1

Filed 8/13/18

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 was 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)(18)). 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

The original jury was unable to reach a verdict in the penalty phase, but a 

newly-selected jury returned a verdict of death after a second 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 motions and 

sentenced defendant to death.2 This appeal is automatic. (§ 1239, subd. (b).) For 

the reasons that follow, we affirm the judgment.

I. FACTS

A. Guilt Phase Evidence

1. Prosecution evidence

Tammy Epperson was a recovering heroin addict who had recently 

completed a 12-step treatment program and held 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 there described Epperson as “a very good tenant. . . . [S]he took care of 

herself. She spoke well, she was very proud of what she was doing . . . , and she 

paid rent on time.” Her apartment was “very neat, everything 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 defendant and Epperson who was working 

there. Defendant noticed Epperson and later asked Todd to introduce him to her. 

Epperson was “hesitant” to meet defendant because “she didn’t want 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 

relationship when she discovered that her boyfriend, Ronald Sims, had lapsed 

back into substance abuse. Todd persisted, however, and Epperson eventually 

relented. Defendant, Epperson, and Todd soon began spending time together, 

attending movies, eating out, and driving together in defendant’s truck.

The nature of defendant’s relationship with Epperson was the subject of 

conflicting testimony. Todd, who was employed as Epperson’s assistant and 

claimed to be her confidant, did not believe she and defendant were ever 

romantically involved. Photographs and other evidence, however, suggested that 

Epperson and defendant eventually spent time together in Todd’s absence. 

Without question, defendant became obsessed with Epperson, declaring to Todd 

that he loved her and saying, “If I can’t have her, nobody will. I’ll kill her and 

myself.” At some point, he became upset that she was “hanging around with other 

men.” Defendant 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 “constantly” at work.

On a Sunday in early November, defendant was loitering across the street 

from Epperson’s church after services ended. She spotted him while she was 

standing outside 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 the visitors’ 

log at Ballington Plaza, defendant and Epperson entered the building that morning
4

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 police did not enter Epperson’s apartment until the next day, after she 

failed to appear for work. Epperson’s body was lying on the floor, and her

apartment appeared to have been ransacked. Two days later, defendant was

arrested at a local motel. Epperson’s keys were found on a table next to the bed in 

the motel room.

Conclusions about the manner of Epperson’s death were 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, 

between 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 suggested that her head had been lying on top of it for 

some time without moving. A pair of jeans and women’s panties were piled at her 

feet. Blood stains and spatters were found 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 her knees gave out, resulting in 

a descending pattern of smears. She was then carried into the living quarters and 

placed near the bed in the spot where her body was found. There the attack

continued.

Large pieces of a plaster flower vase and a hard lamp, both weighing at 

least ten pounds prior to breaking apart, were strewn about. Portions of each had 

been used to strike Epperson’s head repeatedly. She had also been struck with a 

wooden 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 jeans at 

her feet were consistent with a pair of bloody hands unfastening the jeans and 

forcing them down. The inner surface of her thighs contained residues consistent 

with “a bloody object [making] contact with the victim’s thighs after 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 body. Dr. Wang concluded that 

Epperson died from multiple blunt force injuries. Epperson had bruises and 

abrasions on the back of her arm, hands, and her right leg that Wang characterized 

as “defensive wounds,” presumably suffered as Epperson sought to protect herself.

Blows to her head had caused a large laceration on her forehead, with an 
6

underlying open skull fracture, and there were multiple lacerations on her 

forehead, both eyes, nose, cheeks, and upper and lower lips, both inside and 

outside. The wound to her lower lip went “through and through,” and the open 

skull fracture was “deep in through the inside of her head.” She also had a seveninch gaping skull fracture on the left side that ran from the front to the back of her 

head and extensive fractures to the front and base of her skull. Her nose and both 

cheekbones were fractured, and her face had been flattened by fractures of the 

underlying facial bones. Three separate wounds had been cut into the left side of 

her neck and head, three-quarters of an inch, one and one-half inch, and two and 

one-half inches long. A similar wound was on the right side of her neck. These 

wounds had been inflicted by a sharp, irregular object, such as broken 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 several 

different places, and an area of bleeding beneath her scalp “almost cover[ed]” the 

right side of her head. Pieces of glass of different colors were removed from her 

body, clothing, head, and hair. In a career involving over 2000 autopsies, Dr. 

Wang had seen only a “very small number” of beatings this severe.

Epperson also suffered injuries suggestive of sexual abuse. She had bruises 

and abrasions in the back and both sides of her vaginal area, with hemorrhaging 

under the skin. Dr. Wang concluded these injuries had been caused by “the blunt 

force penetration either by a penis with a lot of force or other kind of object of 

similar shape and size.” She found the extent of trauma suffered by Epperson to

this part of her body to be “very rare[].”

Because death causes a loss of blood pressure, Dr. Wang testified, injuries 

inflicted after death do not cause bruising and bleeding. Accordingly, she 

concluded that the “majority” of Epperson’s injuries, perhaps as much as 95
7

percent, were inflicted while she was still alive, including the extensive injuries to 

her vaginal area, face, and neck.

The parties stipulated that DNA analysis identified defendant’s blood on 

Epperson’s jeans and panties, her inner thighs, and a washcloth and plastic water 

bottle found in the sink. In some of these areas, 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 vagina.

The prosecution also presented evidence of two prior assaults by defendant. 

A former girlfriend testified that, in 1992, she attempted to end their three-year 

relationship. Defendant responded that he would kill her. He grabbed her by the 

throat, dragged her to the ground and down the driveway, and kicked her twice in 

the head and neck. As he dragged her, he told her, “You’re going to die.” 

Neighbors prevented any further injury, but the woman has had lingering neck

pain. The second assault victim met defendant in January 1999 and had a few 

dates with him. Two months after they met, she told him to stay away from her. 

Soon after, defendant lured her to his apartment, where he blocked the door with a 

chair and began yelling at her. When she responded, he hit her in the face, 

knocking her to the ground, climbed on top of her, and choked her into 

unconsciousness. When she recovered, defendant ordered her at knife-point to 

take off her clothes, tearing at them in his impatience. Eventually, defendant 

forced her, still at knife-point, to take him with her while she picked up her 

children from day care and then to drive him home. Defendant continued 

harassing the woman with telephone calls until she reported him to the police.
8

2. Defense evidence

Testifying in his own defense, defendant confirmed that he met Epperson in 

June 2000, while he was living at the Weingart Center and working as a tutor in its

computer lab. At the time, he was being medicated with Sinequan, a sedative that 

helps control paranoid feelings, as well as Depakote and Paxil. Without the 

medications, defendant suffered from paranoid anxiety. Through the end of July, 

defendant saw Epperson while in the company of Todd, but later Todd “no longer 

was basically in the picture anymore.” Epperson began to call defendant and 

invite him to visit her. By mid-August, he had a “standing invitation” to go to 

Epperson’s apartment. On Fridays, defendant would escort Epperson from her 

place of employment to the bank to deposit cash generated at the business, and 

during a transit strike in September he drove her to and from work. In late 

September, they began having sexual relations. Around that time, defendant 

stopped taking his medication, believing the medications made it difficult for him

to maintain an erection. Photographs of Epperson’s apartment taken by defendant 

displayed a variety of small gifts he had given her, and he identified a series of 

furnishings he helped to install.

One 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 

because 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, they spent most of the day together, shopping 

and visiting Epperson’s son. In the evening, 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 killing, defendant testified, he 

saw Epperson standing outside the church, while he was standing outside 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 

finished, 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. He 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 evidence

Charles Vannoy, who acknowledged knowing defendant “[a] little bit, 

vaguely” from prison, repeatedly denied remembering the substance of an 

interview he had with police following Epperson’s killing. Over defense

objection, the prosecution was permitted to play a redacted videotape of the
10

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

arrest.

During the interview, Vannoy told police he first met defendant in prison in 

December 1999, and they became friends. After their release, Vannoy saw 

defendant at the Weingart Center, and defendant helped him move into an 

apartment three days before the killing.

Late in the afternoon on the day Epperson was killed, Vannoy told the 

police, defendant called him and asked to come to Vannoy’s apartment. When 

defendant arrived, he was anxious and did not want to talk about what had 

happened. Instead, he made phone calls to family members and others. Very 

early the next morning, defendant told Vannoy he had beat Epperson to death 

because she had “rejected him” and “was seeing somebody else.” Defendant said 

he had been having sexual relations regularly with Epperson for two weeks to a 

month prior to her killing. On the day of the killing, a man phoned Epperson 

shortly after she and defendant finished having intercourse, and she appeared to 

make plans to see the man. During an ensuing argument, Epperson insisted

defendant did not “own” her and that she would see “who I want, when I want.” 

He then followed her into the bathroom, told her to sit on the toilet, and hit her 

with a candle holder. As defendant was beating her, Epperson asked why he was 

doing it. He told her, “All I wanted you to do was to love me, you know, and you 

wouldn’t do that.” At some point during the beating she asked, “Are you going to 

kill me, Troy?” and he responded, “Yes, Tammy, I am. I am going to kill you.” 

Defendant told Vannoy he cut both sides of Epperson’s neck with glass, hit her on 

the head with a wooden stool and a big lamp, and drove a screwdriver 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 him 
11

off, defendant said he was going “to have fun for a couple days” and then turn 

himself in. He said he first intended to steal money from Epperson’s place of 

employment, using keys he had taken from her.

The prosecution also called a detective who had searched Epperson’s 

apartment. The detective stated that he found a broken candle holder in the 

bathroom and a broken stool and lamp elsewhere. The officer had also seen “a 

hole to the middle of [Epperson’s] head” when he observed the body. The 

detective later went to Epperson’s place of employment and confirmed that the 

keys found in defendant’s possession at the time of his arrest fit the locks on its 

doors. Finally, the detective described various wounds on defendant’s body at the 

time of his arrest, including cuts and bruising on his hands, a small cut on his 

forehead, and a one-inch cut on his calf.

B. Sanity Phase Evidence

Following defendant’s conviction in the guilt phase, the same jury heard the 

trial of defendant’s insanity defense.

1. Defense evidence

Kyle Boone, Ph.D., a clinical neuropsychologist, administered to defendant

a series of “objective” standardized tests designed to detect brain abnormalities. 

Dr. Boone found defendant’s intelligence to be at the low end of the average 

range. Defendant did “well” on most of the characteristics measured, but his 

problem solving skills, involving reasoning and logic, were “very low, very 

impaired.” The tests on which defendant performed poorly measured the ability to 

think creatively to solve problems, evaluate the consequences of behavior, and 

cease behavior that is not appropriate to a situation. On a test that measured the 

“ability to inhibit,” or to stop behavior that is inappropriate or incorrect, defendant 

scored in the second percentile, suggesting “that in his daily life he would have a 
12

great deal of difficulty stopping a behavior that was not appropriate to the 

situation.” 

Dr. Boone concluded that defendant’s poor performance on these particular 

tests demonstrated that the frontal lobes of his brain, which enable problem 

solving, emotional expression, and empathy, were “not working correctly” due to 

“brain damage or brain dysfunction.” The dysfunction would cause defendant to 

make bad decisions and lose control of his behavior. Stressful circumstances and 

alcohol would worsen this effect. According to Dr. Boone, a person who 

performed like defendant did on the tests “really doesn’t have the brain equipment, 

the hardware, so to speak, to control their behavior. They simply don’t have the 

apparatus to make reasoned decisions about their behavior.”

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 which 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 result in 

uncontrollable rage. Defendant began suffering seizures before he was three years 

old. His seizures continued periodically during childhood, leading Dr. Bertoldi to 

conclude defendant suffered from “true epilepsy,” caused by abnormal brain 

activity. As an adult, Dr. Bertoldi testified, defendant continues to exhibit 

symptoms of nocturnal seizures. An electroencephalogram (EEG) performed on 
13

defendant demonstrated two abnormalities. First, the frontal portion of his brain 

had “too much slow activity,” which showed that this portion of his brain “is not 

functioning correctly.” To this extent, Dr. Bertoldi said, his findings were 

consistent with those of Dr. Boone. Second, defendant’s EEG indicated 

“paroxysmal activity,” periodic spikes of activity 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, detected in 

fewer than 1 percent of the population and suggesting defendant 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 taking 

the drug. This coincidence, in Dr. Bertoldi’s view, connected the violent episodes 

to an underlying epileptic disorder. In Dr. Bertoldi’s experience, epileptic patients 

commonly describe a sense of disassociation from their conduct at the time of a 

seizure. He explained that the 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 worked with the victims and 

perpetrators of domestic violence. Based on three interviews with defendant 

during his incarceration and Dr. Niedorf’s review of “a dozen” reports on 

defendant, he concluded defendant suffers from a mental condition known as

“intermittent explosive disorder,” which is characterized by destructive or violent 

actions that occur suddenly and lack a “cutoff.” Dr. Niedorf based his diagnosis 

on a number of factors, including (1) defendant’s history of neurological 

abnormalities from an early age, (2) the continued presence of slow brain waves in 

his recent EEG, which indicated a “failure of development,” (3) Dr. Boone’s 

testing, which indicated “the absence of a certain kind of function,” and (4) a 

recent positron emission tomography (PET) scan showing areas of abnormally low 
14

activity in defendant’s brain, which suggested that his brain lacked the capacity to 

inhibit his rage once it started. In addition, Dr. Niedorf observed, the harsh facts 

of defendant’s upbringing demonstrated 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 defendant also had a history of 

suicide attempts, beginning in childhood and continuing through his then-current 

incarceration, which was consistent with his diagnosis. Further corroborating his 

diagnosis was defendant’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, 

defendant had been diagnosed repeatedly with a variety of mental disorders, 

largely depression, bipolar disorder, and schizophrenia.

In Dr. Niedorf’s view, defendant met the legal definition of insanity at the 

time he committed the killing. He neither knew nor understood the nature and 

quality of his actions at the time he was beating Epperson, existing instead in an 

altered state of consciousness in which he failed to feel empathy or recognize the 

significance of his actions. He may have been aware, at the time, of the events 

occurring, but he was unable to register the emotions associated with the events 

until later. Nor could defendant distinguish right from wrong because, at the time, 

the parts of his brain that initiate good behaviors and stop bad behaviors, his 

frontal and temporal lobes, were not functioning. Given the “practiced” nature of 

the behaviors, he neither voluntarily initiated them nor had the ability to stop them

once they had begun, and he was not conscious of his conduct 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 

competence to stand trial. In connection with the present proceedings, Dr. Vicary 
15

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

on that investigation, he concluded defendant suffered from a “major mental 

disorder,” primarily bipolar disorder. Dr. Vicary believed his conclusion was 

supported by defendant’s psychoactive medication schedule. He said that the 

medications prescribed for defendant, if given to a normal person, would place 

him or her in “a semi-coma for a period of three days.” That defendant could take 

the various medications at high doses and remain alert and rational at the time of 

his testimony demonstrated “that these medications are fitting in with his illnesses 

and helping him.” If defendant were faking his disorder, “he would have been 

under the influence and barely able to speak.” Dr. Vicary explained that bipolar 

disorder is characterized by alternating periods of moody, irritable, and frenetic 

activity and periods of depression and inactivity, including 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. Vicary believed 

defendant understood the nature and quality of his acts at the time. He did not 

believe, however, that defendant could distinguish right from wrong. One feature 

of bipolar disorder is “explosive outbursts,” in which the person is “not thinking, . 

. . just acting, and . . . there is no rationality, no restraint, there’s nothing that can 

stop the explosion.” Although defendant had some understanding of what he was 

doing, he was unable to stop himself. In Dr. Vicary’s view, defendant likely 

recognized to some degree the wrongfulness of his conduct once he had finished 

and regained his composure, but during the event he had no grasp of right and 

wrong.
16

2. Prosecution evidence

David Griesemer is a clinical neurophysiologist who studies epilepsy and 

EEG’s. Prior to his testimony, he examined defendant and found his functioning

normal. According to Dr. Griesemer, defendant had no memory of suffering 

seizures after childhood, and about half of persons with childhood seizures 

“outgrow” them. Defendant’s childhood EEG was interesting because, although 

the EEG was abnormal, he was not suffering symptoms, a finding “not 

inconsistent with some of the benign epilepsies.” In reviewing defendant’s most 

recent EEG, Dr. Griesemer found “some subtle abnormal findings,” but “they 

were not epileptic findings.” In other words, although Dr. Griesemer 

acknowledged the slowing in defendant’s EEG, he did not believe it indicated a 

“tendency to have epilepsy.” Further, he did not believe it suggested “significant” 

frontal lobe slowing.

Kris Mohandie, Ph.D., a psychologist, interviewed defendant on three 

occasions, reviewed his medical and psychiatric records, and administered two 

“objective” psychological tests. The results of the tests, in particular, suggested to 

Dr. Mohandie that defendant was faking at least some of his psychiatric 

symptoms. On both tests, defendant claimed to have more problems than most 

psychiatric patients claim, suggesting his responses 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 unable to 

find reliable evidence to diagnose defendant with a major mental disorder. When 

he interviewed defendant, Dr. Mohandie found no evidence of bipolar disorder, 

although such symptoms would have been expected despite his medication. Nor 

did he see any indication of such symptoms on the videotape of defendant’s police 

interview, which occurred after he had stopped 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

disclaimed 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 inconsistent with a failure to recognize his conduct was 

wrongful. His claim of amnesia surrounding the moment of the killing seemed 

“unlikely” to Dr. Mohandie. Instead, Dr. Mohandie believed, defendant suffered 

from an antisocial personality with narcissistic 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 explosive 

disorder, which he found inconsistent with the purposeful, motivated 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 

prosecution presented essentially the same evidence regarding Epperson’s killing

that was presented during the guilt phase, including testimony by the same

percipient witnesses about the circumstances leading to the killing, the blood 

spatter, autopsy, and DNA evidence, Charles Vannoy’s interview with police 

about defendant’s statements and conduct afterward, and the two prior assault 

victims.

In addition, the prosecution presented two witnesses familiar with 

Epperson’s life prior to meeting defendant. Bette Ruiz de Esparza is the mother of 

Paul Grano, who was married to Epperson. She testified that Epperson’s mother, 
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, eventually married her, and they 

had a child together. Both Grano and Epperson struggled with drug abuse, and 

Epperson was in and out of treatment and jail for a significant period. In the year 

or two before her death, however, Epperson “sounded real positive, and her life 

was going good.” Although Epperson and Grano had separated at some earlier 

time, “they were getting back together” at the time of her death. During the 

separation, they had remained good friends, and Grano was “broken-hearted” by 

her death.

Ruth Steward was a lay minister at Epperson’s Church, which was located 

on “skid row,” across the street from Weingart Center. She had known Epperson 

for about a year prior to her death and was proud of Epperson’s strength, positive 

attitude, and determination. During the year Steward knew her, Epperson was

drug-free. Steward was deeply affected by her “senseless” death.

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. 

Both of defendant’s parents, Joyce and Joe Powell, came from homes marked by 

alcohol abuse. Joyce’s parents were alcoholics, and her father sexually abused her 

before she was ten years old. Joe’s mother also drank heavily, and he was raised 

largely in a variety of foster homes. The couple married young.

Defendant’s younger sister, Montana, characterized Joe as a “monster.” He 

was emotionally and physically abusive to Joyce and all four children. As 

Montana said, “If we went to Disneyland or something, he still would find a way 

to make us feel bad.” When defendant was two years old and threw an older boy 
19

to the ground, Joe picked defendant up and threw him into a pole. Six months 

later, defendant began having violent seizures. For seven years, he was given 

medication to control the seizures. Over the years, defendant’s behavior would 

occasionally trigger other angry responses from Joe, one time causing neighbors to 

call the police. According to Joyce, similar incidents occurred “every time [Joe] 

came home and was angry.” If Joyce attempted to intervene, Joe turned his anger

on her.

The family lived in fear of Joe. Defendant’s older brother became so angry

with Joe that he once waited with a gun for him to return home, planning to kill 

Joe. Only his older sister’s intervention prevented the confrontation.

Defendant’s first suicide threat occurred when he was thirteen years old. 

Around this time, Joyce said, “he was never actually really happy.” His older 

sister recalled discovering him carrying a gun in a duffel bag, planning to harm 

either himself or Joe. She talked him out of it.

Defendant’s first violent outburst occurred before his eighteenth birthday

when, in anger over a girlfriend, he attacked Montana with a lead pipe while she 

was sleeping. Afterwards, defendant had no memory of the incident. Although

Joyce attempted to get him counseling, Joe refused to pay for it. After a bout of 

drinking when defendant was 22-years old, he became enraged when Joyce told 

him she had no money to give him, and he threw her across the room, breaking a 

vertebrae in her back. At some point he also assaulted his older sister when she 

attempted to rouse him from a drunken stupor, pushing her down the stairs and 

ripping a mirror from her car. Both Joyce and his sisters 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 doing them, but he’s 

doing them.”
20

Joyce viewed such conduct as uncharacteristic, testifying that defendant 

was a “caring and loving person” who was protective of others. They are very 

close, and she does not fear him. Defendant’s older sister also testified that she 

was close to him and believed he “had a big heart,” despite his anger. 

In addition to testimony by defendant’s family and friends, both childhood 

and adult, defendant presented the testimony of the same four psychiatric experts 

who testified during the sanity phase. Although different in some details, the 

testimony was materially the same.

3. Prosecution rebuttal case

In rebuttal, the prosecution also presented the testimony of Drs. Griesemer 

and Mohandie, which was materially the same as their testimony from the sanity 

phase.

4. Defense surrebuttal

In surrebuttal, the defense presented Richard Romanoff, Ph.D., a clinical 

and forensic psychologist who had met with defendant for thirteen or fourteen 

hours. Dr. Romanoff believed defendant suffers from a “complex set of mental 

disorders,” beginning with “organic impairment,” or abnormal brain function. 

This was compounded by the dysfunctional family circumstances during his 

youth, in which his “whole world [was] organized around fear of aggression and 

seeing people being victims of aggression.” Dr. Romanoff agreed with the

diagnosis of intermittent explosive disorder and criticized Dr. Mohandie’s contrary 

view as “incomplete.”
21

II. DISCUSSION

A. Guilt Phase Claims

1. The Ireland merger doctrine does not bar defendant’s convictions 

for torture-murder and mayhem-murder

The trial court instructed the jury that it could convict defendant of first 

degree murder either by finding that Epperson’s killing was done intentionally 

with premeditation and deliberation or that it occurred during the commission or 

attempted commission of, among other charged felonies, mayhem or torture. In 

People v. Ireland (1969) 70 Cal.2d 522 (Ireland), we held that the crime of assault 

with a deadly weapon cannot be used as the sole predicate crime for a second 

degree felony-murder conviction because, when a firearm is used in a killing, such 

an assault is “an integral part of the homicide.” (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 characterization, an integral part 

of his brutal heat of passion killing. We find the argument unpersuasive.

“ ‘The felony-murder rule makes a killing while committing certain 

felonies murder without the necessity of further examining the defendant’s mental 

state.’ [Citation.] ‘Under the felony-murder doctrine, when the defendant or an 

accomplice kills someone during the commission, or attempted commission, of an 

inherently dangerous felony, the defendant is liable for either first or second 

degree murder, depending on the felony committed. If the felony is listed in 

section 189, the murder is of the first degree; if not, the murder is of the second 

degree.’ ” (People v. Bryant (2013) 56 Cal.4th 959, 965.)

The defendant in Ireland was convicted of second degree murder after he 

shot his wife in the course of an argument in their home. (Ireland, supra, 70 
22

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, we 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 homicide 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 which 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 integral 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 degree 

felony murder, along with the predicate 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 first degree felony murder. As Farley reasoned, “ ‘ “ ‘the

power to define crimes and fix penalties is vested exclusively in the legislative
23

branch.’ [Citation.]” ’ [Citation.] The courts may not expand the Legislature’s

definition of a crime [citation], nor 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 interpretation 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 of, 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 had never applied the merger doctrine to first 

degree felony murder premised on a predicate crime other than burglary. (See 

People v. Gonzales (2011) 51 Cal.4th 894, 942 [“our preexisting jurisprudence had

limited Wilson to cases of burglary felony murder where the defendant’s only

felonious purpose was to assault or kill the victim”].) We have declined to apply

Farley to cases involving convictions for first degree felony murder premised on 

burglary that were committed prior to the issuance of that decision in order to 

avoid retroactivity concerns (People v. Covarrubias (2016) 1 Cal.5th 838, 882; 

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 we have never suggested 

that the merger doctrine applies to murders premised on torture and mayhem, 

precluding that application on the rationale of Farley does not constitute “an 
24

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 indication in our prior decisions that 

first degree murder premised on torture or mayhem is subject to the merger 

doctrine, and given our failure 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 involved 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 was sufficient to support defendant’s conviction for 

torture murder

Defendant contends there was insufficient evidence before the jury to 

support the torture conviction, the first degree torture-murder conviction, and the 

special circumstance finding based on that theory.

“When considering a challenge to the sufficiency of the evidence to support 

a conviction, we review the entire record in the light most favorable to the 

judgment to determine whether it contains substantial evidence — that is, evidence 

that is reasonable, credible, and of solid value — from which a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt.” (People v.

Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).) In so doing, a reviewing court 

“presumes in support of the judgment the existence of every fact the trier could 

reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 

1053.) The same standard of review applies to the sufficiency of the evidence 
25

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 purpose of 

revenge, extortion, persuasion, or for any other sadistic purpose, and (4) 

commission of the act or acts with such intent.” (People v. Edwards (2013) 57

Cal.4th 658, 715-716 (Edwards).) The elements of a torture-murder special 

circumstance (§ 190.2, subd. (a)(18)) are similar but not identical. “To prove that 

special circumstance allegation, the prosecution had to establish that ‘defendant 

intended to kill and had a torturous intent, i.e., an intent to cause extreme 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 conviction 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 suffering in addition to death.” ’ ” (Edwards, supra, 57 Cal. 

4th at 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 commission 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 demonstrate 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. 1188.) Such wounds support a finding of 

intent because they “evidence[] deliberate and gratuitous violence 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” torture 

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 were 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 believe she 

was having a sexual relationship with another man and began spying on her. One 

day after she left that man’s home, the defendant confronted her, strangled her into 

unconsciousness, placed her in her car, and, aware that she was still alive, set her 

and the car on fire. (Id., at p. 66.) We concluded that “a reasonable jury could 

infer from evidence of defendant’s intense possessiveness and all-consuming 

suspicions . . . , coupled with his dousing her and her car with accelerant and 

lighting them on fire, that defendant intended to inflict severe pain on [the victim]

for the purpose of revenge.” (Id., at pp. 66-67.)

In this case, the jury could have concluded that defendant became similarly 

obsessed with Epperson, thereby satisfying the “purpose” element of torture

murder. He told Todd that he loved her and said “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 appear uninvited at her place of work, and telephoned her persistently. 

By defendant’s own testimony, the immediate cause of the assault on Epperson 
27

was a phone call that she took from another man, whom she refused to identify, 

during which she made social plans. When this caused an argument, Epperson 

told defendant they were “done.” Feeling “crushed,” he hit her. As related earlier, 

defendant told Charles Vannoy that he instructed Epperson to sit on the toilet and

then hit her with a candle holder. As he began beating her, Epperson asked why 

he was doing it. He told her, “All I wanted you to do was to love me, you know, 

and you wouldn’t do that.” Accordingly, defendant’s own account of the killing, 

as well as the circumstances surrounding the crime, provide substantial evidence 

to support a finding that his purpose in assaulting her was revenge for Epperson’s

romantic rejection.

The testimony and forensic evidence further demonstrated that defendant

engaged in far more violence than that necessary to kill Epperson, some of it 

unrelated to any attempt to kill, which provided substantial evidence to support a 

finding that he intended to inflict extreme and prolonged pain. The beating alone 

was savage and beyond that 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 features 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 were extreme, suggesting an intent to inflict suffering beyond that 

caused by the violation of rape. As the coroner testified, 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 rejection of 
28

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

causing the dreadful injuries from which she eventually died.3

The same evidence supports the jury’s true finding of the special 

circumstances allegation, which requires an intent to kill and an intent “ ‘to cause 

extreme pain or suffering for the purpose of revenge, 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 it is not so much the severity of Epperson’s 

wounds, as their nature, that 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 unconscious.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 nonfatal but undoubtedly painful 

 

3 Defendant concedes that if 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, evidenced an intent to inflict pain apart 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 cites People v. Anderson (1965) 63 Cal.2d 351 (Anderson), in 

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 refers 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 to 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 we 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 could reasonably have found that defendant was motivated by 

revenge, beginning with his acknowledgment that he first struck Epperson because 

she had terminated their relationship. Second, as discussed above, defendant’s 

infliction of gratuitous injuries in addition to the fatal beating provided substantial 

evidence of an intent to inflict pain and suffering for their own sake.5

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

rape-murder

Defendant contends there was insufficient evidence to 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 perpetration of, or attempt to perpetrate . . . 

rape” is first degree murder. (§ 189; People v. Berryman (1993) 6 Cal.4th 1048, 

1086.) Forcible 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 commission 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 was 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 forcible rape here. Defendant’s DNA 

was found in a vaginal swab, and his sperm was found in and outside Epperson’s

vagina. When her body was discovered, Epperson was still wearing a sweatshirt, 

blouse, and bra on her upper body, but her lower body was nude, a pattern 

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 

jeans, which were found lying near her 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 could have concluded, 

beyond a reasonable doubt, that Epperson had forced intercourse and that her 

death occurred while defendant was engaged in this rape.

Defendant’s argument to the contrary focuses on the fact that Epperson’s 

jeans were found lying on top of her panties, the reverse of what would be 

expected if defendant had removed her clothing, and the testimony of a defense 

forensic expert who examined a liner in the panties and concluded it was likely she 

had not worn them. This evidence, defendant argues, suggests that Epperson was 

not wearing clothing on her lower body at the time the assault began. Defendant’s

interpretation of the forensic evidence, however, fails to account for the unusual 

blood stains on her jeans, which suggest that they were removed after both 

Epperson and defendant had been bloodied. If she were not wearing jeans at the 

time of the assault, there would be no explanation for the blood stains in her 
32

pockets. It may simply be that Epperson was wearing the jeans without 

underwear, a circumstance that would also explain how the jeans ended up on top 

of the panties. Defendant’s interpretation also ignores the pattern of blood stains 

on her thighs and the severe trauma to her genitals. In any event, that Epperson 

might not have been clothed from the waist down is not inconsistent with a 

forcible rape.

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 willingly

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” (id., 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 pp. 20-21.) Again, the court found insufficient evidence to support a charge 

under section 288 of lewd and lascivious conduct with a child 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 pp. 35-36.) In contrast with these cases, 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 

that the intercourse had occurred by force and against her will.7

4. The trial court’s admission of gang affiliation evidence 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 broken 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 torture murder and rape murder, and because defendant has not 

challenged the sufficiency of the evidence supporting the theory of mayhemmurder, we need not, and do not, address the sufficiency of the evidence 

supporting the charge of premeditated first degree murder. (See Hajek and Vo, 

supra, 58 Cal.4th at p. 1192, fn. 20.) 
34

two remained friends, and defendant was aware of their relationship. On the 

morning of the day Epperson was killed, defendant saw her talking 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 because defendant was a “white 

supremacist,” the trial court struck this testimony and admonished the jury to 

disregard it. Timothy Todd, Epperson’s friend and assistant at her workplace,

later testified, without objection, that defendant, “on several occasions,” said that

“he would kill that nigger [Sims] if he kept trying to see” Epperson.

During the cross-examination of defendant, he acknowledged, without 

explanation, that he “had a problem” with Sims because of “what he did to” 

Epperson. When defendant denied being a “racist” and disliking Sims because he 

was an African-American, the prosecutor was permitted to introduce, over 

objection, photographs of defendant’s tattoos, two of which read, “White Pride” 

and “White Anger.” Defendant said he had gotten the tattoos “years ago” in 

prison.

During the prosecution’s rebuttal case, the trial court permitted the 

introduction of gang-related statements made by defendant’s friend, Charles 

Vannoy, during his police interview. The jury therefore heard Vannoy describe

himself as a one-time member of the Aryan Brotherhood, although he had since 

left the group. Vannoy acknowledged having tattoos, one of which was a 

swastika, and said he was aware defendant did not like Sims, whom the 

interviewer had referred to as Epperson’s “Black boyfriend.” In closing argument, 

neither attorney mentioned the tattoos or gang evidence.

We review a trial court’s decision to admit or exclude evidence “for abuse

of discretion, and [the ruling] will not be disturbed unless there is a showing that 
35

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 

reasonably probable that a result more favorable to the defendant would have 

occurred absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836; see 

People v. Covarrubias (2016) 1 Cal.5th 838, 887-888 (Covarrubias) [Watson 

standard applies in evaluating prejudice from state law error in admitting 

evidence].) We apply a similar standard of prejudice when considering a claim of 

prosecutorial misconduct. (E.g., People v. Peoples (2016) 62 Cal.4th 718, 798-

799, 804.)

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. The 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 the crimes. 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 jurors might have had to the gang evidence would not have had a significant 

influence on their evaluation of the evidence. 

Nor do we conclude, for similar reasons, that any misconduct by the 

prosecutor in eliciting this testimony “infect[ed] the trial with such unfairness as to 

make the conviction a denial of due process.” (People v. Seumanu (2015) 61 

Cal.4th 1293, 1331.)
36

Defendant argues admission of the evidence was “inherently prejudicial” 

because it created a risk the jury would 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 rendered 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 special circumstance findings of torture murder and mayhem

murder are 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 felonious 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 felonymurder special-circumstance findings under section 190.2, subdivision (a)(17). 

(People v. Coffman and Marlow (2004) 34 Cal 4th 1, 87.) This subdivision 

authorizes a special circumstance finding 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 argument 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 circumstances, 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 

purpose.” (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 

predicate 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 useful concepts that give meaning to the statutory requirement that the 

murder occurred “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 for 

torture murder. From its inception, section 190.2 has codified the special 

circumstance for a murder involving torture separately from the felony-murder 

special circumstances. (See Green, supra, 27 Cal.3d at p. 49.) At the time of 

defendant’s crimes, as today, the felony-murder special circumstances were 

codified in section 190.2, subdivision (a)(17). A different subdivision defines the 
38

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 

language, does not apply to a torture-murder special circumstance. Defendant 

provides no reason for questioning this conclusion, which follows directly from 

the statutory language. His argument therefore provides 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 intentional 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 The 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 support for the mayhem-murder specialcircumstance 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 means 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 that 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. We have repeatedly held, 

however, that a defendant’s possession of the intent to kill concurrently with the 

intent necessary to support a predicate felony does not necessarily 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 commission 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. Sufficiency of the Evidence Supporting 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 could 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 provided 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 insane 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 was 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. 777.)
41

1. A finding of sanity is subject to the substantial evidence standard of 

review

Before we address defendant’s sufficiency of the evidence argument on its 

merits, it is necessary to settle the standard of review. Defendant’s argument, that 

the jury’s sanity determination must be reversed because the expert evidence he 

presented “was of such weight and quality that a jury could not reasonably reject 

it,” is based on a misreading of People v. Drew (1978) 22 Cal.3d 333 (Drew). In 

that case, we adopted an alternative to the M’Naghten sanity test, a decision that 

was subsequently abrogated by the electorate with the 1982 passage of Proposition 

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

765, 768-769.) 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 directing the trial court to find 

him insane, thus avoiding a retrial of the case” under the newly 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 standard of review 

was substantial evidence. (Drew, at p. 350.)

The only evidence introduced at the sanity trial of Drew was the testimony 

of two court-appointed psychiatrists, both of whom opined that defendant was 

insane under M’Naghten. The prosecution presented no evidence at all. (Drew, 

supra, 22 Cal.3d at pp. 338-339, 350.) In arguing for reversal of the finding of 

sanity, the defendant relied on the unchallenged unanimity of expert opinion. We 

explained, however, that a finding of sanity could be upheld even “in the face of 

contrary unanimous expert opinion.” (Id., at p. 350.) Because the defendant has 
42

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 and 

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 

finding of sanity. (Ibid.)

As the foregoing suggests, the Drew standard, focusing the substantial 

evidence inquiry on the “weight and character” of the expert opinions of insanity,

arose in the context of a sanity trial in which the expert evidence of insanity 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 for a finding of competency to stand 

trial 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 this 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 several expert witnesses for each side. We have been provided 

with no justification for departing, in these circumstances, from the most common 
43

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 applied to a jury finding of competency to stand trial, an 

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 was legally sane at the time he committed 

the murder. Although one of the prosecution’s experts, Dr. Griesemer, found 

some slowing in defendant’s EEG test, he did not believe it indicated organic 

deficiencies and concluded defendant’s functioning was normal. Dr. Mohandie, 

the prosecution’s other expert, believed defendant was feigning at least some of 

his psychiatric symptoms. He also found no evidence that defendant suffered 

from bipolar disorder, as testified by the defense experts. In Dr. Mohandie’s view, 

some symptoms of the disorder would have been expected despite defendant’s 

medication, yet, as he noted, defendant disclaimed symptoms of mental illness, 

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 distinguish right from wrong. These 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 

the same as legal insanity, and their testimony was less clear in demonstrating the 

elements of insanity. For example, the defense experts were unified in suggesting 

that defendant was unable to control his conduct as a result of mental defects. 

Merely because a person finds it difficult or impossible to control his or her 

behavior, however, does not necessarily mean that the person lacks the ability to 

understand the nature and quality of that behavior or to distinguish right from 

wrong. On the latter issues, the defense experts were less unified, and the 

evidence supporting their conclusions was less compelling.

Defendant’s claim of insufficiency of the evidence is based on a detailed 

comparison of the testimony of his own experts with that of Drs. Griesemer and 

Mohandie, which, he contends, demonstrates that the prosecution experts failed to 

account for all of the various factors that were cited by the defense experts. The 

issue of legal sanity is, of course, a complex and uncertain one about which fully 

competent experts can reasonably disagree. While their testimony might not have 

revealed that Drs. Griesemer and Mohandie took into account all of the matters 

raised by the defense, we are satisfied by their qualifications and the nature of 

their testimony 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 defendant’s 

possible gang affiliation and racist beliefs

As noted ante, part A.4, defendant argues that the trial court committed 

prejudicial error in admitting evidence of his racist tattoos and gang membership. 

We discuss the admission of gang-related evidence separately for the guilt and 

penalty phases because they were tried to different juries and the exact nature of 

the evidence introduced at the two proceedings differed. The penalty phase jury 

was unaware of, and therefore unaffected by, the tattoo and gang membership 

evidence introduced in the guilt phase.

Prior to the second penalty phase trial, the defense sought to exclude 

evidence of defendant’s tattoos. The court acknowledged 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 were 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 and 

[defendant] belong to . . . ,” she was stopped in mid-sentence by an objection, 

which was sustained. Soon after, the prosecutor noted that defendant told Vannoy 

that Epperson’s ex-boyfriend was an African-American and asked whether 

Vannoy saw “any significance to saying that the boyfriend was black.” Defense 

counsel objected, and the prosecutor withdrew the question after being persuaded 

that the detective interviewing Vannoy, rather than defendant, had brought up

Sims’s race. No admonishment was requested or given.

As in the guilt phase, Timothy Todd, Epperson’s friend and assistant,

testified that defendant told him, “if [Sims] kept pursuing [Epperson], he would 

kill [Sims].” An objection was sustained to the prosecutor’s follow-up inquiry 

whether defendant had used a “racial epithet” when he made the threat, but not 

before Todd confirmed that an epithet had been used. Counsel did not request that 

the answer be stricken. Todd was thereafter allowed to testify, over objection, that 

in the year 2000, defendant told Todd he belonged to a “white gang.” Although 

Todd did not recall which gang, he said, “Well, I know there’s several white 

gangs. There’s the LRL, Aryan Nations, gangs like that.”

Sims testified that while he was together with defendant in a rehabilitation 

program, Sims did not know defendant well and 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 the defense presented the testimony of an African-American friend 

of defendant, whom he had met at the Weingart Center, the prosecutor asked the 

witness whether she was aware of defendant’s tattoos, without describing them. 

The witness 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 “picked 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 

“didn’t know that, no, I did not.”

In closing argument, the prosecutor never raised the possibility that 

Epperson’s killing was related to Sims or his race.

As the foregoing indicates, the evidence of defendant’s alleged gang 

membership admitted during the penalty phase was limited. Vannoy testified 

about his tattoos and denied gang membership, but he was prevented from 

testifying about defendant’s gang membership. Todd testified that defendant 

claimed to have belonged to a white gang and had used a racial epithet in speaking 

about Sims. Sims confirmed that he felt threatened by defendant, without 

expressly attributing his discomfort to perceived racism. Two African-American 

witnesses acknowledged an awareness of defendant’s tattoos, but neither described 

them; only the fact that the topic arose during the testimony of African-American 

witnesses hinted at their content. When the prosecutor eventually attempted to 

suggest to defendant’s mother that the tattoos related to racist sympathies, his 

mother denied it. And, as noted, none of this featured in the prosecutor’s closing 

argument.

Evidence of a defendant’s racist beliefs is inadmissible in the penalty phase 

of a capital trial if it is not relevant to an issue in the case. (Dawson v. Delaware 
48

(1992) 503 U.S. 159, 167; People v. Merriman (2014) 60 Cal.4th 1, 104 

(Merriman).) When evidence suggesting racist beliefs by a defendant is probative 

of an issue raised by the proceedings, however, we have affirmed its admission, 

notwithstanding any risk of prejudice. (See, e.g., People v. Townsel (2016) 63 

Cal.4th 25, 66-67 [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 explain 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 defendant’s tattoos and racial

gang membership was relevant to explain the motivation for and savagery of his 

attack on Epperson. Wounded racial pride could have caused him not only to 

assault Epperson, but to do so in a manner intended to cause her both great

suffering and disfigurement.

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 110, 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, “ ‘the trial court’s 
49

discretion [at the penalty 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 concern that crime scene photographs . . . can 

produce a visceral response that unfairly 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 circumstances of those crimes solely 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 an 

Evidence Code section 352 objection for abuse of discretion. (Eubanks, at 

pp. 144-145.)

A crime involving the degree of violence demonstrated here is in some 

manner incomprehensible and inexplicable. In attempting to affix the appropriate 

penalty, the jury was entitled to hear evidence bearing on the factors that possibly 

brought on the violence, whether, in the defense’s view, defendant’s mental 

instability, or otherwise. One of those possible factors was Epperson’s past 

intimate relationship, and her continued personal relationship, with an AfricanAmerican 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 of 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 penalty on a mentally ill defendant does not 

violate the Eighth Amendment

Defendant contends that even if he was not found to be legally insane at the 

time of the killing, the evidence demonstrates that he was and is mentally ill. He 

contends that imposition of the death penalty on a mentally ill person violates the 

Eighth Amendment’s prohibition against cruel and unusual punishment.

We considered the identical argument in Hajek and Vo, supra, 58 Cal.4th 

1144, concluding that neither the Eighth Amendment nor United States Supreme 

Court authority precludes imposition of the death penalty on mentally ill persons. 

(Id., at p. 1251.) As we held, “[m]ost significantly, the circumstance that an 

individual committed murder while suffering from a serious mental illness that 

impaired his judgment, rationality, and 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 of 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 category 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 determine 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 its holding. We noted that Hajek and

Vo’s “broad holding applies in the present case as well — especially considering that 

in this case the jury, after a separate trial involving copious testimony from mental 
51

health 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.) Just 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 was not considered 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 

hold that the Eighth Amendment precludes defendant’s execution by reason of 

mental illness.

3. Defendant’s various constitutional challenges to California’s 

imposition of the death penalty fail

Defendant raises a series of challenges to California’s death penalty statute. 

As he acknowledges, these arguments have been rejected by this court in past 

decisions. As he anticipates, we decline to revisit our prior holdings with respect 

to these issues, which are listed below. Given the longstanding nature of our 

rulings, we do not reiterate their rationale.

California’s death penalty laws adequately narrow the class of murderers 

subject to the death penalty. (People v. Henriquez (2017) 4 Cal.5th 1, 45

(Henriquez).) In particular, the special circumstances of section 190.2, which 

render a murderer eligible for the death penalty, are not so numerous and broadly 

interpreted that they fail adequately to narrow the class of persons eligible for 

death. (People v. Johnson (2016) 62 Cal.4th 600, 654-655; People v. Myles 

(2012) 53 Cal.4th 1181, 1224-1225.)
52

Section 190.3, factor (a), which permits the jury to consider the 

circumstances of the capital crime in its penalty determination, 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 jury 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 doubt that an 

aggravating circumstance has been proved (other than section 190.3, factor (b) or 

(c) evidence), that the aggravating factors outweigh the mitigating factors, or that 

death is the appropriate sentence. (People v. Rangel (2016) 62 Cal.4th 1192, 

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 conclusions are not affected by 

Apprendi 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, 1043.)

The jury’s reliance on unadjudicated criminal activity as a factor in 

aggravation under section 190.3, factor (b), without any requirement that the jury 

unanimously find that the activity was proved beyond a reasonable doubt, does not 

deprive a defendant of any federal constitutional right, including the Sixth 
53

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 does section 190.3’s use of adjectives such as “extreme” and 

“substantial” in factors (d) and (g), respectively, 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 

207, 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 not” 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; People 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 does 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 Eighth

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 no 
54

error related to the trial on the capital offenses or their punishment, there is 

nothing to cumulate and, in any event, we reject the claim that any asserted

cumulative effect warrants reversal.

III. DISPOSITION

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 for 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. Harris 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