olice did not enter Epperson’s apartment until the next day, after she failed to appear for work. Epperson ’s bo dy was lying on the floor, and he r apartment appeared to have been ransacked. Two days later, d efendant was

arr ested at a local motel . Epperson’s keys were found on a table next to the bed i n the motel room

. Conclusions about the manner of Epperson’s death wer e based largely on forensic evidence regarding the condition of her apartment and her body. Officer Ronald Raquel, a criminalist who specialized in blood spatter and sexual assault analysis, examined Epperson’s apartment on the day following the killing. Raquel said Epperson’s body was located in the center of the apartment’s living quarters,
be tween the bed and a chest of drawers. She was wearing a blouse and hooded sweatshirt on the upper portion of her body, but she was nude from the waist down, with a towel covering her lower body. Her brassiere, underneath the clothing, had been pushed up above the nipples of her breasts. The condition of
her blood

- soaked sweatshirt suggest ed that her head had been ly ing on top of it for
some time without mov ing

. A pair of jeans and women’s panties were pile d at her
feet. Blood stains and spatters were f ound throughout the living quarters and
bathroom of the apartment

.5

Using a large number of photographs, Raquel described the pattern of blood
residue in the apartment, explaining the inferences that could be drawn from the size, shape, and location of the stains and spatters . Based on his observations, Raquel inferred that the assault began in the bathroom, where Epperson’s head

was slammed against the wall at least six times as he r knees gave out, resulting in a descending pattern of s mears

. She was then carried into the living quarters and placed near the bed in the spot where her body was found. There t he attack
continued. Large p ieces of a plaster flower vase and a hard lamp, both weighing at least ten pounds prior to breaking apart, were strewn about. Portions of each had
been used to strike Epperson’s head repeatedly

. She had also been struck with a wooden footstool and, after the footstool broke apart , its individual pieces

. The cord of the lamp had been wrapped around her head. Blood stains on the jean s at her feet were consistent with a pair of bloody hands unfastening the jean s and
forc ing them down. The inner surface of her thighs contained residues consistent with “a bloody object [making] contact with the victim’s thighs a fter the . . . blue jeans were removed.” A screwdriver found under Epperson’s arm had blood on the tip and could have been used to inflict a wound below her eye. Following the assault, the assailant ransacked the apartment, going through Epperson’s closet , drawers, and other property. Paper towels thrown into the toilet had been used to clean a bloody object, possibly a pair of hands. Yulai Wang, M.D., a deputy medical examiner who performed an autopsy on Epperson, testified about the condition of her bod y. Dr. Wang concluded that Epperson died from multiple blunt force injurie s. Epperson had bruises and
abrasions on the back of her arm, hands, and her rig ht leg that Wang characterized as “defensive wounds,” presumably suffered as Epperson sought to prot ect herself. Blows to her head had caused a large laceration on her fore h ead, with an6

underlying open skull fracture, and there were multiple lacerations on her forehead, both eyes, nose, cheeks, and upper and lower lips, both inside and
outside. The wou nd to her lower lip went “through and through , ” and the open skull fracture was “deep in through the inside of her head.” She also had a seven

inch gaping skull fracture on the left side that ran from the front to the back of her
head and extensive fractures to the front and base of he r skull . H er nose and both
cheekbones were fractured , and her face had been flattened by fractures of the underlying facial bones. Thre e separate wounds had be en cut into the left side of her neck and head, three

- quarters of an inch , one and one

- half inch, and two and

one

- half inches long. A similar wound was on the right side of her neck. These
wounds had been inflicted by a sharp, irregular object, such as b roken glass, rather
than a knife. None of these cuts had severed the carotid artery, an injury that
would have been promptly fatal. Hemorrhaging in her eyes and bruises on her neck suggested strangulation. Her brain showed bruising and bleeding in sever al different places , and a n area of bleeding beneath her scalp “almost cover[ed] ” the right side of he r head. Pieces of glass of different colors were removed from her body, clothing, head, and hair. In a career involv ing over 2000 autopsies, Dr. Wang ha d seen only a “very small number” of beatings this sever e

. Epperson also suffered injuries suggestive of sexual abuse. She had bruises and abrasions in the back and both sides of her vaginal area, with hemorrhaging
under the skin. Dr. Wang concluded thes e injuries had been caused by “the blunt force penetration either by a penis with a lot of force or other kind of object of similar shape and size.” She found t he extent of trauma suffered by Epperson to this part of her body to be “very rare[]. ”
Because death causes a loss of blood pressure, Dr. Wang testified, injuries inflicted after death do not cause bruising and bleeding. Accordingly, she
concluded that the “majority” of Epperson’s injuries , perhaps as much as 957

percent , were inflicted while she was still alive , including the extensive injuries to her vaginal area, face, and neck

. The parties stipulated that DNA analysis identified defendant’s blood on Epperson’s jeans and panties, her inner thighs, and a washcloth and plastic water
bottle found i n the sink. In some of these areas, Epperson’s blood was mixed with that of defendant, and her blood was identified in samples collected around the living quarters. Defendant’s DNA was found in a vaginal swab, and his sperm
was found in and outside her v agina. The prosecution also p resent ed evidence of two prior assaults by defendant. A former girlfriend testified that , in 1992, she attempted to end their three

- year relationship

. Defendant responded that he would kill her. He grabbed her by the throat, dragged her to the ground and down the driveway, and kicked her twice in
the head and neck. As he dragged her, he told her, “You’re going to die.” Neighbors prevented any further injury, but t he woman has had lingering neck pain

. The second assault vic tim met defendant in January 1999 and had a few
dates with him. Two months after they met , she told him to stay away from her.
Soon after , d e fendant lured her to his apartment, where he blocked the door with a chair and began yelling at her. When she re sponded , he hit her in the face, knocking her to the ground, climbed on top of her, and choked her in to unconsciousness. When she recovered, defendant ordered her at knife

- point to take off her clothes, tearing at them in his impatience. Eventually, defe ndant forced her, still at knife

- point, to take him with her wh ile she pick ed up her children from day care and then to drive him home. Defendant continued harassing t he woman with telephone calls until she reported him to the police.8 2. Defense e vidence Testifying in his own defense, d efendant confirmed that he met Epperson in June 2000, while he was living at the Weingart Center and working as a tutor in its computer lab. At the time, he was being medicated with Sinequan, a sedative that helps control p aranoid feelings, as well as Depakote and Paxil. Without the medications, defendant suffered from paranoid anxiety. Through the end of July,
defendant saw Epperson while in the company of Todd, but later Todd “no longer was basically in the picture anymo re.” Epperson began to call defendant and
invite him to visit her . By mid

- August, he had a “standing invitation” to go to Epperson’s apartment. On Fridays, defendant would escort Epperson from her place of employment to the bank to deposit cash generate d at the business, and during a transit strike in September he drove her to and from work. In late September, they began having sexual relations. Around that time, defendant stopped taking his medication, believing the medications made it difficult for h im
to maintain an erection. P hotograph s of Epperson’s apartment taken by defendant displayed a variety of small gifts he had given her, and he identified a series of
fu rnishings he helped to install.
On e week before the killing , defendant said, he called Epperson to tell her he was leaving Los Angeles for a period of time because he “needed some time away.” During the conversion, he told Epperson he “expected to be put No. 1” among her male friends. When they spoke the next day, Epperson was angry
becaus e defendant had not consulted her about his decision to leave. They exchanged repeated calls that day, and Epperson eventually pleaded for defendant to return to her. He agreed that they would “call a truce and try and work this
out.” The day before the killing, t hey spent most of the day together, shopping and visiting Epperson’s son. In the even ing, they had sexual relations.9

Epperson’s church was located across the street from the Weingart Center , where defendant resided

. On the morning of the killi ng, defendant testified, he saw Epperson standing outside the church, while he was standing o utside the
Center

. As he watched, Sims approached her. She then crossed the street to where defendant was standing and asked him to walk her home. When they arrived, she asked him to come in. They later drove to a Christian book store , returned to the apartment, and had consensual sexual relations . After they
finis hed, Epperson went to the bathroom and took a telephone call. From Epperson’s side of the conversation, defendant said, he could tell she was making social plans with someone. When defendant asked her what the call concerned, she told him he did not “run her life” and refused to tell him who had called, other than it was a person from her church. An argument ensued, during which Epperson, standing in the bathroom, told him they were “done.” Defendant, feeling “crushed,” struck her. He had no memory of what happened after that, although he remembered seeing her on the floor . H e said he had “blanked out”
like this a few times before

. Defendant testified that he neither planned nor intended to kill Epperson.
The defense also presented testimony from an expert witness regarding the biological materials found on the panties lying at Epperson’s feet, suggesting they had been worn, if at all, for a short time before being removed.

3. Prosecution rebuttal e vidence Charles Vannoy , who acknowledged knowing defendant “[a] little bit, vaguely” from prison, repeatedly denied remembering the substance of an
interview he had with police following Epperson’s killing. Over defense objection, the prosecution was permitted to play a redact ed videotape of the10

interview, which occurr ed three days after the killing and prior to defendant’s

arrest. During the interview, Vannoy tol d police he first met defendant in prison in
December 1999 , and they became friends

. After their release, Vannoy saw defendant at the Weingart Center , and defendant helped him move into an apartment three days before the killing. Late in the afternoon on the day Epperson was kill ed , Vannoy told the police, defendant called him and asked to come to Vannoy’s apartment

. When
defendant arrived , h e was anxious and did not want to talk about what had happened. Instead, he made phone calls to family members and others. Very

e arly the next morning, defendant told Vannoy he had beat Epperson to death
because she had “rejec ted him” and “was seeing somebody else. ” Defendant said he had been having sexual relations regularly with Epperson for two weeks to a month prior to her killing. On the day of the killing, a man phoned Epperson shortly after she and defendant finished h aving intercourse , and s he appeared to make plans to see the man . During an ensuing argument, Epperson insisted
defendant did not “own” her and that she would see “ who I want, when I want.”
He then followed her into the bathroom , told her to sit on the toilet , and hit her
with a candle holder. As defendant was beating her, Epperson asked why he was doing it. He told her, “All I wanted you to do was to love me, you kno w , and you wouldn’t do that.” At some point during the beatin g she asked, “Are you going to kill me, Troy ? ” and he responded, “Yes, Tammy, I am. I am going to kill you.”
D efendant tol d Vannoy he cut both sides of Epperson’s neck with glass, hit her on
the head with a woode n stool and a big lamp, and drove a screwd river or ice pick
into her head, leaving a “big hole ” in her forehead. After some sleep, defendant signed over ownership of his truck to Vannoy
and then asked Vannoy to take him to Hollywood. When Vannoy dropped him11

off, d efendant said he was going “ to ha ve fun for a couple days ” and then turn
himself in. He said he first intended to steal money from Epperson’s place of employment, us ing keys he had taken from her. The prosecution also called a detective who had search ed Epperson’s apartment. The detecti ve stated that he found a broken candle holder in the
bathroom a nd a broken stool and lamp elsewhere . The officer had also seen “a hole to the middle of [Epperson’s] head” when he observed the body. The detective later went to Epperson’s place of employm ent and confirmed that the keys found in defendant’s possession at the time of his arrest fit the locks on its
doors. Finally, the detective describe d various wounds on defendant’s body at the time of his arrest, including cuts and bruising on his hands, a small cut on his forehead, and a one

- inch cut on his calf.
B. Sanity Phase Evidence Following defendant’s conviction in the guilt phase, the same ju ry heard the trial of defendant’s insanity defense.

1. Defense e vidence Kyle Boone, Ph.D., a clinical neuropsychologist, administered to defendant a series of “objective ” standardized tests designed to detect brain abnormalities.
Dr. Boo ne found defendan t’s intelligence to be at the low end of the average
range. Defendant did “well” on most of the characteristics measured , but his problem solving skills, involving reasoning and logic, were “very low, very impaired.” The tests on which defendant performe d poorly measure d the ability to think creatively to solve problems, evalu a te the consequences of behavior, and cease behavior that is not appropriate to a situation. On a test that measur ed the “ability to inhibit,” or to stop behavior that is inappropri ate or incorrect, defendant
scored in the second percentile, suggesting “that in his daily life he would have a12

great deal of difficulty stopping a behavior that was not appropriate to the situation.” Dr. Boone concluded that defendant’s poor performance on these particular tests demonstrated that the frontal lobes of his brain, which enable problem solving, emotional expression, and empathy, were “not working correctly” due to “brain damage or brain dysfunction.” The dysfunction would cause defendant to
make bad decisions and lose control of his behavior. Stressful circumstances and
alcohol would worsen this effect. According to Dr. Boone, a person who performed like defendant did on the tests “really doesn’t have t he brain equipment, the hardware, so t o spea k, to control their behavior. They simply don’t have the apparatus to make reasoned decision s abou t their behavior.”
Part of Dr. Boone’s testing involved an evaluation of defendant ’s good faith in participating in the tests, and Dr. Boone , a specialist in detecting malingering,
concluded defendant was “doing his best on the testing,” rather than faking symptoms. In addition, as she pointed out, defendant’s normal to excellent performance on many of the tests and consistently poor performance on others was inconsistent with malingering, since he would have had to know on whi ch tests to do well and poorly. Roger Bertoldi, M.D., a neurophysiologist, testified regarding the occurrence and effect of brain seizures, generically referred to as epilepsy. Some types of epilepsy, in particular temporal lobe epilepsy, can result in a loss of control, leading to acts of violence. A seizure of this type can r esult in uncontrollable rage. Defendant began suffering seizures before he was three years
old. His s eizure s continued periodically during childhood, leading Dr. Bertoldi to conclude defendant suffered from “true epilepsy,” caused by abnormal brain
activ ity. As an adult, Dr. Bertoldi testified, defendant continues to exhibit symptoms of nocturnal seizu r es. An electroencephalogram (EEG) performed on13

defendant demonstrated two abnormalities. First, the frontal portion of his brain had “too much slow acti vity,” which showed that this portion of his brain “is not functioning correctly.” To this extent , Dr. Bertoldi said, hi s findings were
consistent with those of Dr. Boone. Second, defendant’s EEG indicat ed “paroxysmal activity,” periodic spikes of activi ty that arose and receded, which is also “consistent with underlying brain dysfunction.” A computer analysis
confirmed the abnormal slow function in the front of defendant’s brain, de tected in
fewer than 1 percent of the population and suggesting defendan t suffered from epilepsy

. Defendant was prescribed Depakote to control the seizures by limiting the penetration of abnormal activity into his brain. Defendant had told Dr. Bertoldi that prior to the various violent episodes in his life, he had ceased tak ing
the drug. This coincidence, in Dr. Bertoldi’s view, connect ed the violent episodes to an underlying epileptic disorder. In Dr. Bertoldi’s experience, e pileptic patients commonly describe a sense of disassociation from their conduct at the time of a

s eizure. He explained that t he type of brain dysfunction he observed in defendant can result in “extraordinary rage like a primitive, very primitive rage.”
Saul Niedorf , M.D., is a psychiatrist who often work ed with the victims and perpetrators of domestic violence. Based on three interviews with defendant during his incarceration and Dr. Nied orf’s review of “a dozen” reports on defendant , he concluded d e fendant suffer s from a mental condition known as

“ intermi ttent explosive disorder ,” which is characterized by destructive or violent actions that occur suddenly and lack a “cutoff

. ” Dr. Niedorf based his diagnosis

on a number of factors, including (1) defendant’s history of neurological
abnormalities from an ea rly age, (2) the continued presence of slow brain waves in his recent EEG, which indicate d a “failure of development,” (3) Dr. Boone’s testing, which indicate d “the absence of a certain kind of function,” and (4) a
recent positron emission tomography ( PET ) scan showing areas of abnormally low14

activity in defendant’s brain, which suggest ed that his brain lacked the capacity to inhibit his rage once it start ed

. In addition, Dr. Niedorf observed, the harsh facts of defendant’s upbringing demonstrate d that he was “programmed for violence” by the brutal conduct of an abusive father toward his family members, conduct
that defendant internalized. Dr. Niedorf noted that d efendant also had a history of suicide attempts , beginning in childhood and continuing through his then

- current incarceration, w hich wa s consistent with his diagnosis

. Further corroborating his diagnosis was d efendant’s positive response to mood stabilizing medications, which reduce a person’s arousal level and prevent excessive agitation. Dr. Niedorf also observed that, beginning in 1993 and continuing to the time of the killing,
d efendant had been diagnosed repeatedly with a variety of mental disorders, largely depression, bipolar disorder, and schizophrenia

. In Dr. Niedorf’s view, defendant m et the legal definition of insanity at the time he committed the killing. He ne i ther knew nor understood the nature and quality of his actions at the time he was beating Epperson , existing instead in an
altered state of consciousness in which he failed to feel empathy or recognize the significance of his actions. He may have been aware, at the time, of the events occurring, but he was unable to register the emotions associated with the events
until later. Nor coul d defendant distinguish right from wrong because, at the time, the parts of his brain that initiate good behaviors and stop bad behaviors, his frontal and temporal lobes, were not function ing. Given the “practiced” nature of the behaviors, he neither voluntarily initiated them nor had the abilit y to stop them once they had begun , and h e was not conscious of his c onduct at the time it
occurred. William Vicary , M.D., a psychiatrist, first evaluated defendant in 1993 and 1994, when he was retained by the court to evaluate defendant’s mental competen ce to stand trial. In connection with the present proceedings, Dr. Vicary15

had interviewed defendant on five or six occasions, for a total of ten hours. B as ed

on that investigation, he concluded defendant suffered from a “major mental disorder,” primarily bipolar disorder. Dr. Vicary believed his conclusion was supported by defendant’s psychoactive medication schedule . He said that the medications prescribed for defendant, if given to a normal person, would place him or her in “a semi

- coma for a period o f three days.” That defendant could take the various medications at high dose s and remain alert and rational at the time of his testimony demonstrate d “that these medications are fitting in with his illnesses and helping him.” If defendant were faking hi s disorder, “he would have been under the influence and barely able to speak.” Dr. Vicary explained that b ipolar disorder is characterized by alternating periods of moody, irritable, and frenetic activity and periods of depression and inactivity, includin g attempted suicide. Depression and bipolar disorder had featured in defendant’s diagnoses since he was a teenager , and Dr. Vicary found that defendant’s conduct displayed the diagnostic behaviors for bipolar disorder. Based on defendant’s account of the Epperson killing, Dr. Vi cary believed defendant understood the nature and quality of his acts at the time. He did not believe, however, that defendant could distinguish right from wrong. One feature of bipolar disorder is “explosive outbursts,” in which the person is “not thinking, . . . just acting, and . . . there is no rationality, no restraint, there’s nothing that can stop the explosion.” Although defendant had some understanding of what he was doing, he was unable t o stop himself. In Dr. Vicary’s view, d efendant likely recognized to some degree the wrongfulness of his conduct once he had finished and regained his composure, but during the event he h ad no grasp of right and
wrong.16 2. Prosecution e vidence
David Gries emer is a clinical neurophysiologist who studies epilepsy and
EEG ’ s. Prior to his testimony, he ex amined defendant and found his functi oning
normal. According to Dr. Griesemer, d efendant had no memory of suffering seizures after childhood, and about half of persons with childhood seizures “outgrow” them. Defendant’s childhood EEG was interesting because, although the EEG was abnormal, he was not suffering symptoms, a finding “not
inconsiste nt with some of the benign epilepsies .” In reviewing defendant’s most recent EEG, Dr. Griesemer found “some subtle abnormal findings,” but “they were not epileptic findings.” In other words, although Dr. G riesemer acknowledged the slowing in defendant’s EEG, he did not believe it indicated a “tendency to have epilepsy .” Further, he did not believe it suggested “significant” frontal lobe slowing

. Kris Mohandie, Ph.D., a psychologist, interviewed defendant on three occasions, reviewed his medical and psychiatric records, and administered two

“ objective ” psychological te sts. The results of the tests, in particular, suggested to Dr. Mohandie that defendant was faking at least some of his psychiatric symptoms. On both tests, defendant claimed to have more problems than most psychiatric patients claim, suggesting his respo nses were a “fake bad response.” One test indicated probable feigning, while the other indicated feigning. Given defendant’s “tendency to exaggerate his symptoms,” Dr. Mohandie was unabl e to find reliable evidence to diagnose defendant with a major menta l disorder. When he interviewed defendant, Dr. Mohandie found no evidence of bipolar disorder, although such symptoms would have been expected despite his medication . N or did he see any indication of such symptoms on the videotape of defendant’s police
i nterview, which occurred after he had stoppe d using medication.17

Accordingly, Dr. Mohandie believed defendant was legally sane at the time of the killing. As he explained, in defendant’ s interviews with him , defendant
d isclaim ed any overt symptoms of mental illness, such as voices, delusions, or hallucinations. He had a very specific memory of all events leading up to the killing, and his behavior after the killing, which involved some cleaning up and avoiding detection, was inc onsistent with a failure to recognize his conduct was wrongful. His claim of amnesia surroundi n g the moment of the killing seemed “unlikely” to Dr. Mohandie. Instead, Dr. Mo handie believed, defendant suffered
from an antisocial personality with narcissis tic traits , which caused him to commit the “garden variety violence” of killing a woman who he believed had treated him poorly. Dr. Mohandie also rejected the diagnosis of intermittent explo sive
disorder , which h e found inconsistent with the purposeful, m otivated behavior displayed in the killing.
C. Penalty Phase Evidence
1. Prosecution case in aggravation
Because the original jury deadlocked during the initial penalty phase, this proceeding was tried to a newly

- selected jury. Given the new jury , the
p rosecution presented essentially the same evidence regarding Epperson’s killing that was presented during the guilt phase , including testimony by the same percipient witnesses about the circumstances leading to the killing, the blood spatter, autopsy, and DNA evidence, Charles Vannoy’s interview with police about defendant’s statements and conduct afterward, and the t wo prior assault
victims

. In addition, the prosecution presented two witnesses familiar with Epperson’s life prior to meeting defendant. Bett e Ruiz de Esparza i s the mo ther of Paul Grano, who was married to Epperson. She testified that Epperson’s mother,18

apparently an alcoholic, abandoned her when Epperson was a teenager. Ruiz de Esparza and her son took Epperson in, looked after her, and treated her like family. Grano, eight years older than Epperson, e ventually married her , and they had a child together

. Both Grano and Epperson struggled with drug abuse, and Epperson wa s in and out of treatment and jail for a significant period. In the year or two before her death, however, Epperson “sounded real positive, and her life was going good.” Although Epperson and Grano had separated at some earlier time, “ they were getting b ack together ” at the time of her death. During the separation, they had remained good friends , and Grano was “broken

- h earted” by
her death.
Ruth S t eward was a lay minister at Epperson’s Church, which was located on “skid row,” across the street from Weing art Center. She had kn o w n Epperson for about a year prior to her death and was proud of Epperson’s strength, positive attitude, and determination. During the year Steward knew her, Epperson was drug

- free. Steward was deeply affected by her “s enseless” d eath.

2. Defense case in mitigation Through the testimony of defendant’s mother and two sisters, the defense provided evidence of defendant’s difficult family life and history of violence

. B oth of defendant’ s parents, Joyce and Joe Powell, came from home s marked by alcohol abuse. Joyce’s parents were alcoholics, and her father sexually abused her before she was ten years old. Joe’s mother also drank heavily , and he was raised largely in a variety of foster homes. The coupl e married young. Defendant’s younger sister , Montana, characterized Joe as a “monster.” He was emotionally and physically abusive to Joyce and all four children. As Montana said, “If we went to Disneyland or something, he still would find a way to make us feel bad.” When defendant was two years old and threw an older boy19

to the ground, Joe picked defendant up and threw him into a pole. Six months later, defendant began having violent seizures. For seven years, he was given
medication to control the seizures. O ver the years, defen dant’s behavior would occasionally trigger other angry response s from Joe, one time causing neighbors to call the police. According to Joyce, s imilar incidents occurred “every time [Joe] came home and was angry.” If Joyce attempted to intervene, Joe turn ed his a nger on her. The family lived in fear of Joe

. Defendant’s older brother became so angry
with Joe that he once waited with a gun for hi m to return home, planning to kill
Joe . Only his older sister’s intervention prevented the confrontation

. Defend ant’s first suicide threat occurred when he was thirteen years old. Around this time, Joyce said, “he was never actually really happy.” His older sister recalled discovering him carrying a gun in a duffel bag, planning to harm
either himself or Joe. She talked him out of it. Defendant’s first violent outburst occurred before his eighteenth birthday when, in anger over a girlfriend, he attacked Montana with a lead pipe while she was sleeping

. Afterwards, defendant had no memory of the incident. Although Joyce attempted to get him counseling, Joe refused to pay for it. After a bout of drinking w hen defendant was 22

- years old, he became enraged when Joyce told him she had no money to give him , and he threw her across the room, breaking a
vertebrae in her back. At some point he also assaulted his older sister when she attempted to rou se him from a drunken stupor, pushing her down the stairs and ripping a mirror from her car. Both Joyce and his sister s testified that defendant would at times go into a state of vacant, uncontrolled rage. As his older sister testified, “It’s like he’s doing things but he doesn’t know he’s do ing them, but he’s doing them.”20

Joyce viewed such conduct as uncharacteristic, t estifying that defendant was a “caring and loving person” who was protective of others. They are very
close , and she does not fear him

. Defendant’s older sister also testified that she was close to him and believed he “had a big heart,” despite his anger

. In addition to testimony by defendant’s family and friends, both childhood and adult, defendant presented the testimony of the same four psychiatric experts
who testif i ed during the sanity phase. Although different in some detail s , the testimony was ma terially the same.

3. Prosecution r ebuttal c ase In rebuttal, the prosecution also presented the testimony of Drs. Griesemer and Mohandie, which was materially the same as their testimony from the sanity phase.
4. Defens e s urrebuttal In surrebuttal, the d efense presented Richard Romanoff, Ph.D., a clinical and forensic psychologist who had met with defendant for thirteen or fourteen
hours. Dr. Romanoff believed defendant suffers from a “complex set of mental disorders,” beginning with “organic impairment, ” or abnormal brain function. This was compounded by the dysfunctional family circumstances during his youth, in which his “whole world [was] organized around fear of aggression and seeing people being victims of aggression.” Dr. Romanoff agree d with the diagnosis of intermittent explosive disorder and criticized Dr. Mohandie’s contrary view as “incomplete.”21 II. D ISCUSSION
A. Guilt Phase Claims
1. The Ireland m erger doctrine does not bar defendant’s convictions for torture

- murder and mayhem

- murder The trial court instructed the jury that it could convict defendant of first degree murder either by finding that Epperson’s killing was done intentionally with premeditation and deliberation or that it occurred during the commission or attempted commissio n of , among other charged felonies, mayhem or torture. I n People v. Ireland ( 1969 ) 70 Cal.2d 522 ( Ireland ) , we held that the crime of assault with a deadly weapon c an not be used as the sole predicate crime for a second degree felony

- murder conviction beca use, when a firearm is used in a killing, such

an assault i s “an integral part of the hom i cide.” ( Id. , at p. 539.) Defendant
contends that the Ireland holding , which has come to be known as the “ ‘ merger ’ doctrine” ( id. , at p. 540), should be applied here to preclude a verdict of first degree murder in the course of the crimes of mayhem or torture because the
commission of these crimes was , in defendant ’s characteriz ation, an integral part
of hi s brutal heat of passion killing. W e find the a rgument u n persuasive

. “ ‘The felony

- murder rule makes a killing while committing certain
felonies murder without the necessity of further examining the defendant’s mental state.’ [Citation.] ‘Under the felony

- murder doctrine, when the defendant or an accomplice kills someone during the commission, or attempted commission, of an inherently dangerous felony, the defendant is liable for either first or second degree murder, depending on the felony committed. If the fel ony is listed in section 189, the murder is of the first degree; if not, the murder is of the second degree.’ ” ( People v. Bryant (2013) 56 Cal.4th 959, 965 .)
The defendant in Ireland was convicted of second degree murder after he
shot his wife in the cou rse of an argument in their home. ( I reland , supra , 7022

Cal.2d at p. 528.) The jury had been instructed that it could convict the defendant of second degree murder if the killing occurred during the commission of a felony inherently dangerous to human life , expressly including assault with a deadly weapon. ( Id ., p. 538.) In reversing, w e concluded , “[t] o allow such use of the felony

- murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homic ide has been committed as a
result of a felonious assault

— a category which includes the great majority of all
homicides. . . . We therefore hold that a second degree felony

- murder instruction may not properly be given when it is based upon a felony whi ch is an integral part of the homicide and which the evidence produced by the prosecution shows to be
an offense included in fact within the offense charged.” ( Id ., at p. 539 [ first italics added, second italics in original , footnote omitted].)
In two subsequent decisions, we extended this doctrine to preclude convictions for first degree felony murder premised on a killing during the course of a burglary when the intended felony underlying the burglary was the assault that led to the homicide. ( People v. Sears (1970) 2 Cal.3d 180, 188

- 189 ( Sears ); People v. Wilson (1969) 1 Cal.3d 431, 440 ( Wilson ) [precluding application of the felony

- murder rule when “the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integ ral part of the homicide”].) Although second degree felony murder is grounded in an interpretation of section 188, no statute specifically addresses second degree felony murder. ( People v. Chun (2009) 45 Cal.4th 1172, 1182

- 1183.) In contrast, first degre e felony murder, along with the pr edicate crimes underlying it, is expressly described in section 189. Citing this distinction in People v. Farley (2009) 46 Cal.4th 1053 ( Farley ), we reconsidered and disapproved the extension of the merger doctrine to fir st degree felony murder. As Farley reasoned, “ ‘ “ ‘ the
power to define crimes and fix penalties is vested exclusively in the legislative23

branch. ’ [Citation.] ” ’ [Citation.] The courts may not expand the Legislature’ s definition of a crime [citation] , n or may they narrow a clear and specific
definition. In the context of second degree felony murder, courts must interpret
section 188’s reference to an ‘ “ abandoned and malignant heart.” ’ [Citation.] In the context of first degree felony murder, however, there is no need for interpretation of the Legislature ’ s clear language. Thus, the differences between
the statutory bases for first and second degree felony murder support the conclusion that although this court properly may limit the breadth of second degree felony murder in a manner consistent with its in terpretation of the Legislature’ s intent, there is no room for interpretation when the Legislature has defined first degree felony murder to include any killing ‘ committed in the perpetration o f, or attempt to perpetrate,

. . . burglary. ’ ” ( Id. , at p. 1119.)
The rationale of Farley requires us to reject defendant’s argument. Although Farley was concerned with felony murder based on burglary, its rationale applies equally to all of the predicate felonies expressly listed in section
189. Even prior to Farley , we ha d never applied the merger doctrine to first degree felony murder premised on a predic a te crime other than burglary

. ( See People v. Gonzales (2011) 51 Cal.4th 894, 94 2 [ “ our preexisting jurisprudence had
limited Wilson t o cases of burglary felony murder where the defendant’s only
felonious purpose was to assault or kill the victim ” ].) W e have declined to apply Farley to cases involving convictions for first degree felony murder premised on burglary that were committed prior to the issuance of that decision in order to avoid retroactivity concerns ( People v. Covarrubias (2016) 1 Cal .5th 838, 882 ; Farley , supra , 46 Cal.4th at p. 1121 ) , but there is no risk of an ex post facto
violation in the circumstances presented here

. Because w e have never suggested that the merger doctrine applies to murders premised on torture and mayhem, preclud ing that application on the rationale of Farley does not constitute “ an24

unforeseeable judicial enlargement of a criminal statute .” ( Farley , at p. 1121; People v. Blakely (2000) 23 Cal.4th 82, 91 [“ an unforseeable judicial enlargement
of a criminal statute, applied retroactively , operates in the same manner as an ex post facto law ”].) Given the absence of any indicat ion in our prior decisions that first degree murder premised on torture or mayhem is subject to the merger doctrine, and given our fail ure to extend the doctrine , over the course of thirty years at the time of defendant’s crimes, to any first degree felony murder other than one premised on the type of burglary involve d in Sears and Wilson , our refusal to extend the doctrine to torture and mayhem is not a legal result “ ‘ that the accused could not have foreseen at the time of the alleged criminal conduct. ’ ” ( People v. Whitmer (2014) 59 Cal.4th 733, 742.) Accordingly, we hold that defendant’s argument fails because the merger doctrine is inapplicable to first degree felony murder.

2. The evidence wa s sufficient to support defendant’s conviction for t orture m urder Defendant contends there was insufficient evidence before the jury to
suppor t the torture conviction, the first degree torture

- murder conviction, and the special circumstance finding based on that theory. “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whe ther it contains substantial evidence

— that is, evidence that is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v

. Lindberg (2008) 45 Cal.4th 1, 27 ( Lin dberg ) .) In so doing, a reviewing court “presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ( People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies to the suff iciency of the evidence25

supporting special circumstance findings. ( People v. Chatman (2006) 38 Cal.4th 344, 389.) “ ‘All murder which is perpetrated by means of

. . . torture

. . . is murder of the first degree.’ (§ 189.) Murder by torture requires (1) an act or acts causing death that involve a high degree of probability of death, (2) a causal relationship between the torturous act and death, (3) a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain on a person for the pur pose of revenge, extortion, persuasion, or for any other sadistic purpose, and (4) commission of the act or acts with such intent.” ( People v. Edwards (201 3 ) 57
Cal. 4 th 658 , 715

- 716 ( Edward s ).) The elements of a torture

- murder special circumstance (§ 190.2, subd. (a)(18)) are similar but not identical. “To prove that special circumstance allegation, the prosecution had to establish that ‘defendant
intended to kill and had a torturous intent , i.e., an intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose.’ ” ( People v. Brooks (2017) 3 Cal.5th 1, 65 ( Brooks ).) In a sufficiency of the evidence challenge to a torture

- murder conv iction or special circumstance finding, the focus is generally on “defendant’s torturous intent.” ( Brooks , supra , 3 Cal.5th at p. 65.) The perpetrator must intend to

“ ‘ “cause pain and suf

fering in addition to death.” ’ ” ( Edwards , supra , 57 Cal.
4th a t p. 716.) Torturous intent “ ‘is a state of mind which, unless established by the defendant’s own statements (or by another witness’s description of a defendant’s behavior in committing the offenses), must be proved by the circumstances surrounding the c ommission of the offense [citations], which include the nature and severity of the victim’s wounds.’ ” ( People v. Smith (2015) 61 Cal.4th 18, 52.) In this regard, “evidence that the defendant intentionally inflicted nonlethal wounds on the victim may dem onstrate the requisite ‘ “sadistic intent to cause the victim to suffer pain in addition to the pain of death.” ’ ”26

( Hajek and Vo , supra , 58 Cal.4th at p. 118 8 .) Such wounds support a finding of intent because they “evidence[] deliberate and gratuitous v iolence beyond that which was necessary to kill the victim.” ( Ibid .) The focus, as noted, is on defendant’s intent to inflict pain and suffering , which is “at the heart of” tortur e murder

. ( People v. Davenport (1985) 41 Cal.3d 247, 268 ( Davenport ) .) It need not be demonstrated that that the victim was actually conscious and suffered pain at the time otherwise painful injuries we re inflicted. ( Brooks , supra , 3 Cal.5th at p. 67.) Our most recent decision addressing the evidence necessary to support a
torture

- murder conviction is Brooks , in which we affirmed both a torture

- murder conviction and special circumstance finding. The defendant in Brooks developed a jealous, possessive attitude toward the victim, with whom he was having a
romantic affair. ( Brooks , supra , 3 Cal.5th at pp. 17, 66.) He came to believ e she was having a sexual relationship with another man and began spying on her. One day after she left that man’s home, the defendant confronted her, strangled her into unconsciousness, placed he r in her car, and, aware that she was still alive, set her and the car on fire. ( Id ., at p. 66.) We concluded that “a reasonable jury could infer from evidence of defendant’s intense possessiveness and all

- consuming suspicions . . . , coupled with his do using her and her car with accelerant and lighting them on fire, that defendant intended to inflict severe pain on [the victim] for the purpose of revenge.” ( Id ., at pp. 66

- 67.) In this case, the jury could have concluded that defendant became similarly

o bsessed with Epperson , thereby satisfying the “purpose” element of torture
murder

. He told Todd that he loved her and sa id “If I can’t have her, nobody will, I’ll kill her and myself.” He was concerned that she might be seeing other men, began to a p pear uninvited at her place of work, and telephoned her persistently. By defendant’s own testimony , the immediate cause of the assault on Epperson27

was a phone call that she took from another man , whom she refused to identify, during which she made social plan s. When this caused an argument, Epperson
told defendant they were “done

. ” F eeling “crushed,” he hit her. As related earlier,
defendant told Charles Van noy that he instruc t e d Epperson to sit on the toilet and
then hit her with a candle holder. As he be gan beating her, Epperson asked why he was doing it. He told her, “All I wanted you to do was to love me, you k now, and you wouldn’t do that.” Accordingly, d efendant’s own account of the killing,
as well as the circumstances surrounding the crime , provid e substantial evidence

to su pport a finding that his purpose in assaulting her was revenge for Epperson’s romantic rejection

. The testimony and for ensic evidence further demonstrate d that defendant engaged in far more violence than that necessary to kill Epperson, some of it
unrelated to an y attempt to kill , which provid ed substantial evidence to support a finding that he intended to inflict extreme and prolonged pain

. The beating alone
was savage and beyond t hat necessary to cause death. Defendant struck Epperson repeatedly in the bathroom, carried her into the living room, and then beat her with several different objects , striking with such force that each item was broken into pieces and flattening the featu res of her face

. In addition , he used broken glass to
inscribe cuts into both sides of her neck and the left side of her face and drove a screwdriver or ice pick into her face

. Finally, defendant inflicted wounds to Epperson’s vaginal area of a severity the coroner found to be “very rare[].” While some vaginal injury might be expected from a rape, the injuries inflicted on Epperson w ere extreme, suggesting an intent to inflict suffering beyond that caused by the violation of rape

. As the coroner testifi e d, the majority of these injuries, perhaps as much as 95 percent , occurred while Epperson was still alive. In short, there was substantial evidence from which a reasonable jury could have concluded that defendant, motivated by revenge for Epperson’s rejec tion of28

him as a romantic partner, chose to inflict extreme pain and suffering on her,

caus ing the dreadful injuries from which she eventually died. 3 The same evidence supports the jury’s true finding of the s pecial circumstances allegation, which requires an intent to kill and an intent “ ‘ to cause extreme pain or suffering for the purpose of rev enge, extortion, persuasion, or another sadistic purpose.’ ” ( Brooks , supra , 3 Cal.5th at p. 65.) Defendant ’s own statements to Vannoy and the extreme nature of the beating provide adequate evidentiary support for a finding of intent to kill

. Defendant properly argues that the severity of Epperson’s wounds cannot be the sole evidence to support a finding of torturous intent. (See , e.g., People v. Gonzales (2012) 54 Cal.4th 1234, 1273 [“Horrible wounds may be as consistent with a killing in the heat of passion or an explosion of violence, as with the intent to inflict cruel suffering”].) But i t is not so much the severity of Epperson’s wounds, as their nature , tha t supports a finding of intent to inflict pain and suffering here. Defendant used three separate heavy objects to bludgeon Epperson, discarding each in turn as it broke into pieces, and presumably continued the beating long after she was rendered unconsci ous. 4 He gratuitously cut both sides of her face and drove a sharp object into it , and inflicted severe injuries to the area around her vagina . The non fatal but undoubtedly painful

3 Defendant concede s that i f the intent element of torture murder is supported by the evidence, his conviction for torture, apart from torture murder, is supported by the evidence. 4 Defendant contends there is no reason to believe these objects were used “in so skillful a manner as to deliberately impose pain and suffering

— but not death,” but there is no requirement that a defendant calculate each of his or her blows so as to cause suffering without death.29

injuries , particularly , evidenc ed an intent to inflict pain apar t from an inevitably fatal beating

. Defendant also argues the evidence was consistent with a killing due to an

“ ‘ explosion of violence ’ ” ( Davenport , supra , 41 Cal.3d at p. 268), rather than an
intent to torture . He cit es People v. Anderson (1965) 63 Cal.2d 351 ( Anderson ) , i n which the defendant killed a young girl who may have resisted an attempted
sexual assault

. The manner of the homicide

— the infliction of more than 40 knife
wounds

— was certainly consistent with an intent to inflict pain and suffering ( id

. , at p. 355), but the court found insufficient evidence to support a conviction for

torture murder. The court explained that the record lacked sufficient evidence of “the requisite intent,” but its subsequent discussion made clear that the term “intent” in that phrase refer s to purpose or motive

— that is, the infliction of pain and suffering “for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose.” ( Edwards , supra , 57 Cal.4th at pp. 715 , 723 .) Because there
was no evidence t o suggest the Anderson defendant had a proscribed purpose in inflicting the wounds, the court held, “the instant case shows only an explosion of violence.” (

Anderson , at p. 360.) A similar result was reached in People v. Mungia (2008) 44 Cal.4th 1101, in which the Attorney General “d [id] not contend that defendant was motivated by revenge, extortion, or persuasion” and sought to
demonstrate a “ ‘ “sadistic intent to cause the victim to suffer pain in addition to the pain of death” ’ ” merely on the basis of the defendant’s delivery of repeated
blows to the victim’s head. ( Id ., at p. 1136 .) In that case w e found insufficient evidence to support a torture

- murder special circumstance, concluding “[t]he killing was brutal and savage, but there is nothing in the nature of the injuries to suggest that defendant inflicted any of them in an attempt to torture [the victim] rather than to kill her.” ( Id. , at p. 1137. )30

That is simply not the case here. First, there was substantial evidence from
which the jury coul d reasonably have found that defendant was motivated by
revenge, beginning with hi s acknowledgment that he first struck Epperson because she had terminated their relationship. Second, as discussed above, defendant’s infliction of gratuitous injuries in ad dition to the fatal beating provided substantial evidence of an intent to inflict pain and suffering for their own sake. 5

3. The evidence wa s sufficient to support defendant’s conviction for

r ape
- m urder
Defendant contends there was insufficient evidence t o support the rape conviction, the rape

- murder theory of first degree felony murder, and the special
circumstance finding based on that theory.
A homicide “ committed in the perpetrati on of, or attempt to perpetrate . . . rape” is first degree murder. ( § 189; People v. Berryman (1993) 6 Cal.4th 1048, 1086.) F orcible rape is “an act of sexual intercourse accomplished

. . . [¶]

. . . [¶]

. . . against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” ( § 261, subd. (a)(2); People v. Harris (2013) 57 Cal.4th 804, 850.) A rape

- murder special

- circumstance finding requires the homicide to be committed while the defendant was engaged in the commission of, or attempted com mission of, rape. (§ 190.2, subd. (a)(17)(C); People v. Lewis (2009) 46 Cal.4th 1255, 1292 ( Lewis ).)

5 Defendant also cites People v. Leach (1985) 41 Cal.3d 92, in which we reversed a torture

- murder special

- circumstance finding because the jury was not instructed that intent to inflict pain and suffering was an element of the finding. ( Id. , at pp. 109

- 110.) We declined to affirm in spite of the error because the evidence did not demonstrate intent to inflict pain “ ‘ as a matter of law, ’ ” noting the “strong evidence of intent to kill militates to some extent against a finding of intent to inflict pain.” ( Id. , at p. 110.) Because the jury w as properly instructed here, the evidence need not demonstrate intent to inflict pain as a matter of law. Leach has no application.31

As noted above, we review the jury’s verdict for substantial evidence. ( Lindberg , supra , 45 Cal.4th at p. 27.)
There was substantial evidence of forcibl e rape here. Defendant’s DNA was found in a vaginal swab, and his sperm was found in and outside Epperson’s vagina. When he r body was discovered , Epperson was still wearing a sweatshirt, blouse, and bra on her upper body, but her lower body was nude , a p attern consistent with forced intercourse

. ( Lewis , supra , 46 Cal.4th at p. 1290.) In addition, her brassiere had been pushed above her nipples. Blood stains on her jean s, which were found lying near he r body, suggested that defendant had, with bloody fingers, unbuttoned the pants, put his hands inside the pockets, and pulled
the pants off , and the blood stains on the inner surface of Epperson’s thighs were consistent with the forcing apart of her legs

. The medical examiner found the degree of trauma to Epperson’s vaginal area “very rare[],” caused by “the blunt force penetration either by a penis with a lot of force or other kind of object of similar shape and size.” From these facts, the jury readily c ould have concluded, beyond a reasonable doubt, that Epperson had forced intercourse and that her
death occurred while defe ndant was engaged in this rape. Defendant’s argument to the contrary focuses on the fact that Epperson’s jeans were found lying on to p of her panties, the reverse of what would be expected if defendant had removed her clothing, and the testimony of a defense forensic expert who examined a liner in the panties and concluded it was likely she had not worn them. This evidence, defendant a rgues, suggests that Epperson was not wearing clothing on her lower body at the time the assault began. Defendant’s interpretation of the forensic evidence , however, fails to account for the unusual blood stains on her jeans, which suggest that they were removed after both Epperson and defendant had been bloodied. If she were not wearing jeans at the time of the assault, there would be no explanation for the blood stains in her32

pockets. It may simply be that Epperson w as wearing the jeans without
underwe ar, a circumstance that would also explain how the jeans ended up on top of the panties. Defendant’s interpretation also ignores the pattern of blood stains on her thighs and the severe trauma to her genitals. In any event, that Epperson might not have b een clothed from the waist down is not inconsistent with a forcible rape. Noting that he testified to having had voluntary intercourse with Epperson prior to the assault, defendant argues that Epperson’s vaginal trauma could have
been the result of consensual sexual intercourse between a relatively small woman and a very large man. 6 It is unlikely, however, that Epperson would willing ly have endured intercourse that caused vaginal injury as severe as that found by the
medical examiner. In any event , the totality of the evidence provides substantial evidence of rape, notwithstanding the possibility of an alternate explanation. Defendant contends these circumstances are comparable to those in People v. Craig (1957) 49 Cal.2d 313 ( Craig ), and Anderson , supra , 70 Cal.2d 15, in which the evidence was found insufficient to support first degree felony

- murder
convictions based on rape . Both cases are distinguishable. In Craig , the victim had been beaten to death. When found, her body was dressed in a slip or nightgown, covered by a raincoat. Her panties, which had been found underneath the body, were torn open. ( Id ., at p. 316.) Yet the court in Craig found
insufficient evidence to support a rape

- murder conviction because , notwithstanding the suggestive condition of the victim’s clothing, neither the defendant’s nor the victim’s clothing “bore any evidence of the sexual act ” ( i d ., at p. 318 ) , and there was no other evidence to suggest sexual intercourse had

6 At the time of the killing, defendant was between 6 feet, three inches and 6 feet, four inches tall and weighed about 280 pounds.33

occurred. ( Ibid. ) In Anderson , as noted above , the victim had been stabbed to death. Her body was nude, and the crotch had been cut from her underwear. ( Id. , at p p. 20

- 21.) Again, t he court found insufficient evidence to support a charge
under section 288 of lewd and lascivious conduct with a chil d under the age of 14
years because there was no physical evidence of sexual contact or any evidence that the defendant harbored sexual feelings toward the victim or had ever engaged in lewd conduct with her. ( Id. , at p p . 35

- 36.) In contrast with these c ases, the state of Epperson’s clothing was not the only evidence supporting the charge of rape. As discussed above, there was no question defendant had sexual intercourse with Epperson, and there was substantial forensic evidence to support the charge
tha t the intercourse had occurred by force and against her will. 7

4. The trial court’s a dmission of g ang a ffiliation e vidence during the guilt phase was harmless Defendant contends the trial court committed prejudicial error in permitting
the introduction of evidence during the guilt phase that he had been affiliated in prison with a white supremacist gang and that he had tattoos suggesting racist sympathies . He also argues that the prosecutor committed misconduct in eliciting
some of this evidence

. Epperson was Caucasian. Around the time she met defendant, Epperson
had broke n off her romantic relationship with Sims, an African

- American, but the

7 Defendant also contends his conviction for premeditated first degree murder was not supported by substantial evidence. Because we have concluded that substantial evidence supports defendant’s first degree murder conviction on the theories of t orture murder and rape murder, and because defendant has not challenged the sufficiency of the evidence supporting the theory of mayhem

murder, we need not, and do not, address the sufficiency of the evidence supporting the charge of premeditated first deg ree murder. (See Hajek and Vo , supra , 58 Cal.4th at p. 1192, fn. 20.)34

two remained friends , and defendant was aware of the ir relationship

. On the morning of the day Epperson was kille d, defendant saw her talk ing to Sims outside
her church. Although Sims and defendant had lived in the same building during two years of rehabilitation , they had never formally met or spoken. When Sims
testified that he felt “intimidated” by defendant be cause defendant was a “white supremacist, ” t he trial court struck this testimony and admonished the jury to disregard it. Timothy Todd , Epperson’s friend and assistant at her workplace,
later testified , without objection , that defendant, “on several occas ions,” said that “he would kill that nigger [Sims] if h e kept trying to see” Epperson. During the cross

- examination of defendant , h e acknowledged , without explanation, that he “had a problem” with Sims because of “what he did to” Epperson. When defendant denied being a “racist” and disliking Sims because he

was an African

- American, the prosecutor was permitted to introduce , over objection, photographs of defendant’s tattoos, two of which rea d, “White Pride” and “White Anger.” Defendant said he had got ten the tattoos “years ago” in prison. During the prosecution’s rebuttal case, the trial court permitted the introduction of gang

- related statements made by defendant’s friend, Charles Vannoy , during his police interview. The jury therefore heard Vannoy des crib e himself as a one

- time member of the Aryan Brotherhood, although he had since left the g roup

. Vannoy acknowledged having tattoos, one of which was a swastika, and said he was aware defendant did not like Sims, whom the
interviewer had referred to as Epperson’s “Black boyfriend.” In closing argument,

n either attorney mentioned the tattoos or gang evidence. We review a trial court’s decision to admit or exclude evidence “for abuse
of discretion, and [the ruling] will not be disturbed unless there is a showing that35

the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.” ( People v. Wall (2017) 3 Cal.5th 1048, 1069.) When evidence is erroneously admitted, we do not reverse a conviction unless it is

reas onably prob able that a result more favorable to the defendant would h a ve occurred absent the error. ( People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Co v arrubias (2016) 1 Cal.5th 838, 887

- 888 ( Covarrubias ) [ Watson standard applies in evaluating p rejudice from state law error in admitting evidence].) We apply a similar standard of prejudice when considering a claim of prosecutorial misconduct. (E.g., People v. Peoples (2016) 62 Cal.4th 718, 798

- 799, 804.) We need not address the propriety of the trial court’s admission of this
evidence or the prosecutor’s conduct in eliciting it during the guilt phase because any error in its admission was harmless . The evidence of defendant’s guilt was very strong. There was no question that he was the killer . T he forensic evidence powerfully revealed the manner of Epperson’s death , and the testimony, including defendant’s own testimony, provided ample evidence of the obsession that appears
to have motivated t h e crime s. At most, the evidence of defendant’s possible racist sympathies would have provided an additional reason for the intensity of his anger at the time of the killing. Defendant’s gang membership was therefore largely irrelevant to the issues before the jury in the guilt phase, and any negative reaction the jur ors might have had to the gang evidence would not have had a significant
influence on t heir evaluation of the evidence. Nor do we conclude, for similar reasons, that any misconduct by the prosecutor i n eliciting this testimony “infect[ed] the trial with such unfairness as to make the conviction a denial of due process.” ( People v. Seumanu (2015) 61 Cal.4th 1293, 1331.)36

Defendant argues admission of the evidence was “inherently prejudicial”
because it create d a risk the jury w ould improperly infer defendant has a criminal disposition and is therefore guilty of the offense charged, citing People v. Williams (1997) 16 Cal.4th 153, 193 ( Williams )

. Whether defendant had a “ criminal disposition” was rendere d moot by the strength of the evidence bearing on his guilt. Concerns about the possible “ inflammatory impact” of this type of evidence ( id

. , at p. 193) were similarly alleviated by the nature of the evidence of defendant’s guilt. 8

5. The s pecial c ircums tance f

indings of torture murder and mayhem murder a re supported by the evidence
Defendant argues that the jury’s torture

- murder and mayhem

- murder special

- circumstance findings were not supported by sufficient evidence because he had no “independent felon ious purpose” in committing the predicate crimes. ( People v. Green (1980) 27 Cal.3d 1, 61 ( Green .) According to defendant, the acts of torture and mayhem were, in effect, a means to the end of killing Epperson , rather than ends in themselves

. 9
The requirement of an independent felonious purpose applies to felony

murder special

- circumstance finding s under section 190.2, subdivision (a)(17). ( People v. Coffman and Marlow (2004) 34 Cal 4th 1, 87.) This subdivision
authorizes a special circumstance fi nding when the murder “was committed while

8 We also reject defendant’s contention that the introduction of this evidence in the guilt phase violated his right to due process , since any error in the admission of this evidence was harmless beyond a reasonable doubt

. ( Chapman v. California (1967) 386 U.S. 18, 24.) 9 Although a heading in defendant’s brief asserts that this argument is addressed to “all” of the special circumstance findings, he concedes in a footnote that the a rgument actually applies only to the torture

- murder and mayhem

- murder special

- circumstance findings.37

the defendant was engaged in . . . the commission of [or] the attempted
commission of ” various other specified felonies

. ( § 190.2, subd. (a)(17) .) Section 190.2 was enacted in response to United States Supreme Court decisions requiring that a jury’s discretion in imposing the death penalty be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” ( Gregg v. Georgia (1976) 428 U.S. 153, 189; Green , supra , 27 Cal.3d at p. 61 .) With respect to the felony

- murder special circumstance s , Green explained that the Legislature found it appropriate for the jury to consider a penalty of death when a defendant “killed in cold blood in order to advance an independent felonious

p urpose.” ( Id ., at p. 61.) The Legislature’s goal , Green concluded , would not be achieved “ when the defendant ’ s intent is not to [commit the predicate felony] but
to kill and the [predicate crime] is merely incidental to the murder

. . . because [the pred icate crime’s] sole object is to facilitate or conceal the primary crime ,” i.e., the
murder

. ( Ibid .) In the intervening years, these phrases from Green , “independent felonious purpose” and “merely incidental,” have become talismanic, but they
remain usef

ul concepts t hat give meaning to the statutory requirement that the
murder occur red “in the commission of” the predicate felony. They are not separate and independent requirements for a felony

- murder special circumstance. ( Brooks , supra , 3 Cal.5th at p. 117.) Although defendant raises this claim with respect to both the torture

- murder and mayhem

- murder special

- circumstance findings , we have never required an independent felonious purpose to support a special

- circumstance finding f or
torture murder. F rom its inception, section 190.2 has codified the special
circumstance for a murder involving torture separately from the felony

- murder special circumstance s

. (See Green , supra , 27 Cal.3d at p. 49.) At the time of defendant’s crimes, as today, t he felony

- murder special circumstances we re codified in section 190.2, subdivision (a)(17). A different subdivision defines the38

torture

- murder special circumstance, permitting the finding when “[t]he murder was intentional and involved the infliction of torture.” (§ 190.2, subd. (a)(18).) Because subdivision (a)(18) lacks the requirement that the murder be committed while the defendant was “engaged in .

. . the commission of” torture, the requirement of an independent felonious purpose, which implements this
la nguage, does not apply to a torture

- murder special circumstance . Defendant provides no reason for questioning this conclusion, which follows directly from the statutory language. H is argument therefore pr ovide s no basis for challenging the sufficiency of the evidence to support the torture

- murder special

- circumstance finding

. The jury also found true the mayhem

- murder special circumstance allegation , which is specified in Section 192, subdivision (a)(17) . Mayhem requires, in very general terms, the inten tional infliction of a maiming or disfiguring injury. (See People v. Santana (2013) 56 Cal.4th 999, 1004

- 1005; § § 190.2, subd. (a)(17)(J) , 203 .) Defendant has not challenged the sufficiency of the
evidence to support his conviction for the crime of mayhem , and we have no reason to question the jury’s conclusion that , in the course of his assault, defendant intentionally inflicted disfiguring injuries on Epperson. 10 In convicting defendant of the underlying crime of mayhem, the jury necessarily found that defendant possessed the specific intent to disfigure Epperson, which would have been independent of any intent to kill her. This independent purpose to disfigure

10 T he superfluous ragged gashes in Epperson’s neck, at a minimum, would qualify as intentional disfigurement. (See People v. Newble (1981) 120 Cal.App.3d 444, 447, 449

- 450 [infliction of three

- inch facial laceration likely to leave a permanent scar constitutes mayhem].)39

provided adequate evidentiary suppor t for the mayhem

- murder special

ci rcumstance finding. Defendant argues that he elected a particularly brutal method of murdering Epperson and his infliction of disfigurement upon her was an incidental consequence of his chosen manner of killing. Whether defendant simply used a
brutal mean s to kill Epperson, or whether his brutality was part of an independent design to commit mayhem, was a factual determination for the jury to make. As discussed above, in convicting defendant of the underlying crime of mayhem, the jury necessarily found th at defendant did possess that independent design. According to Charles Vannoy, at some point during the beating defendant
admitted to Epperson that he planned to kill her. W e have repeatedly held, however, that a defendant ’s possess ion of the intent to ki ll concurrently with the intent necessary to support a predicate felony does not n e cessarily render
commission of the predicate felony incidental to the murder. As explained in People v. Castaneda (2011) 51 Cal.4th 1292, “ ‘ a jury deciding the truth of the special circumstance allegation is not required to assign a hierarchy to the
defendant ’ s motives in order to determine which of multiple concurrent intents was “primary,” but instead the jury need only determine whether comm ission of the underlying felony was or was not merely incidental to the murder

. ’ ” ( Id., at
pp. 1326

- 1327; see also, People v. Davis (2009) 46 Cal.4th 539, 609 [“ even if a defendant harbored the intent to kill at the outset, a concurrent intent to commit an eligible felony will support the special circumstance allegation ”].) Evidence that
defendant intended to kill Epperson at the time he committed mayhem did not preclude the jury from finding true the mayhem

- murder special

- circumstance allegation

.40

B. Su fficiency of the Evidence Support ing the Jury’s Verdict at the Sanity Trial

. Defendant contends the jury’s finding that he was sane at the time of the killing must be reversed because “the evidence of insanity was of such weight and quality that a jury cou ld not reasonably reject it.” “Under California’s statutory scheme, ‘[p]ersons who are mentally incapacitated’ are deemed unable to commit a crime as a matter of law. (§ 26, par. [ 2 ] .) Mental incapacity under section 26 is determined by the M’Naghten test for legal insanity provid e d in section 25, subdivision (b). ( M’ Naghten ’ s Case (1843) 8 Eng.Rep. 718, 722; People v. Phillips (2000) 83 Cal.App.4th 170, 173; see Stats. 2007, ch. 31, § 5, pp. 138

– 139.) Under M’ Naghten , insanity is established if the defendant was unable either to understand the nature and quality of the criminal

act , or to distinguish right from wrong when the act was committed. ” 11 ( People v.
Elmore (2014) 59 Cal.4th 121, 140.) In a sanity trial, the burden is on the defendant to prove insanity by a preponderance of the evidence. ( § 25, subd. (b); People v. Hernandez (2000) 22 Cal.4th 512, 521.) A defendant “may suffer from a diagnosable mental illness without being legally ins ane under the M’ Naghten standard.” ( People v. Mills ( 2012) 55 Cal.4th 663, 672.)

11 Section 25, subdivision (b), enacted by Proposition 8 in 1982, actually states that a person can be found insane only if “he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (italics added.) In People v. Skinner (1985) 39 Cal.3d 765, we held that Proposition 8 w as intended to embody the traditional M’Naghten test, which holds that insanity is demonstrated if a defendant was unable to understand the nature and quality of the criminal act or to distinguish right from wrong when the act was committed. ( Id ., at p. 7 77.)41 1. A finding of sanity is subject to the substantial evidence standard of

r eview Before we address defendant’s sufficiency of the evidence argument on its merits, it is nece ssary to settle the standard of review. Defendant’s argument, that the jury’s sanity determination must be reversed because the expert evidence he presented “was of such weight and quality that a jury could not reasonably reject it,” is based on a misread ing of People v. Drew (1978) 22 Cal.3d 333 ( Drew ). In that case, we adopted an alternative to the M ’ Naghten sanity test, a decision that

was subsequent ly abrogat ed by the electorate with the 1982 passage of Proposition
8 , which re

- adopted the M’ Naghten test . (See People v. Skinner (1985) 39 Cal.3d 765, 768

- 769.) In changing the sanity test in Drew , we also recognized that the defendant was entitled to review of the jury’s finding that he was sane under the
M’ Naghten standard , the standard prevailing at the time

. ( Drew , at p. 349.) As we noted, “ Defendant Drew argues that even under the M ’ Naghten test the jury’s finding of sanity is not supported by substantial evidence. If Drew should prevail in this contention, he would be entitled to an order direc ting the trial court to find him insane, thus avoiding a retrial of the case” under the new ly adopted test. ( Ibid .) In undertaking a review of the jury’s finding, we confirmed, quoting People v. Wolff (1964) 61 Cal.2d 795, 804, that the applicable standa rd of review was substantial evidence. ( Drew , at p. 350.)
T he only evidence introduced at the sanity trial of Drew was the testimony
of two court

- appointed psychiatrists, both of whom opined that defendant was
insane under M’Naghten . The prosecution pres ented no evidence at all. ( Drew , supra , 22 Cal.3d at pp. 338

- 339, 350.) In arguing for reversal of the finding of sanity, the defendant relied on the unchallenged unanimity of expert opinion. We explained, however, that a finding of sanity could be uphe ld even “in the face of contrary unanimous expert opinion.” ( Id ., at p. 350.) Because the defendant has42

the burden of proof, “if neither party presents credible evidence on that issue the jury must find him sane.” ( Id. , at p. 351.) When no affirmative evidence of sanity has been presented , we held, “the question on appeal is not so much the substantiality of the evidence favoring the jury’s finding as whether the evidence contrary to that finding [i.e., the unanimous expert opinions] is of such weight a nd character that the jury could not reasonably reject it.” ( Id. , at p. 351.) For reasons the decision explained, the value of both experts’ evaluations could be questioned , permitting the jury to reasonably reject both . Accordingly , Drew affirmed the
f inding of sanity. ( Ibid. ) As the foregoing suggests, the Drew standard, focusing the substantial evidence inquiry on the “weight and character” of the expert opinion s of insanity , arose in the context of a sanity trial in which the expert evidence of insa nity was uncontested, and we have applied Drew ’s articulation of the standard only in that specific context. Most recently, in In re R.V. (2015) 61 Cal.4th 181, we were required to determine the standard of review f or a finding of competency to stand
tria l in a juvenile wardship proceeding. ( Id ., at p. 199.) We determined that the appropriate standard was “the deferential substantial evidence standard” ( id ., at p. 200), but we noted that “[t]here is . . . no single formulation of the substantial
evidence test for all its applications.” ( Ibid .) Because the only evidence bearing

on the juvenile’s competence was provided by a defense expert, we applied the
Drew standard for substantial evidence , noting it was the appropriate standard “in
a case such as thi s one, in which the evidence before the court consists of the opinion of a qualified expert . . . and the materials on which the expert relied.” ( Id. , at p. 203.) Here, the evidentiary record is considerably more complex, consisting of the testimony of se veral expert witnesses for each side. W e have been provided
with no justification for departing , in these circumstances, from the most common43

formulation of the substantial evidence test, in which the appellate court reviews the entire record in the light most favorable to the jury’s determination and affirms that determination if it is supported by evidence that is “reasonable, credible and of solid value.” ( People v. Dunkle (2005) 36 Cal.4th 861, 885 .) This is the
standard of review appl ied to a jury f inding of competency to stand trial, a n analogous inquiry in which the defendant bears the burden of proof by a preponderance of the evidence. ( Ibid

. ; People v. Marshall (1997) 15 Cal.4th 1, 31.) We therefore hold that a jury’s finding of sanity will be affirmed if it is supported by evidence that is reasonable, credible , and of solid value, from which a reasonable trier of fact could find the defendant sane by a preponderance of the
evidence.
2. The evidence was sufficient to support the jury’s finding that

defendant was not insane at the time of the killing Having determined the appropriate substantial evidence test to be applied in
these circumstances , we have no difficulty in finding substantial evidence to support the jury’s finding that defendant wa s legally sane at the time he committed the murder. Although one of the prosecution’s experts, Dr. Griesemer , found some slowing in defendant’s EEG test, he did not believe it indicated organic deficiencies and concluded defendant’s functioning wa s normal

. Dr. Mohandie , the prosecution’s other expert, believed defendant was feigning at least some of his psychiatric symptoms. He also found no evidence that defendant suffered
from bipolar disorder, as testified by the defense experts. In Dr. Mohandie’s vi ew,

some symptoms of the disorder would have been expected despite defendant’ s medication, yet, as he noted , defendant disclaimed symptoms of mental illnes s , such as voices, delusions, or hallucinations. Dr. Mohandie found the defense experts’ diagnosis of intermittent explosive disorder inconsistent with the purposeful behavior displayed in the killing. Based on his observations, Dr.44

Mohandie believed defendant was aware of the nature of his actions at the time of the killing and could distin guish right from wrong. Th e s e experts’ testimony suffices to support the jury’s finding of sanity. Further, although the testimony of defendant’s experts provided strong
evidence that defendant suffered from mental or emotional disabilities, that is not

t he same as legal insanity, and t he ir testimony was less clear in demonstrating the
elements of insanity. For example, t he defense experts were unified in suggesting
that defendant w as unable to control his conduct as a result of mental defects. Merely be cause a person finds it difficult or impossible to control his or her
behavior , however, does not necessarily mean that the person lacks the ability to understand the nature and quality of that behavior or to distinguish right from
wrong. On the latter is sues, the defense experts were less unified, and the evidence supporting their conclusions was less compelling. Defendant’s claim of insufficiency of the evidence is based on a detailed comparison of the testimony of his own experts with that of Drs. Gries emer and Mohandie, which, he contends, demonstrates that the prosecution experts failed to
account for all of the various factors that were cited by the defense experts. The
issue of legal sanity is, of course, a complex and uncertain one about which full y competent experts can reasonably disagree. While their testimony might not have
revealed that Drs. Griesemer and Mohandie took into account all of the matters raised by the defense, we are satisfied by their qualifications and the nature of
their testim ony that their opinions were of sufficient quality that the jury could rely on them in finding defendant sane. Nothing more is required to constitute
substantial evidence.45

C. Penalty Phase Issues
1. The trial court did not err in admitting evidence of d efendant’s possible g ang a

ffiliation and racist beliefs
As noted ante , part A.4, defendant argues that the trial court committed prejudicial error in admitting evidence of hi s racist tattoos and gang membership. We discuss the admission of gang

- related evidence separately for the guilt and penalty phases because they were tried to different juries and the exact nature of the evidence introduced at the two proceedings differed. The p enalty phase jury was unaware of, and therefore unaffected by, the tattoo and gang membership evidence introduced in the guilt phase. Prior to the second penalty phase trial, the defense sought to exclude evidence of defendant’s tattoos. The court acknowl edged that the contemplated
gang

- related evidence was “dangerous” and asked the prosecution to justify its
admission. The prosecutor responded that defendant had seen Sims and Epperson together on the morning of the killing and could have believed they we re getting back together. Racial animus, the prosecutor claimed, could have been “the spur, the additional spur that caused the defendant to murder her and to torture her. That’s the People’s theory.” The court agreed with the prosecutor and declined to exclude the evidence, explaining, with regard to the tattoos, “This isn’t somebody else’s opinion that he’s a racist. He puts this on himself. . . . [T]hat this white woman, the victim in the case, was interested in an African

- American man, would make a racist very angry.” Racial animus, the court believed, might explain the extreme nature of defendant’s rage, expressed in the savage beating of Epperson. As the court summarized its thinking, evidence of the tattoos “goes to the motivation and explosive nature of his conduct at the time of the crime.”46

When called to testify , Charles Vannoy , defendant’s friend, confirmed that he had both a swastika tattoo and a lightning bolt tattoo and that lightning bolts are a “sign” of the Aryan Brotherhood. Vannoy, however, denied affiliation with the Aryan Brotherhood. When the prosecutor asked, “Isn’t it true that you a nd [defendant] belong to . . . ,” she was stopped in mid

- sentence by an objection,
which was sustained. Soon after, the prosecutor noted that defendant told Vannoy that Epperson’s ex

- boyfriend was an African

- American and asked whether Vannoy saw “any sign ificance to saying that the boyfriend was black.” Defense counsel objected, and the prosecutor withdrew the question after being persuaded
that the detective interviewing Vannoy, rather than defendant , had brought up Sims’s race. No admon ishment was requ ested or given. As in the guilt phase, Timothy Todd , Epperson’s friend and assistant,
testified that defendant tol d him, “if [Sims] kept pu r suing [ Epperson ], he would kill [Sims].” An objection was sustained to the prosecutor’s follow

- up inquiry whether defendant had used a “racial epithet” when he made the threat, but not before Todd confirmed that an epithet had been used. Counsel did not request that
the answer be stricken. Todd was thereafter allowed to testify, over objection, that in the year 2000, defendant told Todd he belonged to a “white gang.” Although Todd did not recall which gang, he said, “Well, I know there’s several white gangs. There’s the LRL, Aryan Nations, gan gs like t hat.”
Sims testified that while he was together with defendant in a rehabilitation
program, Sims did not know defendant well and avoided him. Over objection, Sims was permitted to testify that he avoided defendant because defendant had

tattoos on his calves and arms, without describing the tattoos. Sims also testified that on four separate occasions defendant had engaged in intimidating conduct with him, although he described only one incident, when defendant swore at Sims as he was entering the Weingart Center

.47

When t he defense presented the testimony of an African

- American friend of defendant, whom he had met at the Weingart Center , the prosecutor asked the
witness whether she was aware of defendant’ s tattoos, without describing them.
The witn ess said she had seen the tattoos and was not bothered by them, again without any express indication of their content. Defendant’s mother , Joyce, testified that defendant’s father was a “bigot, . . . major big time,” but she said that defendant had not “p icked up on that.” Joyce confirmed that she was aware of defendant’s prison tattoos, but when the prosecutor suggested the tattoos were “associated with, for want of a better word white supremacist,” Joyce said she “di dn’t know that, no, I did not.”
In c losing argument, the prosecutor neve r raised the possibility that Epperson’s killing was related to Sims or his race. As the foregoing indicates, the evidence of defendant’s alleged gang membership admitted during the penalty phase was limited . Vannoy te stified about his tattoos and denied gang membership, but he was prevented from testifying about defendant’s gang membership. Todd testified that defendant claimed to have belonged to a white gang and had used a racial epithet in speaking
about Sims. Sim s confirmed that he felt threatened by defendant, without expressly attributing his discomfort to perceived racism. Two African

- American witnesses acknowledged an awareness of defendant’s tattoos, but neither described
them ; o nly the fact that the topic a rose during the testimony of African

- American witnesses hinted at their content. When the prosecutor eventually attempted to suggest to defendant’s mother that the tattoos related to racist symp athies, his
mother denied it. And , as noted, n one of this fe atured in the prosecutor’s closing argument. Evidence of a defendant’s racist beliefs is inadmissible in the penalty phase of a capital trial if it is not relevant to an issue in the case. ( Dawson v. Delaware48

(1992) 503 U.S. 159, 167; People v. Merriman (2014) 60 Cal.4th 1, 104 ( Merriman ).) Whe n evidence suggesting racist beliefs by a defendant is probative of an issue raised by the proceedings, however, we have affirmed its admission, notwithstanding any risk of prejudice. ( See, e .g., People v. Townsel (2016) 63 Cal.4th 25, 66

- 67 [evidence of a racial slur used in the course of making a threat
held admissible when the threat was relevant to the killing]; Merriman , at pp. 104

- 105 [evidence of defendant’s racist beliefs admissible to expl ain defendant’s past attacks and fights]; People v. Richardson (2008) 43 Cal.4th 959, 1030 [evidence of defendant’s leadership of white prison gang admissible to explain his ability to control others].) We agree with the trial court that evidence of defen dant’s tattoos and racial gang membership was relevant to explain the motivation for and s avagery of h is attack on Epperson. Wounded racial pride could have caused him not only to assault Epperson, but to do so in a manner intended to cause her both great suffering and disfigurement. Nor do we find error in the trial court’s decision not to exclude the evidence
under Evidence Code section 352 , which permits the court to exclude otherwise relevant evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice

.

“ ‘ Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable “ risk to the fairness of the proceedings or the reliability of the outcome

. ” ’ ” ( People v. Eubanks (2011) 53 Cal.4th 1 10, 144 ;

see People v. Booker (2011) 51 Cal.4th 141, 188 [ “ ‘Prejudice’ in the context of
Evidence Code section 352 is not synonymous with ‘damaging’: it refers to
evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome ” ].) Further, as we have noted in connection with the admission of crime scene photographs during the penalty phase, “ ‘t he trial court’ s49

discretion [at the pen alty phase] to exclude circumstances

- of

- the

- crime evidence as unduly prejudicial is more circumscribed than at the guilt phase. During the guilt phase, there is a legitimate conce rn that crime scene photographs .

. . can produce a visceral response that u nfairly tempts jurors to find the defendant guilty
of the charged crimes. Such concerns are greatly diminished at the penalty phase because the defendant has been found guilty of the charged crimes, and the jury ’ s discretion is focused on the circumstance s of those crimes so lely to determine the defendant’ s sentence. Indeed, the sentencer is expected to subjectively weigh the evidence, and the prosecution is entitled to place the capital
offense and the offender in a morally bad light. ’ ” ( People v. Moon (2005)
37 Cal.4th 1, 35 .) We review a trial court’s decision to admit evidence over a n Evidence Code section 352 objection for abuse of discretion. ( Eubanks , at
pp. 144

- 145.)
A crime involvin g the degree of violence demonstrated here is in some manner incomprehensible and inexplicable. In attempting to af fix the appropriate penalty, t he jury was entitled to hear evidence bearing on the factors that possibly brought on the violence , whether, in the defense’s view, de fendant’s mental instability, or otherwise. One of those possible factors was Epperson’s past intimate relationship, and her continued personal relationship, with an African

American man. Although we recognize the potential adverse consequences resulting from the introduction of evidence suggesting defendant held racist beliefs, those consequences do not constitute undue prejudice because his alleged beliefs might have contributed to the commission of the crime. In these circumstances, we find no abuse o f discretion in the trial court’s conclusion that the risk of undue prejudice was outweighed by the probative value of the evidence.50 2. Imposition of the death p enalty on a mentally i ll d efendant does not violate the Eighth Amendment
Defendant contends t hat even if he was not found to be legally insane at the time of the killing, the evidence demonstrates that he was and is mentally ill. He contends that imposition of the death penalty on a mentally ill person violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We considered the identical argument i n Hajek and Vo , supra , 58 Cal.4th 1144, concluding that neither the Eighth Amendment nor United States Supreme Court authority preclude s imposition of the death penalty on mentally ill persons. ( Id. , at p. 1251.) As we hel d , “ [m] ost significantly, the circumstance that an individual committed murder while suffering from a serious mental illness that impaired his judgment, rationality, an d impulse control does not necessarily mean he is not morally responsible for the killing. There are a number of different conditions recognized as mental illnesses, and the degree and manner of impairment in a particular individual is often the subject o f expert dispute. Thus, while it may be that mentally ill offenders who are utterly unable to control their behavior lack
the extreme culpability associated with capital punishment, there is likely little

consensus on which individuals fall within that ca tegory or precisely where the line
of impairment should be drawn. Thus, we are not prepared to say that executing a mentally ill murderer would not serve societal goals of retribution and deterrence.
We leave it to the Legislature, if it chooses, to dete rmine exactly the type and level
of mental impairment that must be shown to warrant a categorical exemption from
the death penalty.” ( Id. , at p. 1252.)
Soon after the issuance of Hajek and Vo , our decision in People v. Mendoza (2016) 62 Cal.4th 856 ( Mendoza ), re

- affirmed it s holding

. We not ed that Hajek and
Vo ’s “ broad holding applies in the present case as well

— especially considering that in this case the jury, after a separate trial involving copious testimony from mental51

hea lth experts, rejected defendant’ s claim that he was not culpable for the murders on the ground of insanity as defined by our law, and at the penalty phase rejected his argument that because of his mental illness the death penalty was not warranted. ” ( Mendoza , at p. 910.) Jus t as in Mendoza , a jury found defendant legally sane after a trial and rejected his argument in the penalty phase that, because of his mental illness, he should not be put to death

. Defendant has presented no argument that w as not considere d and rejected
in Hajek and Vo and Mendoza , and his claimed mental illness is not of a type that is materially different, for purposes of the Hajek and Vo analysis, from the impairments suffered by the defendants in those cases. We therefore decline to
ho ld that the Eighth Amendment precludes defendant’s execution by reason of
mental illness.

3. Defendant’s various c onstitutional c hallenge s to California’s imposition of the death penalty fail Defendant raises a series of challenges to California’s death penalty statute

. As he acknowledges , these arguments have been rejected by this c ourt in past
decisions. As he anticipate s , w e decline to revisit our prior holdings with respect
to these issues, which are listed below

. Given the longstanding nature of our rulings, we do not reiterate their rationale. California’s death penalty laws adequately narrow the class of murderers subject to the death penalty. ( People v. Henriquez (2017) 4 Cal.5th 1, 45 ( Henriquez ) .) In particular, the special circumstances of s ection 190.2, which render a murderer eligible for the death penalty, are not so numerous and broadly interpreted that they fail adequately to narrow the class of persons eligible for
death. ( People v. Johnson (201 6 ) 62 Cal.4th 600, 654

- 655; People v. M yles (2012) 53 Cal.4th 1181, 1224

- 1225.)52

Section 190.3, factor (a), which permits the jury to consider t he
circumstances of the capital crime in its penalty determin ation, does not license the jury to impose death in an arbitrary and capricious manner in violation of the United States Constitution. ( Henriquez , supra , at p. 45; People v. Brown (2004) 33 Cal.4th 382, 401.) The federal Constitution does not require that the j ury agree unanimously on which aggravating factors apply

. ( People v. Jackson (2016) 1 Cal.5th 269, 372 ( Jackson ); People v. Lewis (2008) 43 Cal.4th 415, 533.) Nor is the death penalty unconstitutional for failing to require proof beyond a reasonable doub t that an aggravating circumstance has been proved (other than section 190.3, factor (b) or (c) evidence), that the aggravating factors outweigh the mitigating factors, or that death is the appropriate sentence

. ( People v. Rangel ( 201 6 ) 62 Cal.4th 1 192 , 1235 .) For that reason, again other than section 190.3, factors (b) and (c), the jury need not be instructed that proof beyond a reasonable doubt is required. ( People v.
Leonard (2007) 40 Cal.4th 1370, 1429.) These conclusion s are not affected by Appren di v. New Jersey (2000) 530 U.S. 466 or Ring v. Arizona (2002) 536 U.S. 584. ( People v. Fuiava (2012) 53 Cal.4th 622, 732.) The jury need not make written findings regarding the existence of aggravating factors. ( Mendoza , supra , 62 Cal.4th at p. 916; People v. Clark (2011) 52 Cal.4th 856, 1007.)
There is no Eighth Amendment requirement that our death penalty procedures provide for intercase proportionality review. ( People v. Johnson , supra , 62 Cal.4th at p. 656; People v. Lang (1989) 49 Cal.3d 991, 1 043.) The jury ’ s reliance on unadjudicated criminal activity as a factor in aggravation under section 190.3, factor (b) , without any requirement that the jury unanimously find that the activity was proved beyond a reasonable doubt, does not deprive a defendant of a ny federal constitutional right , including the Sixth53

Amendment right to trial by jury and the Fourteenth Amendment right to due process. ( People v. Clark , supra , 52 Cal.4th at p. 1007; People v. Balderas (1985) 41 Cal.3d 144, 204

- 205. )
Nor d oes section 190.3’s use of adjectives such as “ extreme” and “substantial” in factor s (d) and (g), r espectively, act as a barrier to the jury ’ s consideration of mitigating evidence, in violation of constitutional commands. ( People v. Johnson , supra , 62 Cal .4th at p. 656; People v. Adcox (1988) 47 Cal.3d
20 7, 270.) The court was not required to instruct the jury that the statutory mitigating factors were relevant solely to mitigation, and the court’s instruction directing the jury to consider “whether or no t” certain mitigating factors were present did not invite the jury to use the absence of such factors as an aggravating circumstance, in violation of state law and the Eighth and Fourteenth Amendments. ( People v. Johnson , supra , 62 Cal.4th at p. 656; Peop le v. Coffman
and Marlow (2004) 34 Cal.4th 1, 123.) The failure to afford capital defendants at the penalty phase the same procedural safeguards afforded to noncapital defendants do es not offend equal protection principles, because the two groups are not similarly situated. ( Brooks , supra , 3 Cal.5th at p. 116; People v. Whalen (2013) 56 Cal.4th 1, 91.)
California does not regularly use the death penalty as a form of punishment,
and “its imposition does not violate international norms of decency or the Eig hth Amendment’s prohibition against cruel and unusual punishment.” ( People v. Clark , supra , 52 Cal.4th at p. 1008.) D. Alleged Cumulative Effect of Asserted Errors Defendant argues that the cumulative impact of the asserted errors at the guilt and penalty phases rendered his trial fundamentally unfair and deprived him of other constitutional rights. Because we have concluded there was no54

error related to the trial on the capital offenses or their punishment, there is nothing to cumulate a nd, in any event, we reject the claim that any asserted
cumulative effect warrants reversal.
III. D ISPOSITION The judgment is affirmed in its entirety.

CANTIL

- SAKAUYE, C. J.

WE CONCUR:
CHIN, J. CORRIGAN, J. LIU, J. CUÉLLAR, J. KRUGER, J. JOHNSON, J. *

* Associate Justice of the Court of Appeal, Second Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.See next page fo r addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Powell

__________________________________________________________________________________ Unpublished Opinion Original Appeal XXX Original Proceeding Review Granted Rehearing Granted

__________________________________________________________________________________ Opinion No. S137730 Date Filed: August 13, 2018

__________________________________________________________________________________ Court: Superior County: Los Angeles Judge: William Pounders

__________________________________________________________________________________ Counsel: R. Clayton Seaman, Jr., under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Har ris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.Counsel who argued in Supreme Court (not intended for publication with opinion):

R. Clayton Seaman, Jr. P.O. Box 12008 Prescott, AZ 86304 (928) 776

- 9168

Pamela C. Hamanaka Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 (213) 269

- 6208