People v. Cowell CA1/1 ( 2022 )

Filed 12/1/22 P. v. Cowell CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, A160637
Plaintiff and Respondent,
(Alameda County
v. Super. Ct. No. 18-
JOHN LEE COWELL, CR-01-6431)
Defendant and Appellant.
ORDER MODIFYING
OPINION AND
DENYING
REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on November 15, 2022, be
modified as follows:
1. On page 48: The first full sentence which reads, “And the fact the
jury found defendant guilty of attempted murder and found true the
allegation that he committed the attempted murder willfully and
with premeditation and deliberation, demonstrates that any error in
not including ‘intent to kill’ and not referencing the special
circumstance of lying in wait in the CALCRIM No. 3428 instruction
was harmless, as it is not reasonably probable a more favorable
1
result would have been reached had the asserted error not occurred.
(See People v. Ocegueda, supra, 247 Cal.App.4th at p. 1407 [whether
error in limiting jury’s consideration of mental disability evidence
was prejudicial is determined under Watson standard].)” shall be
modified to read:
And the fact the jury found defendant guilty of attempted murder
and found true the allegation that he committed the attempted murder
willfully and with premeditation and deliberation, demonstrates that
any error in not including ‘intent to kill’ and not referencing the special
circumstance of lying in wait in the CALCRIM No. 3428 instruction
was harmless under either the federal or state standard of prejudicial
error. (See Townsel, supra, 63 Cal.4th at p. 64.)”
2. Footnote 17 should be deleted, and all subsequent footnotes
renumbered accordingly.
There is no change in the judgment.
The petition for rehearing is denied.
Dated: ________________________________
Humes, P. J.
2
Filed 11/15/22 P. v. Cowell CA1/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A160637
v. (Alameda County
JOHN LEE COWELL, Super. Ct. No. 18-CR-01-6431)
Defendant and Appellant.
Defendant John Lee Cowell was charged with first degree murder and
attempted murder. Several enhancements were also alleged. He pled not
guilty by reason of insanity. Following the guilt phase of his trial, a jury
convicted him of all charges. Later, during the sanity phase, the trial court
directed a verdict that defendant was sane at the time he committed the
offenses.
On appeal, defendant claims numerous errors occurred during both
phases, although he does not challenge the sufficiency of the evidence
supporting his convictions. He contends the trial court erred by (1) failing to
reinstate competency proceedings; (2) conditioning his presence at trial on his
willingness to be cross-examined; (3) refusing to permit the jury to consider
evidence of mental disease in connection with the lying-in-wait special
circumstance; (4) striking his testimony for the sanity phase; (5) excluding
1
defense expert witness testimony during the sanity phase; (6) directing a
verdict on sanity after the jury began deliberations; and (7) denying motions
for mistrial. He additionally maintains the prosecutor committed misconduct
throughout the trial.
We affirm.
BACKGROUND1
On a July 2018 night, three sisters, N.W., L.W., and T.W.2 were waiting
for a BART train at the Concord station. Defendant was also on the platform.
All four boarded a train headed toward Oakland. T.W. and L.W. sat together,
and N.W. stood nearby. Defendant, who was wearing a gray hoodie and
sunglasses, sat near the sisters, but there was no interaction between them.
At the MacArthur station, the sisters exited the train in order to transfer,
and defendant followed.
When the next train arrived, T.W. boarded and took a seat. But before
N.W. and L.W. could board, defendant stabbed both in the neck with a
kitchen knife, which he had secreted in his pants pocket.
BART Police Officer Andres Rocha was on duty at the MacArthur
station when he heard “people screaming and . . . running” towards him.
They pointed Rocha toward the platform and told him “someone had a knife.”
Defendant had, by then, mixed in with the crowd and joined in “directing [the
police] back towards the BART station.” Rocha found N.W. and L.W. “seated
on the ground, both bleeding.” He began chest compressions on N.W., who
1 Because what happened on the night of the crimes was largely
uncontested, we provide only a brief overview of the facts here. We discuss
other aspects of the trial in more detail in connection with our discussion of
the issues on appeal.
2 We use the victims’ initials to protect their privacy interests. (Cal.
Rules of Court, rule 8.90(b).)
2
had “blood pouring” from her neck and mouth, until an EMT arrived and took
over. N.W. died at the scene from her injuries—a two-inch deep stab to her
carotid artery. L.W. was transported to a hospital and released the following
day.
About an hour after Officer Rocha was directed to the platform,
defendant boarded a bus, telling the driver he had injured his leg. Defendant
asked the driver to take him to the next nearest BART station, and the driver
let him off near the 12th Street station.
The following day, using video footage that captured defendant’s path
after exiting the MacArthur station, BART police officers followed
defendant’s probable trail toward a parking structure. There, they recovered
a pair of tan pants that matched the ones defendant was wearing in the
footage. The pants had “three tears” in the front pocket. At a nearby
construction site, officers found a kitchen knife.3 Officers also found a
backpack containing defendant’s medical documents, prescription bottles,
and a hoodie matching the one defendant was wearing in the surveillance
footage.
BART officers later arrested defendant on a train at the Pleasant Hill
station. He was coherent, responsive, and did not exhibit any signs that
caused “concern about his mental health well-being.”
The Alameda County district attorney filed an indictment charging
defendant with one count of murder (Pen. Code, § 187, subd. (a)—count 1)4
with alleged special circumstances of lying in wait (§ 190.2, subd. (a)(15)) and
Defendant “could not be excluded as the possible major contributor”
3
to a DNA mixture found on the knife.
All further statutory references are to the Penal Code unless
4
otherwise indicated.
3
personally using a deadly weapon (§ 12022, subd. (b)(1)), and one count of
attempted murder (§§ 187, subd. (a), 664, subd. (a)—count 2) with allegations
that defendant had acted with deliberation and premeditation, had
personally used a deadly weapon and had personally inflicted great bodily
injury (§ 12022.7, subd. (a)). It was further alleged defendant had suffered
two prior felony convictions within the meaning of the Three Strikes law.
(§§ 667, subd. (e)(2), 1170.12, subd. (c)(2).)
Defendant entered a plea of not guilty by reason of insanity. In support
of his plea, defendant presented extensive evidence of his mental health
history, in the form of testimony from treating physicians, defendant’s own
testimony, testimony from family members, and testimony from expert
witnesses.
Treating Providers
Dr. Jesus Perez, a psychiatrist, treated defendant at Atascadero
Hospital.5 During an interview, defendant told Dr. Perez that “he used
marijuana and methamphetamines on a daily basis, multiple times per day,”
that he “also had an issue of using heroin on and off,” and that he “was
drinking up to a fifth of vodka a day leading up to his arrest.” While
defendant “was endorsing that he was hearing voices during the interview,”
he was “very vague with his report of the voices.” Dr. Perez did not “see any
evidence that he was actually experiencing outward hallucinations at the
time.” Dr. Perez diagnosed defendant with “schizoaffective disorder, bipolar
type, antisocial personality disorder; amphetamine type use disorder; alcohol-
use disorder; cannabis-use disorder, [and] opioid-use disorder.”
5Defendant was admitted to Atascadero in early 2018 and discharged
four months later.
4
A month before the stabbings, at Contra Costa County Hospital,
Dr. Jonathan Patberg treated defendant two times, a week apart. On the
first occasion, defendant appeared high. He stated he used heroin “every
couple of days” and wanted to get Suvoxone, a medication to “treat[] opioid
addiction.” Dr. Patberg did not prescribe Suvoxone at that time. A week
later, on the second occasion, defendant once again sought “treatment for his
opioid use history.” This time, he also complained about the “presence of
breast implants,” which he wanted evaluated and taken out. Defendant also
told Dr. Patberg he was “hearing voices” but maintained he was still taking
Zyprexa, “an anti-psychotic” medication and Buspar, an “[a]nti-depressant;
anti-anxiety” medication. This time, Dr. Patberg prescribed the requested
Suvoxone.
A little over a week before the stabbings, Dr. Teresita Pontejos-
Murphy, a staff psychiatrist at John George Psychiatric Pavilion, an in-
patient psychiatric hospital, testified she treated defendant after he was
placed at the hospital on a Welfare and Institutions Code section 5150 hold.
Defendant reported he “had been hearing voices telling him that people were
out to kill him.” Dr. Pontejos-Murphy believed “those problems . . . were to be
associated with medication noncompliance.” Upon initial evaluation, Dr.
Pontejos-Murphy noted defendant was a “ ‘pleasant; somewhat manipulative
male; limited eye contact; no gross . . . motor agitation,’ ” and he was
“[a]lerted to person, place, and time.” On the date defendant was discharged,
he “denied any suicidal ideation or homicidal ideation,” “denied any auditory
hallucinations or visual hallucinations.” If, on the expected date of discharge,
a person is “a danger to himself or others,” Dr. Pontejos-Murphy will not
approve the discharge. Defendant had been scheduled to be released the day
before, but was suicidal and “kept for another day.”
5
Four days before the stabbings, defendant went to the Kaiser Oakland
emergency department where he was seen by Dr. Yin Huang. Defendant told
Huang he had suicidal ideations, was hearing auditory hallucinations, was
homeless, and someone had stolen $800 from him and had thrown urine on
him. Huang referred defendant to John George Psychiatric Pavilion on a
Welfare and Institutions Code section 5150 hold. He was released the
following day.
The day before the stabbings, defendant returned to the emergency
department at Kaiser Oakland and was seen by Dr. Thomas Catron. Catron
did not specifically remember the interaction, but his notes indicate
defendant’s “only concern” was that he had “twisted his ankle a week ago,
and it wasn’t feeling better.” Catron ordered an X-ray, wrapped defendant’s
foot, gave him ibuprofen and acetaminophen, and released him.
After defendant was arrested, and during the following year, defendant
was treated at the Santa Rita jail by Behavioral Health Clinician Ian Vianu.6
Defendant told Vianu he “was feeling optimistic about the possibility of a not
guilty by reason of insanity outcome in his court case.” After several months,
he was held in an isolated housing unit with “very limited contact” with other
inmates. He claimed auditory hallucinations were “commanding” him to “get
to the dorms and be around people.” He was also designated as an “Intensive
Observation Log” which is a “designation for inmates who are deemed high
risk to themselves.” This designation comes with “restrictions around what
[inmates] are allowed to have in their cells and on their body.” Defendant
told Vianu that he wanted “off IOL” because he wanted to “have an
undershirt, underwear, access to a razor, and . . . access to various paper
inside of his cell.”
6 Defendant was held at Santa Rita beginning in the summer of 2018.
6
A few weeks later, defendant stated he was “no longer bothered” by
auditory hallucinations and he had stopped taking his medication.
Defendant told Vianu that although he was still having auditory
hallucinations, he “kind of like[d] them; they are not bothering me; I’m not
going to take my meds.’ ” He stated his court case “ ‘could be going better,
but he was still hopeful for a NGI verdict.’ ” Defendant once again expressed
a desire to change housing units and became “verbally aggressive” toward
Vianu for “not supporting him sufficiently in moving him to another housing
unit.” He also indicated “he needed to be moved off” his current unit because
“a deputy had been threatening him.” Vianu stated that over the course of
his contact with defendant his auditory hallucinations were “ ‘consistently
inconsistent.’ ”
The following month, defendant told Vianu, “ ‘a possible mental
competency evaluation is quote/unquote so easy to ace the test.’ ” When
Vianu asked him to clarify, he stated that he wanted “ ‘to look crazy.’ ”
After nearly a year in custody, defendant was moved off the observation
log and moved to a different unit with more contact. He was still not taking
medication and remained in a “good mood.” At the time Vianu left his
position, in July 2019, defendant remained off of his medication.
Dr. Neal Edwards, a psychiatrist, testified he had treated defendant for
a period of time while he was at Santa Rita jail. During that time, although
defendant talked about his auditory hallucinations, he never “indicated a
fixed delusion that somebody had kidnapped his grandmother and he needed
to rescue her.” Dr. Edwards stated there were “a lot of inconsistencies” in
defendant’s reporting of auditory hallucinations. Defendant was on
medication until December 2018, when he no longer wanted to take anything.
7
Defendant’s Testimony
Defendant testified that he has been diagnosed with schizoaffective,
bipolar, amphetamine-type substance use, opioid use, and antisocial
personality disorders, and depression. He had been arrested and placed on “a
lot” of Welfare and Institutions Code section 5150 holds and had also served a
two-year sentence at a state hospital.
When defense counsel asked defendant if he ever “experienced a
delusion where you believe that you are seeing something that other people
can’t see,” defendant responded, “Are you talking about fake skin?” When
asked to clarify “fake skin,” defendant said, “Fake skin, something that you
put on your body, cut someone’s else’s skin off maybe, or understand that
hologram means hazardous. It means why can’t you explain to me why black
skin and white skin are different. Like, are we in an area that you can’t
explain things anymore. So people say fake skin—fake skin aliens make fake
skin on people; do surgery on people you don’t know who the person is
anymore that’s surgery on their face, on their voice, so you don’t recognize
them. They have fake skin. Your parents look different. You don’t know it’s
fake skin, fake people, fake skin.”
Defendant also claimed he heard voices and said he remembered
“hearing voices” after he was released from the state hospital, although he
did not remember what the voices said.
On the day of the stabbings, he recalled “being threatened by three
Black females that were together.” He admitted to the stabbings, but
asserted he had committed the acts because he thought all three were “going
to assault my grandmother,” and that they “said they had my grandmother
8
kidnapped.”7 He believed the “women on the train were aliens” and claimed
“they’re involved in the kidnapping.”
On cross-examination, defendant stated he believed the women “were
gang members” and that he was “rescuing my family from gang members.”
He asserted “it’s not illegal to aid, save, or rescue my family from a gang.” He
admitted his grandmother was not on the train, and that he “didn’t have a
visual hallucination of [his] grandmother being assaulted.”
Throughout portions of his cross-examination, defendant claimed not to
remember. He did not remember telling doctors “that most of the time [he]
got 5150’d was because [he was] just looking for a place to sleep,” that he had
“never mentioned ‘aliens’ ” or “fake skin” before in his “mental health
treatment,” or that he took heroin, methamphetamines, and drank “every
day” before going to prison. Nor did he remember that three days before the
stabbings he told “mental health treatment providers . . . that [he] had no
auditory or visual hallucinations.” And he did not remember telling the
clinicians at jail that he “want[ed] to look crazy,” that he “ ‘just want[ed] to go
back to Atascadero so they can release me,’ ” and that he was “feeling
optimistic about the possibility of not guilty by reason of insanity.”
At one point during cross-examination, defendant refused to answer the
prosecutor’s questions, and the court recessed until the following day.
The next day, defendant refused to come to court, and the trial court
ordered that “he be brought to court voluntarily or involuntarily.” Once
defendant arrived, he once again refused to answer any questions and,
instead, repeatedly accused the prosecutor of telling his attorney that he was
7 Defendant’s grandmother passed away in 2013.
9
not guilty. He then began yelling obscenities, at which point the court
ordered him removed from the courtroom.8
Other Witnesses
Defendant’s paternal aunt testified that even after defendant’s
grandmother had “passed in 2013, [defendant] would say that aliens were
holding her hostage and we need to do something about it; they were going to
kill her and they were torturing her.” On cross-examination, she
acknowledged that in her statement to the defense investigator, although she
talked about defendant’s mental health, she “never mentioned the word
‘aliens’ ” or “skin suits.”
Defendant’s former neighbor testified she had known defendant since
he was 15 years old, and she “watched [defendant] go from a troubled youth
into a severely disturbed young adult.” Defendant “became more violent; he
became more out there, you know, just thinking really bizarre things.” Over
the 11 years she knew him, defendant “began to lose friends,” and for a
period of “about five or six months straight, if you wanted to talk to [him] . . .
you had to open your mouth so he could inspect your teeth for transmitters.”
On cross-examination, the neighbor confirmed defendant was a “long-time
drug addict.”
Defense Experts
Dr. Jeremy Coles testified as a defense expert in forensic psychology
during the guilt phase of the trial. Dr. Coles never met defendant because
defendant refused to meet with him. Instead, Dr. Coles reviewed “about
10,000 pages or a little bit less of mental health documents.” He opined
8 We discuss the events pertinent to defendant’s removal from the
courtroom in more detail in connection with our discussion of the issue on
appeal.
10
defendant was afflicted with schizophrenia, paranoid type. Generally, to
“meet the criteria” for schizophrenia, a person must “show hallucinations,
delusions, or disorganized speech. . . . One of those three has to be present,
and then two other symptoms would be disorganized behavior, maybe like
laughing to yourself or responding to internal stimuli, getting agitated for no
reason.” All of those things, among others, were “contained in [defendant’s]
record in many, many places.”
Dr. Coles ruled out substance-induced psychotic disorder because
defendant had been in prison for 16 months and his “symptoms never went
away, and often got worse. And while there are definitely drugs in prison, it’s
unlikely that he had access to them both financially and he wasn’t affiliated,
so loners that are running around the prison with no money generally don’t
have access.” Dr. Coles also ruled out antisocial personality disorder because
although there was “antisocial behavior,” Dr. Coles believed that could be
“best explained by his schizophrenia.” He opined that defendant was in “an
acute and active episode of schizophrenia leading up to the offense” based on
his “record in the period all the way up to a week before he committed these
crimes,” which included “persecutorial delusions; auditory hallucinations;
telling him to hurt somebody; delusions about having breast implants; he
wasn’t taking his medication.” Specifically, Dr. Coles stated that as
defendant was experiencing those symptoms “in the time period leading up to
the offense,” it is “psychologically probable with pretty high certainty that
some of that was going on; perhaps all of it at the time of the offense.” Dr.
Coles did not testify during the sanity phase of the trial, and, in fact, testified
that while there was “ample evidence to conclude [defendant] was psychotic
up through all of the records which come to right before the crime,” he could
not form an opinion “as to how that did or did not interact with what he did.”
11
Dr. Jeffrey Gould also testified as a defense expert in psychiatry during
the guilt phase. Dr. Gould opined defendant “suffers from a psychotic
disorder,” unspecified, meaning someone who “suffers from a psychotic
illness, a chronic psychotic disorder, but there was either insufficient
information or conflicting information available to determine one of the more
specific psychotic disorders.” Defendant’s psychotic disorder was “separate
from how substances likely exacerbated his symptoms during times he was
using.” Defendant had “documented occasions when he was having delusions
about aliens” and “delusions involving people in fake skins or people being
imposters.” However, defendant did not “mention that his grandmother had
been kidnapped” in regard to any of the references about “aliens.” Dr. Gould
also did not interview defendant, but reviewed “8,000 or 10,000 pages” of
defendant’s medical records from 2004 to 2018, the police report, and his
criminal history record. He did not testify during the sanity phase, nor did
he render any opinion on that subject.
DISCUSSION
Guilt Phase Issues
Competency: Changed Circumstances
In December 2018, proceedings were suspended after defense counsel
declared doubt as to defendant’s mental competency. The court appointed
two alienists to perform an evaluation. One opined defendant was
incompetent to stand trial (Dr. Marlin Griffith), while the other was unable
to make a determination (Dr. John Chamberlin).
[REDACTED TEXT.]
The district attorney requested defendant be examined by a third
alienist, Dr. Jason G. Roof. The court granted the request.
12
Dr. Roof opined defendant was competent to stand trial. [REDACTED
TEXT.]
The parties submitted on the three alienists’ reports. The court found
Dr. Roof’s report “to be the most . . . persuasive,” and ruled defendant was
competent to stand trial and reinstated the proceedings.
Five months later, defense counsel again declared doubt [REDACTED
TEXT].
The court declined to suspend criminal proceedings, stating “there are
two factors that I’m wrestling with in this case. One is the, shall I say,
symptoms that [defendant] exhibited in his original reports from
Chamberlain, Griffith, and Roof, were irrational, nonsensical, delusional
statements. [¶] Now we have silence and refusal to cooperate, just shutting
down essentially. So we have something that’s different. But in each of those
three reports, and most specifically in Dr. Roof’s report, we have findings of
malingering on the part of [defendant]. So if we have malingering—and
maybe we still do, maybe we don’t, I don’t know—and we have a refusal to
cooperate, the way I would look at it is my conclusion would be he’s just not
cooperating, he is—there’s no new evidence of substantial change of
circumstances or anything that gives in my mind serious doubt about the
validity of the original competency finding, so I wouldn’t order—I wouldn’t
reinstate competency proceedings.”
Instead, the court appointed Dr. Roof to file a supplemental evaluation
on whether proceedings should be suspended.
Dr. Roof opined there had been no substantial change of circumstances
and no new evidence giving rise to a serious doubt about the validity of the
original competency finding. [REDACTED TEXT.]
13
The trial court found there was “not substantial evidence as to
[defendant’s] incompetence, changed circumstances or new evidence as set
forth on the record.” The court based its determination on Dr. Roof’s
supplemental report and the court’s “own observations of the defendant most
recently” on entering his plea the week prior.
Three weeks after the trial court made its determination, defense
counsel again declared doubt as to defendant’s competency. In addition to
the observations recounted in her prior affidavit, counsel wanted to put more
examples on the record. Counsel’s observations included: defendant
“repeatedly smiling and laughing inappropriately, as if he’s responding to
internal stimuli”; defendant “trying to muffle a laugh and smiling while
sitting at counsel table”; defendant appearing to have “full-on conversations
as if there’s another person present”; and defendant “sa[ying] loud things
inappropriately in front of the potential jurors as they were walking in the
courtroom” such as “I need to brush my teeth” or “ ‘she won’t have sex with
me.’ ”
Based on the court’s “own observations of the defendant most recently
and taking into consideration [Dr. Roof’s] report,” the court again found there
were no “changed circumstances such as would require a suspension of the
criminal proceedings.”
Defendant maintains the court committed reversible error in failing to
reinstate competency proceedings. He asserts that during the February 2020
hearing, his counsel presented substantial evidence that he was experiencing
new and worsened symptoms, constituting a substantial change of
circumstance in his mental condition.
A defendant is incompetent to stand trial if, “as a result of a mental
health disorder or developmental disability, the defendant is unable to
14
understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.” (§ 1367, subd. (a); see People v.
Parker (2022) 13 Cal.5th 1, 28–29 (Parker).) Trial of an incompetent
defendant violates both state and federal due process guarantees. (People v.
Smith (2003) 110 Cal.App.4th 492, 499; see U.S. Const., 14th Amend.; Cal.
Const., art. I, § 15.) Thus, “[a] person shall not be tried or adjudged to
punishment . . . while that person is mentally incompetent.” (§ 1367,
subd. (a).)
“ ‘Penal Code section 1368 requires that criminal proceedings be
suspended and competency proceedings be commenced if “a doubt arises in
the mind of the judge” regarding the defendant’s competence (id., subd. (a))
and defense counsel concurs (id., subd. (b)).’ ” (People v. Wycoff (2021)
12 Cal.5th 58, 82.)
However, “the duty to suspend is not triggered by information that
substantially duplicates evidence already considered at an earlier, formal
inquiry into the defendant’s competence, and that when faced with evidence
of relatively minor changes in the defendant’s mental state, the court may
rely on a prior competency finding rather than convening a new hearing to
cover largely the same ground.” (In re Sims (2021) 67 Cal.App.5th 762, 783.)
“[W]hen a defendant has already been found competent to stand trial, ‘ “a
trial court need not suspend proceedings to conduct a second competency
hearing unless it ‘is presented with a substantial change of circumstances or
with new evidence’ casting a serious doubt on the validity of that finding.” ’ ”
(Ibid.)
Further, “once a defendant has been found to be competent, even
bizarre statements and actions are not enough to require a further inquiry.”
(People v. Marks (2003) 31 Cal.4th 197, 220 (Marks).) Nor is an appellate
15
court in a position “ ‘ “ ‘to appraise a defendant’s conduct in the trial court as
indicating insanity, a calculated attempt to feign insanity and delay the
proceedings, or sheer temper.’ ” ’ ” (Ibid.)
Accordingly, “[r]eviewing courts give great deference to a trial court’s
decision whether to hold a competency hearing.” (Marks, supra, 31 Cal.4th at
p. 220.) We review the trial court’s finding of no substantial change of
circumstances or no new evidence casting doubt on the validity of the initial
competency determination for substantial evidence. (People v. Huggins
(2006) 38 Cal.4th 175, 220.)
Citing to People v. Easter (2019) 34 Cal.App.5th 226 (Easter) and People
v. Tejeda (2019) 40 Cal.App.5th 785 (Tejeda), defendant asserts counsel
presented evidence of “different” and “inconsistent” symptoms than formed
the “basis for the previous competency finding.”
Both Easter and Tejeda rely in part on People v. Jones (1991) 53 Cal.3d
1115 (Jones) and People v. Rodas (2018) 6 Cal.5th 219 (Rodas).
In Jones, supra, 53 Cal.3d 1115, the defendant, during pretrial
proceedings, was found competent to stand trial. (Id. at pp. 1128, 1132,
1153.) After trial, but before the court pronounced judgment, “defense
counsel asked the court to suspend proceedings . . . to conduct a hearing to
determine whether defendant was mentally competent.” (Id. at p. 1152,
fn. omitted.) Counsel explained that “for a substantial period of time
defendant had been unable to assist in the preparation and defense of the
case.” Counsel “added that . . . a psychiatrist, was present and would so
testify.” The trial court declined to suspend proceedings. (Id. at p. 1152.)
On appeal, the defendant argued counsel’s representations provided
substantial evidence. (Jones, supra, 53 Cal.3d at p. 1152.) Our Supreme
Court disagreed, explaining that although counsel asserted the defendant
16
was uncooperative, counsel “offered no facts to support that claim” nor did he
offer any “explicit description of the testimony that [the psychiatrist] could
offer.” (Id. at p. 1153.) Further, “when . . . a competency hearing has already
been held, the trial court may appropriately take its personal observations
into account in determining whether there has been some significant change
in the defendant’s mental state. This is particularly true when . . . defendant
has actively participated in the trial. The trial court had an opportunity to
observe, and converse with, defendant throughout the trial itself and the
posttrial proceedings. The court appropriately considered these observations
in concluding that defendant’s condition was essentially unchanged from the
start of trial, when the court found him competent, to the time he was
sentenced, when defense counsel asked that proceedings again be
suspended.” (Ibid.)
In Rodas, supra, 6 Cal.5th 219, 224, the defendant, at the outset of the
proceedings, was found incompetent to stand trial. “After several months of
treatment with antipsychotic medication, hospital physicians reported that
defendant had regained trial competence.” (Id. at p. 223.) This
determination “was effectively conditioned” on defendant’s continued use of
his antipsychotic medication. (Id. at pp. 232, 235.) The trial court ruled
defendant was competent and reinstated criminal proceedings. (Id. at
p. 226.)
After jury selection, the trial court learned the defendant had stopped
taking his medication, and defense counsel expressed doubt as to his
competency. Counsel stated that the defendant had begun communicating
incoherently, and had started exhibiting some of the same symptoms, namely
“marked disorganization to his thinking, and “ ‘ “speaking in nonsensical
terms or word salad with legalistic flavor,” ’ ” (Rodas, supra, 6 Cal.5th at
17
p. 224), which had led to earlier episodes of incompetence. Defendant had
also changed his mind about wanting to testify. (Id. at pp. 227, 231.) After a
brief colloquy with defendant, the court declined to reinstate competency
proceedings. (Id. at p. 229.) The defendant testified, despite his counsel’s
advice to the contrary. The testimony was incoherent, and the trial court
struck it as irrelevant. (Id. at pp. 223, 229.) The jury returned a guilty
verdict. (Id. at p. 230.)
The Supreme Court concluded the trial court erred in failing to suspend
the criminal proceedings after defense counsel expressed doubt as to the
defendant’s competency. (Rodas, supra, 6 Cal.5th at pp. 231–232.) The high
court explained, “The effect of the Jones rule is simply to make clear that the
duty to suspend is not triggered by information that substantially duplicates
evidence already considered at an earlier, formal inquiry into the defendant’s
competence; when faced with evidence of relatively minor changes in the
defendant’s mental state, the court may rely on a prior competency finding
rather than convening a new hearing to cover largely the same ground.” (Id.
at pp. 234–235.) In the instant case, however, the “evidence before the trial
court made it unreasonable to continue to rely on the prior competence
finding,” because that finding was “based solely on” the defendant’s continued
use of his medication, and the trial court had learned the defendant had
discontinued his medication and “was again displaying symptoms similar to
those he exhibited during bouts of incompetence.” (Id. at p. 235.)
With this background in mind, we turn to Easter and Tejeda.
In Easter, supra, 34 Cal.App.5th 226, defense counsel expressed doubt
as to the defendant’s competency to stand trial. (Id. at p. 230.) The court
suspended criminal proceedings, and defendant was evaluated by two
medical professionals, one finding him competent to stand trial, the other
18
finding him incompetent. A jury found defendant competent, and the
proceedings resumed. (Id. at pp. 230–235.)
Six months after the competency hearing, defense counsel again
expressed doubt as to defendant’s competency. (Easter, supra,
34 Cal.App.5th at p. 235.) Counsel noted “ ‘a significant deterioration in [the
defendant’s] mental acuity.’ ” Specifically, counsel stated defendant was
“ ‘responding to . . . auditory hallucinations,’ ” which had been a “ ‘problem in
the past, but it has become more acute,’ ” and there were new symptoms,
including, “ ‘a serious decline in [the defendant’s] personal hygiene’ ” and “
‘the word “salad,” ’ ” which counsel described as “ ‘a mixture of appropriate
and inappropriate logical and fanciful responses to questions.’ ” (Id. at
pp. 235–236, 243.) The trial court declined to reinstate competency
proceedings, finding counsel’s “offer of proof did not establish a substantial
change of circumstances.” (Id. at p. 240.) Less than a week later, the trial
court again declined to reinstate competency proceedings because the
defendant had understood everything that occurred at a recent Marsden
hearing.9 (Easter, at p. 242.)
Citing to Rodas, a different division of this court reversed. (Easter,
supra, 34 Cal.App.5th at p. 229.) The court noted, “the evidence of the new
symptom [in Rodas]—defendant’s ‘ “word salad” ’—was similar to the
evidence of the new symptom here, and in both cases defense counsel
informed the court that the change in defendant’s mental state, likely linked
to his medication, prevented counsel from understanding what defendant was
attempting to communicate.” (Id. at pp. 245–246.) Additionally, “Rodas’s
explanation of ‘the Jones rule’ makes clear that [the trial court’s] later
observations regarding defendant’s mental state during a hearing on a
9 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
19
motion in limine and a Marsden hearing could not obviate the necessity of a
renewed competency hearing in the face of the evidence of new symptoms
presented by [defense counsel].” (Id. at p. 246.)
In Tejeda, supra, 40 Cal.App.5th 785, the defendant was twice found
incompetent to stand trial based on his “persistent belief that his actions
were controlled by a ‘mind control project’ run by the federal government.”
(Id. at p. 787.) In both proceedings, a doctor opined defendant’s delusions
affected his ability to rationally assist counsel. “Whereas some criminal
defendants malingered,” or pretended to have a mental illness, Tejada, “was
‘faking good’—i.e., hiding his delusions to be taken seriously.” (Id. at
pp. 789–790, 794.) When, years later, the trial court found the defendant had
been restored to competency, “it did so on the premise that he understood his
delusion was not relevant to his defense” and that he “could set aside” or
compartmentalize “his delusions for purposes of assisting counsel.” (Id. at
pp. 790, 794.)
Several days into trial, the court held a Marsden hearing after the
defendant expressed dissatisfaction with his counsel in that counsel failed to
plead not guilty by reason of insanity. (Tejeda, supra, 40 Cal.App.5th at
pp. 790–791.) At the hearing, counsel explained the defendant had recently
told him “he ‘never thought [his case] would get this far, because he thought
Donald Trump would intervene,’ ” and that he wanted to testify and confess
in order to “ ‘speak about why he did it as a result of a mind control
program.’ ” (Id. at p. 794.) The trial court made inquiries of the defendant
and then denied the motion. That same day, the defendant took the stand
against counsel’s advice and proceeded to deny having any mental illness and
to admit to the crimes but maintained he did so because “he had been
20
controlled by the project” and needed money to “catch a plane to Langley to
‘get to the bottom of this mind control project.’ ” (Id. at p. 791.)
Citing to Rodas, the Court of Appeal held the trial court committed
error when it did not declare doubt as to the defendant’s competency after it
learned at the Marsden hearing of his anticipated testimony and then heard
his actual testimony. (Tejeda, supra, 40 Cal.App.5th at p. 791.) As in Rodas,
the appellate court concluded the trial court was “confronted with
circumstances that were inconsistent with” assumptions on which the
defendant’s competency finding had been based, namely that his restoration
to competency “was expressly premised on [the doctor’s] belief that he could
compartmentalize his delusion and keep it separate from his legal defense.”
Indeed, the trial court, in making the restoration to competency finding had
“recognized the possibility that at ‘some unspecified time in the future’ [the
defendant] might attempt to ‘sabotage his own criminal case.’ ” (Id. at
pp. 795–796.) Based on those facts, the appellate court held the trial court
should have declared doubt and held a new competency hearing. (Id. at
p. 796.)
Defendant maintains that, as in Easter, “here trial counsel ‘provided
unequivocal specifics about recent changes’ ” and that, as in Tejeda, “the
evidence shows the new circumstances were inconsistent with the basis for
the previous competency finding.”
However, defendant’s asserted symptoms were not new. [REDACTED
TEXT.] And, unlike in Easter or Tejeda, where the competency
determinations where conditioned on the defendant’s continued use of
antipsychotic medication or the defendant’s belief that he could
compartmentalize any delusions, here, there were no such conditions.
[REDACTED TEXT.]
21
Defendant makes much of the fact that “trial counsel described
appellant responding to internal stimuli and, while unobserved, having
conversations with nonexistent others,” which he says “should have obviated
concerns about malingering.” However, defendant had routinely self-reported
hearing voices. Thus, counsel’s report of defendant’s “unobserved”
conversations did not describe any “new” symptom.
In sum, given the trial court’s own observations of defendant’s
behavior, and the additional report from Dr. Roof, we cannot say the trial
court erred in declining to reinstate competency proceedings.
Defendant’s Removal from the Courtroom
Defendant maintains his convictions must be reversed because he was
excluded from certain trial proceedings.
During the prosecutor’s opening statement in the guilt phase,
defendant was removed from court for disruptive behavior. The court read
section 1043, subdivision (b)(1) to defendant and told him if he could promise
that he would not continue to disrupt the proceedings, he would be allowed to
return to court. Defendant agreed to comport himself.
That afternoon, defense counsel advised the court that the deputies had
reported that defendant was refusing to come to court. The deputies also told
counsel they had recorded his refusal on their personal digital recording
devices (body cams). The court responded, “It appears [as] if your client is
indeed requesting not to be present, that he may exercise that choice under
1043(a)(2), which is any prosecution for an offense which is not punishable by
death and which the defendant is voluntarily absent. [¶] Do you agree that
the defendant is exercising his option under that subdivision?” Defense
counsel replied, “I wasn’t present, but I have no reason to think that Deputy
Ty and Deputy Townsend would lie.” The prosecutor balked and asked that
22
the court obtain a court reporter and have the court reporter record
defendant’s refusal or review the recordings before finding defendant had
voluntarily absented himself. The court declined to do so. Rather, it swore in
Deputy Townsend, questioned him about the encounter with defendant, and
gave defense counsel the opportunity to question him as well. Defense
counsel asked no questions.
Thereafter, defendant chose to absent himself, either waiving his
appearance himself or through counsel.
Later, during the defense case, defendant chose to appear and testify
on his own behalf. However, during cross-examination, defendant began to
refuse to answer the prosecutor’s questions, instead, responding with
comments like, “There’s nothing I can do for you,” or “You were rude to me.”
Following a recess during which defendant was not present, deputies notified
the court he was again “refusing” to return to court. The court ordered
defendant brought to court “voluntarily or involuntarily.”
Upon his arrival in the courtroom, and outside the presence of the jury,
the court told defendant, “You are a witness now. You have chosen to take
the witness stand, therefore, you do not have a right to voluntarily be absent,
so I’m ordering you to resume the witness stand and to testify.” Defendant
responded, “He told me not guilty. [¶] What happens next?” The court
stated, “Well, you are still presumed innocent. The trial is not over yet. You
have chosen to take the witness stand in your own defense. You have not
completed your testimony, so I’m ordering you to be present and to complete
your testimony.”
Shortly after cross-examination resumed, it again broke down.
Defendant repeatedly asserted the prosecutor had told him and his attorney
that he was “not guilty.” The court admonished defendant stating,
23
“Mr. Cowell, you have exercised your constitutional right to take the witness
stand. When that is done— [¶] . . . [¶] —he may cross-examine you.”
However, defendant continued to assert that the prosecutor had told him he
was “not guilty.” At one point, defendant began yelling obscenities, and the
trial court ordered him removed from the courtroom.
That afternoon, outside the presence of the jury, the bailiff informed
the court that defendant “wanted to come down to the courtroom.” The court
told the bailiff to inform defendant, “he would be allowed to return to the
courtroom, but that would be to resume the stand and to continue cross-
examination.” The court continued, “I would state that Mr. Cowell will be
allowed—in the completion of the case in this guilt phase, he would be
required to take the stand to conclude his cross-examination. And he would
be allowed to do so as long as he is not disorderly, disruptive or disrespectful.
[¶] If he is, then he would be removed after a warning like on prior
occasions.”
The next court day, the court observed that defendant had again
refused to attend and stated he had been “removed from the courtroom . . .
because of his courtroom conduct in disrupting the court. I’ve informed
counsel that if he comes back to court that he will be subject to . . . cross-
examination.” Further, if defendant “persists in refusing to complete his
cross-examination, I will entertain a motion to strike his testimony.”
One day later, outside the presence of the jury, the court ordered that
defendant be brought to court. The court stated, “Mr. Cowell, when you were
last in court, you were in the process of being cross-examined by the District
Attorney. [¶] During that cross-examination you conducted yourself in a
disorderly, disruptive and disrespectful manner and I had you removed from
the courtroom. [¶] I informed your attorney that should you come back into
24
court, it would be for you to resume cross-examination so that that cross-
examination and any redirect examination by your attorney might be
completed, but that during it, you would be expected to conduct yourself
consistently with the decorum and respect inherent in the concept of courts
and judicial proceedings. [¶] . . .[¶] . . . But if you choose not to conduct
yourself with the decorum of courts and judicial proceedings, I would have
you removed.” The court continued, “If you choose not to come at all for
further cross-examination, I can consider taking sanctions including striking
all the testimony that you have given and inform the jury not to consider that
testimony in deciding your guilt or innocence. [¶] So the choice is yours.”
Defendant declined to retake the stand, and the trial court proceeded to hear
from counsel regarding appropriate sanctions.
The following morning, the court asked the bailiff to “inform
[defendant] that he will not be expected to take the stand, and to ask him
again if he wants to come to court. At that point, defense counsel stated,
“Your Honor, I’m willing to stipulate if the Court wants to, that what’s
already done is sufficient for him to show that he’s absenting himself from
the trial, unless if the Court wants to do it for clarification.” The court
responded, “I think it should be made clear to him, because in case he later
claims that he was threatened to take the stand, and that’s the reason that
he didn’t come to court.
Constitutional Right to Be Present
A criminal defendant has the right under state and federal
Constitutions “to be personally present with counsel” at every critical stage of
the trial. (Cal. Const., art. I, § 15; People v. Rundle (2008) 43 Cal.4th 76, 133
25
(Rundle);10 People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465
(Bryant).) A critical stage is “one in which a defendant’s ‘ “absence might
frustrate the fairness of the proceedings” [citation], or “whenever his presence
has a relation, reasonably substantial, to the fullness of his opportunity to
defend against the charge.” ’ ” (Rundle, at p. 133; Bryant, at p. 465.)
However, a “defendant may waive his or her constitutional right to be
present during a critical stage, provided the waiver is knowing, intelligent,
and voluntary.” (Rundle, supra, 43 Cal.4th at pp. 133–134.)
Defendant complains that the trial court unlawfully “conditioned” his
right to be present “on his willingness to be cross-examined.”
However, as we have recited in detail, the court did not condition
defendant’s presence in court on the completion of cross-examination.
Rather, it removed defendant from the courtroom several times because he
conducted himself in a “disorderly, disruptive and disrespectful manner,”
including while being cross-examined by the prosecutor. A defendant has no
constitutional right to engage in disruptive behavior, and a trial court does
not infringe a defendant’s constitutional rights to be present by telling a
defendant that he cannot remain in court unless he comports himself
appropriately. (See People v. Medina (1995) 11 Cal.4th 694, 738.)
That defendant put himself in the position of having his testimony
stricken due to his refusal to permit cross-examination is an entirely different
issue. Any witness who takes the stand and gives direct testimony must, as a
matter of due process to the opposing party, submit to cross-examination, and
if they do not, their direct testimony is subject to being stricken. (See, e.g.,
Jenkins v. Anderson (1980) 447 U.S. 231, 236, fn. 3 [“ ‘a defendant who takes
10 Overruled on another ground as stated in People v. Doolin (2009)
45 Cal.4th 390, 421, footnote 22.
26
the stand in his own behalf cannot then claim the privilege against cross-
examination on matters reasonably related to the subject matter of his direct
examination’ ”]; Brown v. United States (1958) 356 U.S. 148, 155 [criminal
defendant “ ‘has no right to set forth to the jury all the facts which tend in his
favor without laying himself open to cross-examination upon those facts’ ”];
People v. Reynolds (1984) 152 Cal.App.3d 42, 46 (Reynolds) [defendant’s
refusal to answer relevant questions may deprive prosecution of right to
subject defendant’s claims “to ‘the greatest legal engine ever invented for the
discovery of truth,’ cross-examination”].)
Thus, the trial court did not abridge defendant’s right to be present by
telling him that, having chosen to testify on his own behalf, he was subject to
cross-examination by the prosecution, and if he persisted in thwarting
cross-examination, the court could properly strike his testimony on direct.
This was not coercion or a threat by the court. Rather, it was a correct
statement of the law. (See, e.g., Fost v. Superior Court (2000) 80 Cal.App.4th
724, 735–736 (Fost) [where witness “ ‘refuses to submit to proper cross-
examination regarding material issues, the striking out or partial striking
out of direct testimony is common, and has been allowed even where the
result was to deprive a criminal defendant of the fundamental constitutional
right to testify in his own behalf,’ ” quoting Reynolds, supra, 152 Cal.App.3d
at pp. 47–48].)
Furthermore, the court’s final exchange with counsel emphasized that
the issue with respect to attendance was not whether defendant would allow
the prosecutor to complete cross-examination—the court assumed he would
not do so. Rather, the issue was whether he would comport himself
appropriately, and the court wanted to ensure that defendant understood
that that was what was required of him to return to court.
27
As for those instances in which defendant simply refused to attend, he
either waived his appearance himself, or did so through counsel. In addition,
counsel agreed at one point that defendant had exercised his right to “absent
himself” from court and, during the final colloquy with the court, counsel was
prepared to stipulate that defendant was voluntarily “absenting himself”
from trial.
In sum, defendant’s constitutional rights to be present were not
conditioned on his allowing the prosecutor to complete cross-examination.
Rather, his being present was conditioned, and permissibly so, on his
comporting himself appropriately. As for those times defendant simply
refused to attend, he voluntarily waived his right to be present. Thus, there
was no violation of defendant’s constitutional rights to be present.
Statutory Right to Be Present
Defendant further contends, for the first time on appeal, that even if he
knowingly waived his constitutional rights to be present, he did not—because
he legally could not—waive his statutory rights under sections 977 and 1043
to be present.
Section 977, subdivision (b)(1) states: “[I]n all cases in which a felony is
charged, the accused shall be physically present . . . during those portions of
the trial when evidence is taken before the trier of fact, and at the time of the
imposition of sentence. The accused shall be physically or remotely
present at all other proceedings unless [he or she] waive[s] [his or her] right
to be physically or remotely present, with leave of court and with approval by
defendant’s counsel.” Section 1043, subdivision (b) states: “The absence of
the defendant in a felony case after the trial has commenced in [his] physical
presence shall not prevent continuing the trial to, and including, the return of
the verdict in any of the following cases: [¶] (1) Any case in which the
28
defendant, after being warned by the judge that [he] will be removed if [he]
continues [his] disruptive behavior, nevertheless insists on acting in a
manner so disorderly, disruptive, and disrespectful of the court that the trial
cannot be carried on with the defendant present in the courtroom. [¶] (2) Any
prosecution for an offense which is not punishable by death in which the
defendant is voluntarily absent.” (Italics added.)
As our high court has explained, “ ‘when read together, sections 977
and 1043 permit a capital defendant to be absent from the courtroom only on
two occasions: (1) when he has been removed by the court for disruptive
behavior under section 1043, subdivision (b)(1), and (2) when he voluntarily
waives his rights pursuant to section 977, subdivision (b)(1). However,
section 977, subdivision (b)(1), the subdivision that authorizes waiver for
felony defendants, expressly provides for situations in which the defendant
cannot waive his right to be present, including during the taking of evidence
before the trier of fact. Section 1043, subdivision (b)(2), further makes clear
that its broad “voluntary” exception to the requirement that felony
defendants be present at trial does not apply to capital defendants. Thus, [a]
trial court, by permitting a nondisruptive capital defendant to be absent
during the taking of evidence, commit[s] error under sections 977
and 1043.” (People v. Jackson [(1996)] 13 Cal.4th [1164,] 1210.) ‘The
Legislature evidently intended that a capital defendant’s right to voluntarily
waive his right to be present be severely restricted.’ (Id. at p. 1211.)” (People
v. Weaver (2001) 26 Cal.4th 876, 967–968 (Weaver); accord, People v. Bloom
(2022) 12 Cal.5th 1008, 1059; Rundle, supra, 43 Cal.4th at p. 135 [court
“stress[es] that a defendant’s statutory ability to waive his presence in a
capital case is more circumscribed than the associated ability to waive his
constitutional right” to be present].)
29
However, such error, “being merely statutory,” will be reversed only if
“ ‘ “it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.” (People v.
Watson [(1956)] 46 Cal.2d 818, 836.)’ (People v. Jackson, supra, 13 Cal.4th at
p. 1211.)” (Weaver, supra, 26 Cal.4th at p. 968; accord, Rundle, supra,43 Cal.4th at p. 134.)
The parties dispute whether the “capital defendant” rule established by
these statutory provisions applies here. While defendant was charged with a
special circumstance murder, an offense punishable by death, the prosecution
did not seek the death penalty.
Defendant cites to In re Bright (1993) 13 Cal.App.4th 1664, 1670
(Bright). In Bright, the petitioner sought “writ review of an order of the trial
court denying [him] pretrial bail in a pending prosecution for murder with
special circumstances.” (Id. at p. 1665.) The Court of Appeal concluded that
“regardless of whether the People actually seek the death penalty, bail
properly may be denied whenever the accused is charged with an offense
statutorily punishable by death and the ‘facts are evident or the presumption
[of guilt is] great.’ ” (Id. at p. 1666.)
The Attorney General cites to Corenevsky v. Superior Court (1984)
36 Cal.3d 307, 317–318 (Corenevsky). In Corenevsky, the petitioner sought
writ review of an order denying him state-funded ancillary defense services
and assistance of additional appointed counsel pursuant to section 987.9.
(Corenevsky, at pp. 312, 315.) Our Supreme Court held that “ ‘[in] those
murder cases . . . in which the death penalty will not be sought, even though
the offense charged is statutorily punishable by death, section 987.9 is
inapplicable.’ ” (Id. at p. 317.)
30
We think the Attorney General probably has the better argument, but
neither party has cited a case that is on point, and, on this record, we need
not, and do not, decide whether the “capital defendant” rule established by
sections 977 and 1043 applies only to cases in which the death penalty is
actually sought. Even assuming defendant did not forfeit this statutory rule
by failing to raise it below (see Rundle, supra, 43 Cal.4th at p. 135), and even
assuming the trial court violated these statutory provisions, it is not
“reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.”11 (Watson, supra,
46 Cal.2d at p. 836.)
To begin with, defendant was present during parts of the trial. He was
absent during his aunt’s testimony and maintains that had he been present,
he “could have helped his attorney rehabilitate her on re-direct by addressing
some of” the matters with which the prosecutor sought to impeach her. He
was also absent during the testimony of his treating doctors, and again
claims that had he been present, he “could have assisted his attorney in real
time in responding to the cross-examination.” However, these generic
assertions of supposed assistance, devoid of any detail, are sheer speculation
and of no evidentiary value. (See Rundle, supra, 43 Cal.4th at p. 136 [“no
evidence in the record that defendant might have assisted counsel in some
other manner had he been present” during his mother’s testimony].)
11 Defendant incorrectly maintains the prejudicial error standard of
Chapman v. California (1967) 386 U.S. 18, 23, controls. Our Supreme Court
has made it abundantly clear that any error under sections 977 and 1043 is
subject to the Watson harmless error standard. (E.g., Rundle, supra,43 Cal.4th at p. 134; Weaver, supra, 26 Cal.4th at p. 967; People v. Jackson,
supra, 13 Cal.4th at p. 1211.)
31
Furthermore, as we have recited, the evidence against defendant was
overwhelming. (See Rundle, supra, 43 Cal.4th at p. 135 [“guilt phase
evidence against [the defendant] was overwhelming”].) This included his own
testimony that he stabbed N.W. and L.W. (which the trial court allowed to
remain standing during the guilt phase despite his refusal to answer
questions on cross-examination). In addition, L.W. and T.W. both testified.
The jury also saw video footage of defendant at the BART stations, some of
which showed defendant following the sisters onto the train at the Concord
station and again at the MacArthur station. The evidence was also
undisputed that after the stabbing, defendant left the scene, took off the
hoodie he was wearing, changed his pants, put the knife and his backpack in
different locations, and boarded a bus.
Finally, the trial court, early in the proceedings, admonished the jury
that it was not to consider whether defendant was present in court or not,
stating, “Ladies and gentlemen, Mr. Cowell is absent this morning. I want to
instruct you that you are not to speculate as to the reason and are not to let
his absence enter into your decision-making in this trial in any way.” We, of
course, must presume that the jurors understood and followed the court’s
instructions. (People v. Pearson (2013) 56 Cal.4th 393, 414.)
Instructional Error
Defendant also claims the trial court erred in connection with the jury
instructions on the lying-in-wait special circumstance. As we explain, his
argument is based on a misunderstanding of differences between first degree
murder, including lying-in-wait murder, and the special circumstance of lying
in wait.
We first discuss the instructions the court gave. With respect to
murder, the trial court instructed the jury, in pertinent part:
32
“The defendant is charged in count 1 with murder in violation of Penal
Code section 187. [¶] To prove that the defendant is guilty of this crime,
the People must prove that: One, the defendant committed an act that
caused the death of another person; and, two, when the defendant
acted, he had a state of mind called malice aforethought. [¶] There are
two kinds of malice aforethought, express malice and implied malice.
Proof of either is sufficient to establish the state of mind required for
murder. [¶] The defendant acted with express malice if he intended to
kill. The defendant acted with implied malice if, one, he intentionally
committed an act; two, the natural and probable consequences of the
act were dangerous to human life; three, at the time he acted, he knew
his act was dangerous to human life; and four, he deliberately acted
with conscious disregard for human life. [¶] Malice aforethought does
not require hatred or ill will toward the victim. It is a mental state
that must be formed before the act that causes death is committed. It
does not require deliberation or the passage of any particular period of
time. [¶] If you decide that the defendant committed murder, it is
murder of the second degree, unless the People have proved beyond a
reasonable doubt that it is murder of the first degree as defined in the
next instruction.” (See CALCRIM No. 520.)
“The defendant has been prosecuted for first degree murder under two
theories: One, the murder was willful, deliberate, and premeditated;
and two, the murder was committed while lying in wait or immediately
thereafter. [¶] Each theory of first degree murder has different
requirements, and I will instruct you on both. [¶] You may not find the
defendant guilty of first degree murder unless all of you agree that the
People have proved that the defendant committed murder. But all of
you do not need to agree on the same theory.
“The defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately and with premeditation.
The defendant acted willfully if he intended to kill. The defendant
acted deliberately if he carefully weighed the considerations for and
against his choice and, knowing the consequences, decided to kill. The
defendant acted with premeditation if he decided to kill before
completing the act that caused death.
“The length of time the person spends considering whether to kill does
not alone determine whether the killing is deliberate and premeditated.
The amount of time required for deliberation and premeditation may
33
vary from person to person according to the circumstances. A decision
to kill made rashly, impulsively or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated
decision to kill can be reached quickly. The test is the extent of the
reflection, not the length of time.
“The defendant is guilty of first degree murder if the People have
proved that the defendant murdered while lying in wait or immediately
thereafter. The defendant murdered by lying in wait if: One, he
concealed his purpose from the person killed; two, he waited and
watched for an opportunity to act; and, three, then, from a position of
advantage, he intended to and did make a surprise attack on the
person killed. [¶] The lying in wait does not need to continue for any
particular period of time, but its duration must be substantial enough
to show a state of mind equivalent to deliberation and premeditation.”
(See CALCRIM No. 521.)
As these instructions make clear, although willful, deliberate and
premeditated murder and lying-in-wait murder are both species of first
degree murder, there is a significant distinction between the two theories.
Whereas willful, deliberate and premeditated murder requires proof of a
specific mental state (People v. Nelson (2016) 1 Cal.5th 513, 544–545
(Nelson); People v. Townsel (2016) 63 Cal.4th 25, 62 (Townsel)), lying-in-wait
murder does not (People v. Flinner (2020) 10 Cal.5th 686, 748 (Flinner)
[“implied malice” suffices for conviction of lying-in-wait murder]; People v.
Streeter (2012) 54 Cal.4th 205, 246 [“lying-in-wait murder requires only a
wanton and reckless intent to inflict injury likely to cause death”], overruled
on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834).
The remainder of the elements of lying-in-wait murder—the
defendant’s concealing his purpose from the person killed, waiting and
watching for an opportunity to act, and from a position of advantage,
intending to and making a surprise attack on the person killed—pertain to
proving the physical act of killing while lying in wait or immediately
34
thereafter. While proof of lying in wait serves “ ‘as the functional equivalent
of proof of premeditation, deliberation, and intent to kill’ ” (People v.
Sandoval (2015) 62 Cal.4th 394, 416 (Sandoval)), it is the “functional
equivalent” in terms of heinousness, justifying classification of lying-in-wait
murder as first degree murder. (Ibid. [lying in wait “is a means of proving
first degree murder”].) The elements of the act of lying in wait, itself, are not
requirements of, and do not establish, a specific intent requirement. (See
Flinner, supra, 10 Cal.5th at p. 748; Streeter, supra, 54 Cal.4th at p. 246.)
Thus, these elements are not the same as the specific intent requirement of
intent to kill with willfulness, premeditation, and deliberation. (See Nelson,
supra, 1 Cal.5th at pp. 544–545; Townsel, supra, 63 Cal.4th at p. 62; see also
People v. Ruiz (1988) 44 Cal.3d 589, 614 (Ruiz) [rejecting argument that
“premeditation, deliberation and intent to kill must be independently proved”
to prove lying-in-wait murder].)
As for the special circumstance of lying in wait, the court instructed in
pertinent part:
“If you find the defendant guilty of first degree murder, you must also
decide whether the People have proved that the special circumstance is
true. [¶] The People have the burden of proving the special
circumstance beyond a reasonable doubt. If the People have not met
this burden, you must find the special circumstance has not been
proved.” (See CALCRIM NO. 700.)
“In order to prove the special circumstance of lying in wait, the People
must prove not only that the defendant did the act charged, but also
that he acted with a particular intent or mental state. The instruction
for the special circumstance explains the intent or mental state
required. [¶] An intent or mental state may be proved by
circumstantial evidence. [¶] Before you may rely on circumstantial
evidence to conclude that the defendant had the required intent or
mental state, you must be convinced that the People have proved each
fact essential to that conclusion beyond a reasonable doubt. [¶] Also,
before you may rely on circumstantial evidence to conclude that the
35
defendant had the required intent or mental state, you must be
convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the required intent
or mental state. If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those reasonable
conclusions supports the finding that the defendant did have the
required intent or mental state and another reasonable conclusion
supports a finding that the defendant did not have the required intent
or mental state, you must conclude that the required intent or mental
state was not proven by the circumstantial evidence. However, when
considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.” (See CALCRIM
No. 705.)
“The defendant is charged with the special circumstance of murder
committed while lying in wait in violation of Penal Code
section 190.2(a)(15). To prove that this special circumstance is true,
the People must prove that: One, the defendant intentionally killed
[N.W.]; and two, the defendant committed the murder by means of
lying in wait. [¶] A person commits a murder by means of lying in wait
if: He or she concealed his or her purpose from the person killed; two,
he or she waited and watched for an opportunity to act; three, then he
or she made a surprise attack on the person killed from a position of
advantage; and four, he or she intended to kill the person by taking the
person by surprise. [¶] The lying in wait does not need to continue for
any particular period of time, but its duration must be substantial and
must show a state of mind equivalent to deliberation or premeditation.
[¶] The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and knowing the consequences
decided to kill. The defendant acted with premeditation if he decided to
kill before committing the act that caused death. [¶] A person can
conceal his or her purpose even if the person killed is aware of the
person’s physical presence. [¶] The concealment can be accomplished
by ambush or some other secret plan.” (See CALCRIM No. 728.)
As these instructions reflect, the fundamental distinction between
lying-in-wait murder and the special circumstance of lying in wait is that,
unlike lying-in-wait murder, the special circumstance of lying in wait
requires “intent to kill.” (People v. Cage (2015) 62 Cal.4th 256, 278 (Cage)
36
[“ ‘the lying-in-wait special circumstance requires intent to kill, while lying-
in-wait murder requires only a wanton and reckless intent to inflict injury
likely to cause death’ ”]; see Flinner, supra, 10 Cal.5th at p. 748 [“[t]he lying-
in-wait special circumstance . . . requires the additional element that the
killing was intentional, not merely committed with implied malice”]; People v.
Casares (2016) 62 Cal.4th 808, 832–833 (Casares) [special circumstance
requires a “lethal” intent], disapproved on another ground as stated in People
v. Dalton (2019) 7 Cal.5th 166, 214; People v. Johnson (2016) 62 Cal.4th 600,
633 (Johnson) [evidence supported finding defendant acted “with the intent
that [the victim] would die”].)12 In all other respects, the elements that
12 Prior to March 2000, there was also a slight distinction between
lying-in-wait murder and the special circumstance of lying in wait in terms of
the timing between the act of lying in wait and the act of killing. As our
Supreme Court has explained,
“ ‘[I]n March 2000, the voters passed Proposition 18, which changed the
definition of the lying-in-wait special circumstance from a killing while
lying in wait to a killing by means of lying in wait, mirroring the
language of the first degree murder statute.’ (Johnson, supra,
62 Cal.4th at p. 634.) ‘[T]he voters’ purpose in amending the
lying-in-wait special circumstance was to eliminate the temporal
distinction between the special circumstance and lying-in-wait first
degree murder . . . thereby expand[ing] the class of cases in which the
special circumstance could be found true . . . .’ (Id. at p. 636.)
Nevertheless, we concluded that the amended lying-in-wait special
circumstance comports with the Eighth Amendment because it
‘adequately distinguishes itself from other murders and does so in
terms that are not so vague as to permit arbitrary determinations
regarding the truth of the special circumstance allegation.’ (Johnson,
at p. 636.) As we have long held, the ‘factual matrix’ presented by the
lying-in-wait special circumstance—an intentional murder coupled
with the elements of concealment, watching and waiting, and a
surprise attack from a position of advantage—sufficiently distinguish it
from ‘ “ordinary” premeditated murder’ [citation], such that it is
‘neither applicable to all murderers nor impermissibly vague’ (Johnson,
at p. 636). And, in Johnson, we reasoned that even if Proposition 18
37
establish the act of lying in wait—defendant’s concealing his purpose from
the person killed, waiting and watching for an opportunity to act, and from a
position of advantage, intending to and making a surprise attack on the
person killed—are the same for the crime of murder and the special
circumstance. (See Flinner, supra, 10 Cal.5th at p. 748 [“[t]he lying-in-wait
special circumstance [citation] includes the elements of first degree lying-in-
wait murder”].)
The trial court also gave the following introductory instruction based
on CALCRIM No. 252:
“The following crimes and allegations require a specific intent or
mental state: Murder, as charged in count 1; the special circumstance
of lying in wait, as alleged in Count 1; attempted murder, as charged in
Count 2; and the allegation of willful, deliberate, premeditated
attempted murder, as charged in Count 2. For you to find a person
guilty of these crimes or to find the allegations true, that person must
not only commit the prohibited act, but must do so with the specific
intent or mental state. The act and the specific intent or mental state
required are explained in the instruction for that crime or allegation.”
Thus, the trial court correctly instructed that only willful, deliberate,
and premeditated first degree murder, the special circumstance of lying in
wait, and attempted willful, deliberate, and premeditated murder required
proof of a specific intent.
On appeal, defendant takes issue with the court’s instruction based on
CALCRIM No. 627. This instruction is entitled “Hallucination: Effect on
had rendered the special circumstance identical to lying-in-wait first
degree murder, the special circumstance would pass constitutional
scrutiny because lying-in-wait murder ‘historically has been viewed as
“ ‘a particularly heinous and repugnant crime,’ ” ’ which ‘provides “a
rational basis for distinguishing those murderers who deserve to be
considered for the death penalty from those who do not.” ’ (Johnson, at
p. 637)” (Flinner, supra, 10 Cal.5th at pp. 751–752.)
38
Premeditation,” and is one of the instructions in CALCRIM Chapter I, which
includes instructions on “Impairment Defense.” The trial court gave the
following version of the instruction, modified to refer not only to
“hallucination” but also to “delusion”:
“A hallucination is a perception not based on objective reality. A
delusion is a belief not based on objective reality. In other words, a
person has a hallucination or delusion when that person believes that
he or she is seeing or hearing or otherwise perceiving something that is
not actually present or happening.
“You may consider evidence of hallucinations or delusions, if any, in
deciding whether the defendant acted with deliberation and
premeditation.
“The People have the burden of proving beyond a reasonable doubt, as
to Count 1, that the defendant acted with deliberation and
premeditation to prove that theory of first degree murder, and, as to
Count 2, the allegation that the attempted murder was done with
deliberation and premeditation. If the People have not met this
burden, you must not find the defendant guilty of first degree murder
on the theory that he acted with deliberation and premeditation and
you must not find true the allegation that the attempted murder was
done with deliberation and premeditation.”
Thus, as the instruction expressly stated, it was pertinent only to
willful, deliberate, and premeditated murder (and to attempted willful,
deliberate, and premeditated murder).
Prior to the giving of this instruction the following colloquy had
occurred between defense counsel and the court (italics added for emphasis):
“[Defense Counsel]: [T]he problem, as I see it with 627 as written by
the Court, is that you are only allowing them to consider hallucinations
and delusions as it applies to the premeditation and deliberation theory
of first degree murder and are precluding it from going towards the
premeditation and deliberation that’s required for the lying in wait
theory of first degree murder.
39
“[The Court]: Well, that’s—I did that because—well, number one as to
that theory of lying in wait, the mental state of deliberation and
premeditation is not required to be shown. Instead, only a duration
equivalent—only a duration sufficient to allow for deliberation or
premeditation, and I emphasize the disjunctive is required. And so I
purposely did not include lying in wait as something that could be
affected by delusion or hallucination.
“[Defense Counsel]: I don’t mean to split hairs . . . , but according to
521, just reading from it directly now, what requires to be shown is a
duration that’s substantial enough to show a state of mind equivalent
to deliberation and premeditation. [¶] . . . [¶] Or premeditation. And
I’m not taking issue with the ‘or’ or ‘and.’ What I’m taking issue is
when you take a look at the record that’s before this court, I don’t think
that it would be—my position to the jury is that I don’t think any
duration is long enough if you’ve got total delusional brain to show
premeditation and deliberation. And I think that—what this lying in
wait theory is getting at is there can be a period long enough to be the
equivalent of premeditation and deliberation. And if what’s going on in
your brain is what John Cowell has indicated is going on in his brain,
then he could have 10 days to think about these acts, but he’s not
formulating premeditation and deliberation. And I think that that’s
the state of the law, and I believe that the way the instructions are
being formulated, I’m being precluded from arguing that.
“[The Court]: Well, I disagree with you. I don’t think it is the law. I
think that for a theory of lying in wait that it’s not required that the
person who might qualify under the so-called Morales[13] factors of lying
in wait is required to have a mental state equivalent to either
premeditation or deliberation. All that is required is that there be a
concealment of purpose, a substantial period of watching and waiting
for an opportune time to act and immediately a surprising attack on an
unsuspecting victim from a position of advantage or surprise.”
As this exchange makes clear, the court and defense counsel were
discussing the instruction in reference to the first degree murder theories
13People v. Morales (1989) 48 Cal.3d 527, disapproved on another
ground as stated in People v. Williams (2010) 40 Cal.4th 405, 458–459..
40
being pursued by the prosecution, and defense counsel urged the court to
treat lying-in-wait murder as though it required premeditation, as did the
crimes of willful, deliberate, and premeditated first degree murder and
attempted willful, deliberate, and premeditated first degree murder. In other
words, counsel advanced the argument that the Supreme Court’s statement
that the requirements of the act of a lying in wait killing serve as “the
functional equivalent of proof of premeditation, deliberation, and intent to
kill” (Sandoval, supra, 62 Cal.4th at p. 416), means these requirements are
the same as premeditation, deliberation, and intent to kill.
As we have discussed, the trial court correctly ruled that defense
counsel was mistaken. Lying-in-wait murder does not require proof of
premeditation (or any other component of the mental state of willful,
deliberate, and premeditated first degree murder), but rather requires proof
only of implied malice. (Flinner, supra, 10 Cal.5th at p. 748; Streeter, supra,
54 Cal.4th at p. 246; see Ruiz, supra, 44 Cal.3d at p. 614.)
On appeal, defendant does not take issue with the court’s refusal to
modify CALCRIM No. 627 to make it pertinent to lying-in-wait murder.
Rather, he urges that the instruction should have been modified to make it
pertinent to the special circumstance of lying in wait because the special
circumstance, unlike lying-in-wait murder, requires a specific intent.
To begin with, since defendant did not raise this issue in the trial court
and did not ask that the instruction be so modified, he has forfeited the issue
on appeal. (See People v. Grimes (2016) 1 Cal.5th 698, 724; People v. Rangel
(2016) 62 Cal.4th 1192, 1223.)14
14 This is not a case where the instruction as given incorrectly stated
the law and thus defendant was excused from objecting and requesting that
the instruction be modified. (See People v. Cordova (2015) 62 Cal.4th 104,
149.)
41
But even if the issue was not forfeited, his argument on appeal is
meritless. He starts by asserting the “watching and waiting time”—i.e., the
elements of the act of lying in wait—must be “ ‘substantial’ ” to “ ‘distinguish
those cases in which a defendant acts insidiously from those in which he acts
out of rash impulse,’ ” quoting People v. Mendoza (2011) 52 Cal.4th 1056,
1073 (Mendoza).15 He then asserts, “[a]s such, the defendant must act with
at least a similar degree of consideration and planning as necessary to find
premeditation or deliberation”; “[i]ndeed, ‘[l]ying in wait is the functional
equivalent of proof of premeditation, deliberation, and intent to kill,’ ”
quoting People v. Stanley (1995) 10 Cal.4th 764, 794–795.) “Since symptoms
of mental illness such as delusions or hallucination are relevant to
determining whether a defendant actually premeditated or deliberated . . .
they are,” says defendant, “necessarily relevant to determine whether the
defendant acted with the equivalent mental state required for lying in wait.”
In other words, defendant is making the same argument on appeal that
he advanced in the trial court, namely that the required elements of the act of
lying in wait, itself, are the same as premeditation and deliberation. As we
have discussed, that is not the law. To the contrary, the required elements of
the act of lying in wait, itself, are the same for lying-in-wait murder (which
has no specific intent requirement) and the special circumstance of lying in
wait (which does require special intent, namely the intent to kill). Thus,
while these elements establish conduct so reprehensible it is properly
classified as first degree murder—and in this respect are the “functional
equivalent” of “proof of premeditation, deliberation, and intent to kill”—they
15As our high court has more recently stated, the act of lying in wait is
what distinguishes this form of murder from killings committed only on rash
impulse and appropriately makes lying-in-wait murder a species of first
degree murder. (See People v. Sandoval, supra, 62 Cal.4th at p. 416.)
42
are not the same as premeditation, deliberation, and intent to kill. (See Ruiz,
supra, 44 Cal.3d at p. 614.) Since CALCRIM No. 627 pertains only to
“premeditation,” counsel’s argument that even if the instruction is not
pertinent to lying-in-wait murder, it is pertinent to the special circumstance
of lying in wait, misses the mark.
Defendant also points out that the special circumstance of lying in wait
requires intent to kill. However, intent to kill is not the same as willful,
premeditated, and deliberate intent to kill. (See Mendoza, supra, 52 Cal.4th
at p. 1069 [“ ‘[a] verdict of deliberate and premeditated first degree murder
requires more than a showing of intent to kill’ ”], quoting People v. Sanchez
(2001) 26 Cal.4th 834, 849; People v. Chiu (2014) 59 Cal.4th 155, 166 [“First
degree murder, like second degree murder, is the unlawful killing of a human
being with malice aforethought, but has the additional elements of
willfulness, premeditation, and deliberation, which trigger a heightened
penalty.”], superseded on other grounds as stated in People v. Lewis (2021)
11 Cal.5th 952, 959, fn. 3.)
In sum, CALCRIM No. 627 is an instruction that pertains to willful,
deliberate, and premeditated first degree murder (or attempted willful,
deliberate and premeditated first degree murder). It does not pertain to
lying-in-wait murder, let alone the special circumstance of lying in wait.
Defendant next contends the trial court’s asserted error in refusing to
modify CALCRIM No. 627 to pertain to the special circumstance of lying in
wait was “reinforced” by the court’s giving of CALCRIM No. 3428. Since the
trial court, as we have explained, did not err in refusing to modify CALCRIM
No. 627, defendant’s claim of “reinforcement” goes nowhere.
CALCRIM No. 3428 is entitled “Mental Impairment: Defense to
Specific Intent or Mental State (Pen. Code, § 28).” The trial court instructed
43
the jury as follows and gave this instruction immediately following the
CALCRIM No. 627 instruction:
“You have heard evidence that the defendant may have suffered from a
mental disease or disorder. You may consider this evidence only for the
limited purpose of deciding whether, at the time of the charged crime,
the defendant acted with the intent or mental state required for that
crime.
“The People have the burden of proving beyond a reasonable doubt that
the defendant acted with the required intent or mental state,
specifically: deliberately and with premeditation. If the People have
not met this burden, as to Count 1, you must find the theory that the
defendant acted deliberately and with premeditation has not been
proved and, as to Count 2, you must find the allegation that the
attempted murder was done with deliberation and premeditation has
not been proved.”
Prior to the court’s giving this instruction, defendant objected in
writing as follows: “The defense objects to the pinpoint addition (middle
paragraph) included in this instruction. This instruction appears to elucidate
for the jury the difference between diminished capacity and diminished
actuality. Because both of the defense experts testified consistently with the
law, there is no need for this pinpoint instruction. Including this instruction
risks confusing the issues for the jury. [¶] The defense requests that the last
paragraph in this instruction include the following language: ‘The People
have the burden of proving beyond a reasonable doubt that the defendant
acted with the required intent or mental state, specifically: the intent to
kill. . . .’ (People v. Ocegueda (2016) 247 Cal.App.4th 1393.)”
At the conference on instructions the following colloquy took place:
“[The Court]: On 3428, the request is to include intent to kill. In this
case, I find no substantial evidence that would be required for the
giving of an instruction that John Cowell’s mental state interfered or
diminished in any respect his capacity to intend to kill. And to the
44
contrary, it would appear that they would accept that he was deluded
at the time; that his delusion drove him to an intent to kill, so I will
decline to include intent to kill in 3428.
[¶] . . . [¶]
“[Defense Counsel]: My understanding of the testimony given by
Mr. Cowell was that he believed that the women were wearing skin
suits, and I believe that there’s at least some implication that the
assault that took place on the BART platform was an effort to remove
the skin suit. And if that was the case, then I believe that there
wouldn’t be an intent to kill because his delusion led him to believe that
he wasn’t killing, but that he was removing a skin suit. And so for that
reason, I do ask the Court to give 3428 towards intent to kill.
“[The Court]: Well, I think that inference, if it rises to that, is belied by
his testimony that he intended to prevent them from kidnapping his
grandmother, so I will decline to include intent to kill in 3428.”
In his briefing on appeal, defendant does not address the trial court’s
reason for refusing to add “intent to kill” to the CALCRIM No. 3428
instruction. He has therefore forfeited any argument that the trial court
erred in refusing to modify the instruction as requested. (See Thompson v.
County of Los Angeles (2006) 142 Cal.App.4th 154, 171 [appellant forfeited
argument that evidence was improperly excluded by failing to address trial
court’s reason for refusing to admit it].) Indeed, as we have recited, he argues
only that the CALCRIM No. 3428 instruction “reinforced” the asserted error
in the CALCRIM No. 627 instruction. However, as we have explained, the
CALCRIM No. 627 instruction correctly stated the law.
We further observe that, even if defendant had, on appeal, challenged
the trial court’s ruling as to the CALCRIM No. 3428 instruction, and even if
the court erred in not including “specific intent” in the instruction, any such
error was harmless under the reasoning of Townsel, supra, 63 Cal.4th 25,
which defendant cites for the proposition that evidence of mental disease or
45
defect is relevant not only to premeditation and deliberation, but “any other
specific intent,” including any specific intent required by any special
circumstance.
In Townsel, the trial court gave the analogous CALJIC instruction, and
instructed the jury it could consider evidence that the defendant suffered
from a “mental defect or mental disorder” at the time of the charged murders,
and it could consider such evidence “solely for the purpose of determining
whether or not [the defendant] actually formed the mental state which is an
element” of the charged crimes. (Townsel, supra, 63 Cal.4th at p. 59.) The
defendant claimed the instruction precluded the jury from considering the
evidence in connection with whether he acted with premeditation and
deliberation, and in connection with whether he formed the specific mental
states required to find him guilty of the crime of dissuading a witness and to
find true the witness-killing special circumstance. (Id. at pp. 57–59.)
Our Supreme Court concluded the instruction given did not preclude
consideration of the mental state evidence in connection with any of the
elements of first degree murder, including premeditation and deliberation.
(Townsel, supra, 63 Cal.4th at pp. 62–63.) However, it agreed the instruction
implicitly barred the jury from considering the evidence in connection with
other mental state issues, including the intent required to find the defendant
guilty of dissuading a witness and required to find true the witness-killing
special circumstance and concluded this constituted instructional error. (Id.
at p. 63.)
The high court went on to consider whether the error was harmless,
given that the jury found the defendant guilty of premeditated first degree
murder, and concluded it was not. (Townsel, supra, 63 Cal.4th at p. 64.) The
court explained that premeditation and deliberation differed from the specific
46
mental states required for the crime of dissuading a witness and for the
witness-killing special circumstance. “Specifically, with respect to the
dissuading charge, the jury was instructed, as relevant to mental state, that
it had to find defendant had ‘the specific intent to prevent or dissuade a
witness or victim from giving testimony at a trial proceeding or inquiry
authorized by the law.’ With respect to the mental state required for the
special circumstance, the jury was instructed it had to find ‘the witness was
intentionally killed for the purpose of preventing her testimony in a criminal
proceeding.’ These mental states entail knowledge and purpose beyond an
intent to kill . . . .”16 (Ibid., italics added.)
That, however, is not the case with respect to the special circumstance
of lying in wait. As we have discussed, the only requisite mental state for
this special circumstance is “intent to kill.” (See Flinner, supra, 10 Cal.5th at
p. 748; Cage, supra, 62 Cal.4th at p. 278.) Accordingly, the reason the
Supreme Court found the error in Townsel was not harmless does not exist
CALCRIM No. 725 spells out the requirements of the witness-
16
murder special circumstance as follows:
“The defendant is charged with the special circumstance of murder of a
witness [in violation of Penal Code section 190.2(a)(10)]. [¶] To prove
that this special circumstance is true, the People must prove that:
[¶] 1. The defendant intended to kill [insert name of decedent];
[¶] 2. [Insert name of decedent] was a witness to a crime; [¶] 3. The
killing was not committed during the commission [or attempted
commission] of the crime to which [insert name of decedent] was a
witness; [¶] AND [¶] 4. The defendant intended that [insert name of
decedent] be killed (to prevent (him/her) from testifying in a
(criminal/[or] juvenile) proceeding/[or] in retaliation for (his/her)
testimony in a (criminal/[or]juvenile) proceeding). [¶] [A killing is
committed during the commission [or attempted commission] of a crime
if the killing and the crime are part of one continuous transaction. The
continuous transaction may occur over a period of time or in more than
one location].”
47
here. And the fact the jury found defendant guilty of attempted murder and
found true the allegation that he committed the attempted murder willfully
and with premeditation and deliberation, demonstrates that any error in not
including “intent to kill” and not referencing the special circumstance of lying
in wait in the CALCRIM No. 3428 instruction was harmless, as it is not
reasonably probable a more favorable result would have been reached had
the asserted error not occurred. (See People v. Ocegueda, supra,
247 Cal.App.4th at p. 1407 [whether error in limiting jury’s consideration of
mental disability evidence was prejudicial is determined under Watson17
standard].)
In finding defendant guilty of attempted murder and finding true the
special circumstance that he committed the attempted murder willfully and
with premeditation and deliberation, the jury necessarily found that he acted
with intent to kill; indeed, found he acted with a heightened intent to kill.
Thus, “ ‘the factual question posed by [an] omitted instruction was
necessarily resolved adversely to the defendant under other, properly given
instructions. In such cases the issue should not be deemed to have been
removed from the jury’s consideration since it has been resolved in another
context, and there can be no prejudice to the defendant since the evidence
that would support a finding [favorable to the defendant] . . . has been
rejected by the jury.’ ” (People v. Wright (2006) 40 Cal.4th 81, 98; People v.
Gana (2015) 236 Cal.App.4th 598, 611 [“By its verdicts and findings the jury
clearly ‘rejected defendant’s [mental state] defense’ [citation] in another
context and thus the refusal to instruct on unconsciousness was harmless
error.”].)
17 Watson, supra, 46 Cal.2d 818.
48
Sanity Phase Issues
Striking Defendant’s Testimony
Defendant maintains the trial court erred in striking his testimony for
purposes of the sanity phase of the trial and, as a consequence, impinged on
his due process right to present a defense. Specifically, defendant asserts the
“court’s decision was an abuse of discretion because the record shows the
prosecution had more than adequate opportunity to cross-examine [him] on
issues directly related to the sanity phase.”
As discussed above, defendant testified on his own behalf during the
guilt phase. However, he refused to answer questions and became hostile
and disruptive during cross-examination by the prosecutor, prompting the
trial court to have him removed from the court. Thereafter, the court told
defendant several times that, having testified on his own behalf, the
prosecution was entitled to conduct cross-examination, and if he refused to
allow the prosecutor to complete his cross-examination, the court would
consider imposing “sanctions.” Defendant refused to retake the stand.
Eventually, the court ordered that defendant be brought to court, and
again asked if he wanted to complete cross-examination. Defendant again
declined.
The court then asked counsel what “sanction[s]” the court should
impose, and specifically, whether defendant’s testimony should be stricken in
whole or in part. Defense counsel argued that “three hours of cross-
examination [was] sufficient for the District Attorney to have gotten many
points,” pointing out the prosecutor had “talked about the criminal priors;
[and] he got to go into mental health.”
The court responded, “I don’t think the prosecution was particularly
damaged in the guilt phase of the trial by Mr. Cowell not allowing himself to
49
be cross-examined in relation to the concealment measures that he took,
which are shown on the video. However, I think [those measures go] directly
to the issues that we will face in the sanity phase which is whether he
understood the nature and quality of his acts; or if he did, whether he knew
they were legally or morally wrong, and that concealment evidence goes
directly to those issues.” The court therefore proposed “striking [defendant’s]
testimony . . . for the . . . sanity phase.”
Defense counsel argued this was unwarranted—the prosecutor, having
“tactically decided to rattle” defendant on cross-examination and having
received the “desired outcome of getting the guy dragged out of the courtroom
while he was cursing,” “now we’re going to strike his testimony?” Counsel
could not “imagine this jury having this removed from their consideration in
this circumstance.”
The prosecution agreed with the court’s suggested sanction.
The court took the matter under submission, allowing defendant the
opportunity during the sanity phase to complete cross-examination.
However, defendant continued to refuse to retake the stand.
Rejecting continued arguments by the defense that striking defendant’s
testimony was an excessive sanction, the court struck his testimony for
purposes of the sanity phase, explaining, “I think that the District Attorney
was foreclosed from confronting the defendant with regard to the two crucial
issues under the M’Naghten Rule as to whether Mr. Cowell understood the
nature and quality of his acts or understood the legal and moral quality of
those acts. . . . [¶] The reason I thought that the District Attorney was
foreclosed from crucial testimony was that from the tape Mr. Cowell took
many measures to conceal his identity and apparently acted in a way that
50
showed a total awareness of his surroundings.” Yet, the prosecution had not
been able to question defendant about what appeared on the tape.
As we have discussed above, “the right to introduce evidence
necessarily implicates the responsibility to permit [that evidence] to be fairly
tested.” (Fost, supra, 80 Cal.App.4th at p. 736.) And “ ‘a defendant who
takes the stand in his own behalf cannot then claim the privilege against
cross-examination on matters reasonably related to the subject matter of his
direct examination.’ ” (Jenkins v. Anderson, supra, 447 U.S. at p. 236, fn. 3.)
“Where a witness refuses to submit to cross-examination, or is
unavailable for that purpose, the conventional remedy is to exclude the
witness’s testimony on direct. As stated in Witkin: ‘In either a civil or
criminal case, where a party is deprived of the benefits of cross-examination
of a witness by refusal of the witness to answer, the trial court may strike out
the direct examination. [Citations.]’ (3 Witkin, Cal. Evidence [(3d ed. 1986)
Presentation at Trial] § 1877, p. 1831.) . . . Striking a witness’s entire
testimony is, of course, a ‘drastic solution,’ only to be employed ‘after less
severe means are considered.’ (Reynolds, supra, 152 Cal.App.3d at pp. 47–
48.)” (Fost, supra, 80 Cal.App.4th at pp. 735–736.)
In deciding whether to strike testimony, the trial court should “consider
first whether the witness has refused to submit to cross-examination
altogether, rather than refused to answer only one or more questions. In the
latter circumstance, . . . the witness’s direct testimony need not be stricken in
its entirety in every case, and the court should consider both the motive for
the refusal to answer and the materiality of the answer. . . . [T]he court
[should also] consider solutions short of striking a defendant’s entire
testimony, such as striking only a portion of the testimony, or instructing the
jurors that they may take into account the refusal to answer when assessing
51
the defendant’s credibility.” (People v. Brooks (2017) 3 Cal.5th 1, 30, citing
Reynolds, supra, 152 Cal.App.3d at pp. 47–48.)
We review the trial court’s decision to strike all or part of a defendant’s
testimony for abuse of discretion. (Reynolds, supra, 152 Cal.App.3d at p. 47.)
Here, the court did not strike defendant’s testimony for all purposes.
Rather, the court allowed the jury to consider defendant’s testimony during
the guilt phase.18
The court also gave careful consideration as to whether the testimony
should be stricken for purposes of the sanity phase, and its conclusion that
the prosecution had been wholly foreclosed from cross-examining defendant
on important evidence, namely the surveillance footage, pertaining to two
important issues on sanity, is supported by the record. While defendant
continues to insist the prosecutor “was able to ask . . . whether [defendant]
understood the nature of his acts, what his plans where [sic], what his
motivations were, and whether he believed he was morally justified in taking
those actions,” that does not alter the fact the prosecutor was prevented from
asking defendant about significant evidence.
In addition, the court, having observed defendant for weeks during
trial, was clearly in a position to find that he was deliberately attempting to
subvert the fact-finding process—that “his motivation [was] to get his story
out there, but not to subject himself to that type of cross-examination, which
would detract from the force of that story.”
18 The court also instructed the jury, “If the defendant failed in his
testimony to explain or deny evidence against him, and if he could reasonably
be expected to have done so based on what he knew, you may consider his
failure to explain or deny in evaluating that evidence. Any such failure is not
enough by itself to prove guilt. The People must still prove the defendant
guilty beyond a reasonable doubt.” (See CALCRIM No. 361.) Defendant
makes no argument on appeal that this instruction was improper.
52
In sum, defendant has not demonstrated an abuse of discretion by the
trial court in striking his testimony for purposes of the sanity phase.
Exclusion of Expert Testimony
Defendant also maintains the trial court prejudicially erred in
excluding the proffered testimony of Dr. McKinzey from the sanity phase.
On the eve of the sanity phase, defense counsel informed the court that
she wanted to call McKinzey, a psychologist who was no longer licensed, as
an expert to opine on defendant’s sanity. The prosecution objected, stating
defense counsel had given McKinzey copies of defendant’s stricken testimony,
and this was improper and appeared to be “an effort to back door [defendant’s
testimony] in or create an opinion that you otherwise would not be able to
get.”
Defense counsel responded that many months prior, the trial court had
appointed Dr. Victoria Campagna pursuant to section 1027 to evaluate
defendant for his not guilty by reason of insanity plea. However, when Dr.
Campagna got the section 1027 appointment, she “initially . . . thought it was
a [section] 1368 appointment.” When informed it was for a section 1027
evaluation, she told counsel she was unable to “render an opinion.”
At some point, defense counsel gave Dr. Campagna a transcript of
defendant’s testimony. A week before the sanity phase was to start,
Dr. Campagna contacted counsel and stated she was still unable to render an
opinion, “in part because of her inexperience.” Dr. Campagna also told
counsel she had “been paying Dr. McKinzey . . . her court-appointed salary to
review all these records” since November. Dr. McKinzey had “created a
preces [sic], which . . . is a 30-page document . . . so that he could advise his
colleague, Campagna, about rendering an opinion.” However, Dr. Campagna
once again told counsel she could not “render an opinion, but McKinzey, who
53
is much more experienced and who I’ve been relying on, I’ve been paying to
do all the records review for me, he can render an opinion.”
Counsel called Dr. McKinzey, who told her he thought defendant was
legally insane. Counsel then gave Dr. McKinzey certain “jail calls” and told
him to “review this stuff” to see if that changed his opinion. Dr. McKinzey
called counsel, stated he had “reviewed the jail calls; . . . the videos; I’ve been
reviewing all this stuff for Vicki Campagna, and Vicki Campagna has been
paying me to review it, so he’s read the 9- to 10,000 pages,” and his opinion
had not changed. Dr. McKinzey then sent counsel a one-page document,
which was an “outline; . . . notes for his testimony.” Counsel, in turn,
forwarded the outline to the prosecutor, along with Dr. McKinzey’s CV and
the 30-page precis.
The court inquired if Dr. McKinzey had stated whether defendant
“understood the nature and quality of his acts?” Defense counsel replied,
“quoting directly now from a portion” of Dr. McKinzey’s notes, that
“ ‘considering the totality of the evidence, defendant was insane.’ ” In that
regard, Dr. McKinzey made three points: “One, the patient had a . . . 14-year
history of major mental diagnoses; two, the stabbing was senseless and
unprovoked, done under the security camera as a result of a delusion; three,
he knew the stabbing was legally wrong, (signs of guilty knowledge), but
offers a moral defense.”
After clarifying that Dr. McKinzey was unlicensed, the court stated
that because section 1027 requires the court to appoint “two psychiatrists or
licensed psychologists who have a doctoral degree in psychology,” it was
“concerned . . . there seems to be a substitution for a licensed psychologist
with an unlicensed psychologist to render an opinion.” Defense counsel
responded, “I wouldn’t call it a ‘substitution.’ I mean, this is just us having a
54
defense-retained expert at this point.” The court further observed, “nobody
was ever told by way of discovery or anything else that after Mr. Cowell
refused to see Dr. Campagna, that Dr. Campagna was still, if I can put it this
way, retaining her right to offer an opinion even after Mr. Cowell’s refusal to
see her by farming out the materials that were furnished.” It further pointed
out “the time limits of all of this. We’re to start with the sanity trial at 1:30
this afternoon.”
Even more importantly, the court was concerned that Dr. McKinzey
was “basing his opinion from what I hear from you on the morality prong of
M’Naghten. That is in turn based on Mr. Cowell’s testimony that he believed
his actions were morally justified because he had a right to kill persons who
had kidnapped his grandmother. It appears to me that Dr. McKinzey
misunderstands California law. . . . It appears to me that Dr. McKinzey’s
opinion is based on the moral standards that were peculiar to the accused.”
Defense counsel made no offer of proof to the contrary.
The court ruled defendant could not call Dr. McKinzey.
The sum total of defendant’s argument on appeal as to why the trial
court purportedly abused its discretion in excluding Dr. McKinzey’s
testimony is a single paragraph, stating as follows:
“As an initial matter, if the court believed Dr. McKinzey’s opinion was
based on an incorrect legal standard, it should have conducted an
Evidence Code section 402 hearing to determine conclusively whether it
was an admissible opinion. The court relied only on trial counsel’s
hastily assembled notes of the conversation, and did not review the 30
page precis Dr. McKinzey had prepared. To exclude critical defense
evidence on such an [sic] flimsy evidentiary record is an abuse of
discretion.”
To begin with, a trial court is not obligated to hold a foundational
hearing sua sponte. (See People v. Williams (1997) 16 Cal.4th 153, 196.)
55
Thus, defense counsel having never requested an Evidence Code section 402
hearing, defendant has forfeited any argument on appeal that one was
required. (See People v. Lazarus (2015) 238 Cal.App.4th 734, 787 [failure to
request prong-three Kelly19 hearing or section 402 hearing forfeited issue on
appeal].)
Furthermore, a trial court “has broad discretion in deciding whether to
admit or exclude expert testimony (People v. Bui (2001) 86 Cal.App.4th 1187,
1196), and its decision as to whether expert testimony meets the standard for
admissibility is subject to review for abuse of discretion. (People v. Alcala
(1992) 4 Cal.4th 742, 788–789; see People v. Lindberg (2008) 45 Cal.4th 1,
45.)” (People v. McDowell (2012) 54 Cal.4th 395, 426.)
Here, the trial court identified numerous reasons for excluding
Dr. McKinzey’s testimony: Defendant’s failure to advise the court of
Dr. Campagna’s reluctance to provide an opinion and 11th-hour request to
replace her with Dr. McKinzey. Dr. McKinzey’s consideration of defendant’s
stricken testimony. Dr. McKinzey’s lack of qualification under the statute
given his licensing status. And his apparent misunderstanding of California
law.
The latter point was deemed by the court to be particularly significant,
and appropriately so. (See Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 775–776 (Sargon) [“the substantive law . . .
is relevant to help define the type of matter on which an expert may
reasonably rely”].) A person is legally insane when due to a mental disease or
defect, the person was “ ‘incapable of knowing or understanding the nature
and quality of his act or incapable of distinguishing right from wrong at the
People v. Kelly (1976) 17 Cal.3d 24, abrogated by statute on another
19
ground as stated in People v. Williamson (2004) 33 Cal.4th 821, 845–848.
56
time of the commission of the offense.’ ” (People v. Coddington (2000)
23 Cal.4th 529, 608 (Coddington), overruled on other grounds as stated in
Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The concept of “
‘wrong’ ” includes both legal and moral wrong; thus, a person “ ‘who is
incapable of distinguishing what is morally right from what is morally wrong
is insane, even though he may understand the act is unlawful.’ ” (Coddington
at p. 608.) Morality in the context of the insanity defense means generally
accepted moral standards, and not distorted standards devised by the
accused. (Id. at pp. 608–609.) Thus, a “defendant is sane if he knows his act
violates generally accepted standards of moral obligation whatever his own
moral evaluation may be.” (People v. Stress (1988) 205 Cal.App.3d 1259,
1274.) While a defendant’s perspective of the morality of his action(s) “need
not reflect the principles of a recognized religion and does not demand belief
in a God or other supreme being, it does require a sincerely held belief
grounded in generally accepted ethical or moral principles derived from an
external source. ‘[M]oral obligation in the context of the insanity defense
means generally accepted moral standards and not those standards peculiar
to the accused.’ [Citation.]”20 (Coddington, at p. 608.)
20 “ ‘ “For example, if under the influence of his delusion [the defendant]
supposes another man to be in the act of attempting to take away his life, and
he kills that man, as he supposes, in self-defence [sic], he would be exempt
from punishment. If his delusion was that the deceased had inflicted a
serious injury to his character and fortune, and he killed him in revenge for
such supposed injury, he would be liable to punishment.” ’ (People v. Rittger
[(1960) 54 Cal.2d 720,] 732; see Finger v. State (2001) 117 Nev. 548, 576 [27
P.3d 66] [‘Persons suffering from a delusion that someone is shooting at
them, so they shot back in self-defense are insane under M'Naghten. Persons
who are paranoid and believe that the victim is going to get them some time
in the future, so they hunt down the victim first, are not’].)” (People v.
Leeds (2015) 240 Cal.App.4th 822, 829.)
57
Thus, whether a defendant holds a delusional but sincere belief that his
or her actions are morally correct requires both an examination of what the
defendant was actually thinking at the time he committed the charged crimes
and a determination as to whether his view of the morality of his actions was
based on a warped construct of his own making or was grounded in “generally
accepted ethical or moral principles derived from an external source.”
(Coddington, supra, 23 Cal.4th at p. 608.) However, it did not appear that
McKinzey’s proffered opinion took into account the latter determination.
Accordingly, on this record, it cannot be said that the trial court abused
its discretion in excluding Dr. McKinzey’s testimony.21
Directed Verdict on Sanity
Defendant maintains “the sanity verdict must be reversed because the
court directed the verdict while the jury was deliberating, denying [him] his
constitutional right to due process.”
After the jury found defendant guilty as charged,22 the court proceeded
to the sanity phase. Defense counsel advised the court that given the
exclusion of Dr. McKinzey’s testimony, the defense had no additional
evidence. The court observed that defendant could choose to retake the
21 While defendant acknowledges we generally review a trial court’s
decision on expert testimony for abuse of discretion (see Sargon, supra,
55 Cal.4th at p. 773), he asserts Dr. McKinzey’s testimony was so probative
to his defense that that outweighed any other factor, and its exclusion
violated a panoply of constitutional rights, including to present a defense and
to due process. However, as we have discussed, Dr. McKinzey’s proffered
testimony was of no probative value given his apparent misunderstanding of
the controlling law.
22The jury found the allegation that defendant personally inflicted
great bodily injury upon L.W. not true.
58
stand, but if he did not, it would “grant the People’s motion for a directed
verdict of sanity.”
After the court instructed the jury, defense counsel told the court
defendant would not be testifying. The prosecutor, in turn, told the court he
had not made a motion for a directed verdict.
The court then proceeded with closing arguments, and on their
completion on a Thursday afternoon, the jury retired to deliberate. One day
later, on a Friday, the jury asked the court two questions: (1) “ ‘[W]ould it
make a person insane if they understand an act to be legally wrong but not
morally wrong?’ ” and (2) “ ‘[I]s there a difference between knowing the
quality of an act and understanding the quality of an act?’ ”
The following Monday, the court advised the parties that the Governor
had called for home isolation of all Californians over the age of 6523 and the
presiding judge of the court had issued a similar directive. Four members of
the jury were over the age of 65.
The court then announced it intended, on its own motion, to direct a
verdict of sanity and excuse the jurors on the ground no evidence had been
presented that, at the time of the crimes, defendant did not know the nature
and quality of his acts or believed that those acts were, under the applicable
law, legally or morally justified. Defense counsel did not take issue with the
court’s assessment of the evidence, but argued that given that the jury had
deliberated for over a day and had asked several questions, the court should
23 On March 4, 2020, the Governor declared a state of emergency due
to the global COVID-19 outbreak. (E.P. v. Superior Court (2020)
59 Cal.App.5th 52, 54.) Two weeks later, the Governor declared a shelter-in-
place, asking anyone age 65 and older to stay at home.
( [as of Nov. 10, 2022].)
59
“mistry the sanity phase.” After further argument by counsel, the court
directed a sanity verdict.
“A plea of not guilty by reason of insanity ‘is a statutory defense that
does not implicate guilt or innocence but, instead, determines “whether the
accused shall be punished for the guilt which has already been established.”
[Citation.]’ (People v. Hernandez (2000) 22 Cal.4th 512, 528 (conc. opn. of
Brown, J.).)” (People v. Blakely (2014) 230 Cal.App.4th 771, 775 (Blakely).)
“ ‘ “The test of legal insanity in California is the rule in M’Naghten’s
Case (1843) 10 Clark & Fin.200, 210, as adopted by the electorate in June
1982 with the passage of Proposition 8. That measure added section 25,
subdivision (b) . . . , which provides: ‘In any criminal proceeding . . . in which
a plea of not guilty by reason of insanity is entered, this defense shall be
found by the trier of fact only when the accused person proves by a
preponderance of the evidence that 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.’ Despite the
use of the conjunctive ‘and’ instead of M’Naghten’s disjunctive ‘or,’ this court
has interpreted the statute as recognizing two distinct and independent bases
on which a verdict of not guilty by reason of insanity might be returned.”
[Citation.] “The incapacity must be based on a mental disease or defect even
though that requirement is not specifically mentioned in [Penal Code
section] 25, subd[ivision] (b).” ’ ([People v.] Severance [(2006)]
138 Cal.App.4th 305, 321–322 [(Severance)].)” (Blakely, supra,
230 Cal.App.4th at p. 774.)
“Because a plea of insanity is an affirmative defense in which the
defendant has the burden of proof, the court may, through the grant of a
directed verdict, ‘remove the issue of sanity from the jury when the defendant
60
has failed to present evidence sufficient to support the special plea.’ (People
v. Ceja (2003) 106 Cal.App.4th 1071, 1089; see Severance, supra,
138 Cal.App.4th at p. 324 [noting the court properly directed a verdict of
sanity because even if credited and viewed in the light most favorable to the
defendant, he failed to proffer sufficient evidence of legal insanity, including
evidence providing a substantial basis for the jury to find that when he
committed the crimes he believed his actions were morally acceptable].)”
(Blakely, supra, 230 Cal.App.4th at p. 775.)
A directed verdict on sanity “ ‘may be granted “only when, disregarding
conflicting evidence and giving to plaintiff’s evidence all the value to which it
is legally entitled, herein indulging in every legitimate inference which may
be drawn from that evidence, the result is a determination that there is no
evidence of sufficient substantiality to support a verdict in favor of the
plaintiff if such a verdict were given.” [Citations.] Unless it can be said as a
matter of law, that, when so considered, no other reasonable conclusion is
legally deducible from the evidence, and that any other holding would be so
lacking in evidentiary support that a reviewing court would be impelled to
reverse it upon appeal, or the trial court to set it aside as a matter of law, the
trial court is not justified in taking the case from the jury. [Citation.] A
motion for a directed verdict “is in the nature of a demurrer to the evidence,
and is governed by practically the same rules, and concedes as true the
evidence on behalf of the adverse party, with all fair and reasonable
inferences to be deduced therefrom. . . . The power of a court in passing upon
such motions is strictly limited. It has no power to weigh the evidence, but is
bound to view it in the most favorable light in support of the verdict. . . .”
[Citation.] In other words, the function of the trial court on a motion for a
directed verdict is analogous to and practically the same as that of a
61
reviewing court in determining, on appeal, whether there is evidence in the
record of sufficient substance to support a verdict. Although the trial court
may weigh the evidence and judge . . . the credibility of the witnesses on a
motion for a new trial, it may not do so on a motion for a directed verdict.’ ”
(Blakely, supra, 230 Cal.App.4th at pp. 775–776.)
Thus, while we apply the substantial evidence standard of review, in
doing so “ ‘we do not look for substantial evidence in support of the trial
court’s ruling that defendant was sane; rather, we look for substantial
evidence from which the jury reasonably could have found defendant was not
sane. If we find such evidence, then a directed verdict of sanity was
improper.’ (Severance, supra, 138 Cal.App.4th at p. 320.)” (Blakely, supra,
230 Cal.App.4th at p. 776.)
Defendant first claims the trial court erred procedurally by directing a
verdict after the jury commenced deliberations. He asserts that “[o]nce an
issue of fact such as sanity must be decided” and the jury has retired to
deliberate, “ ‘the jury alone possess[s] the power to pass upon [it].’ ” Or stated
another way, defendant maintains that a “directed verdict may only be made
prior to deliberation.”
Defendant concedes he has been “unable to find any California
authority” supporting this view. So, he posits that the issue is one of “first
impression,” characterizing the question as whether, “[o]nce an issue of fact
such as sanity must be decided, ‘the jury alone possesse[s] the power to pass
upon [it].’ ”
Putting aside for the moment whether there was any substantial
evidence raising a triable issue of fact as to sanity, if the record supports a
directed verdict, there is no rational reason why it makes any difference
whether the court grants such a motion immediately at the close of evidence,
62
after instructing the jury, or after the jury has retired but before it reaches a
verdict. A record either does, or does not, contain substantial evidence
raising a triable issue for the jury to decide, and if it does not, there is no
issue properly before the jury, and we see no reason why a nonsuit cannot
properly be granted to bring an end to a legally meaningless exercise. (See
Severance, supra, 138 Cal.App.4th at p. 314 [“trial courts have the inherent
power to remove an insanity defense from the jury when there is no evidence
to support it and in such a circumstance ‘there is no constitutional infirmity,
either under the California Constitution or the United States Constitution,
for a judge to remove the issue of sanity from the jury’ ”], quoting Ceja, supra,
106 Cal.App.4th at p. 1089.)24
For the first time in his reply brief, defendant asserts section 1140
precludes discharging a jury “ ‘unless it has rendered a verdict in open court
or has declared an inability to agree.’ ” Since he did not advance this
argument in either the trial court or in his opening brief, this issue was
neither preserved for appeal nor has it been timely raised on appeal. (See
People v. Tully (2012) 54 Cal.4th 952, 1075 [“arguments made for the first
time in a reply brief will not be entertained because of the unfairness to the
other party”].) In any case, as defendant acknowledges, no authority
supports the proposition that section 1140 limits the time to grant a directed
24 Defendant also asserts the trial court “was reluctant” to direct a
verdict on its own motion, which indicated “lingering doubt” as to the
propriety of doing so. Not only is this speculation, but the record reflects that
from the moment the court was told no further evidence would be presented
by the defense during the sanity phase, it was of the view there was no
triable issue as to sanity. And even if the court did harbor any “doubt,” that
is irrelevant to both defendant’s procedural challenge to the directed verdict
and whether the record does, or does not, contain substantial evidence raising
a triable issue as to sanity.
63
verdict. Indeed, section 1140 provides that “[e]xcept as provided by law, the
jury cannot be discharged after the cause is submitted to them until they
have agreed upon their verdict and rendered it in open court, unless by
consent of both parties, entered upon the minutes, or unless, at the expiration
of such time as the court may deem proper, it satisfactorily appears that
there is no reasonable probability that the jury can agree.” (Italics added.)
The law provides, however, that trial courts have the inherent power to direct
a verdict in the absence of any substantial evidence raising a triable issue as
to sanity.
Defendant next claims there was substantial evidence raising a triable
issue as to sanity and therefore the issue should have been decided by the
jury. As we have discussed, the question in this regard is whether defendant,
who had the burden of proof as to insanity, presented sufficient evidence to
support a finding that he was incapable of (1) knowing or understanding the
nature and quality of his acts or (2) distinguishing right from wrong at the
time he stabbed L.W. and N.W. (See Blakely, supra, 230 Cal.App.4th at
p. 776; Severance, supra, 138 Cal.App.4th at p. 322.)
Having presented no evidence at the sanity phase, defendant points to
evidence presented during the guilt phase, specifically (1) the “extensive
evidence” of his mental illness; (2) Dr. Coles’ opinion that he “was in an active
and acute episode of schizophrenia leading up to the offense” (italics omitted),
and “that while some of [defendant’s behavior] reflected ‘goal-oriented’
behavior,” it could also be “consistent with an acute and active psychotic
episode”; and (3) Dr. Gould’s opinion that defendant’s medical records “were
consistent with his manifesting a psychotic illness at the time of the offense”
and his statement, in response to a hypothetical question based on
defendant’s testimony, that defendant’s conduct could be “consistent with
64
someone suffering from psychotic symptoms.” Defendant also points out the
jury deliberated “for days” and asked the court two questions.
There is no question that significant evidence was presented that
defendant suffers from serious mental disabilities or diseases. However, as
we have discussed, this fact, alone, does not satisfy the M’Naghten sanity
test. (People v. Powell (2018) 5 Cal.5th 921, 955 [“A defendant ‘may suffer
from a diagnosable mental illness without being legally insane under the
M’Naghten standard.’ ”], superseded by statute on another ground as stated
in People v. Eynon (2021) 68 Cal.App.5th 967, 973.) In addition, defendant
was required to establish that his mental condition rendered him incapable of
knowing or understanding the nature and quality of his act, or incapable of
distinguishing between right and wrong in relation to that act. (Ceja, supra,
106 Cal.App.4th at p. 1089.)
As we have recited, Dr. Coles testified in the guilt phase of the trial as
to defendant’s capacity to form the specific intent required for the crimes of
premediated and deliberate murder and attempt to commit premeditated and
deliberate murder, and for the special circumstance of lying in wait. Dr.
Coles was not asked to form an opinion about, nor did he testify as to,
defendant’s legal sanity. While Dr. Coles testified there was “ample evidence
to conclude that he was psychotic up through all of the records which come to
right before the crime,”25 he went on to state, “Since I didn’t talk to him, I
25 As we have recited, a little over a week before the stabbings,
defendant was placed on a three-day Welfare and Institutions Code
section 5150 hold and housed at the John George Psychiatric Pavilion
because he reported “had been hearing voices telling him that people were
out to kill him.” The attending psychiatrist believed his “problems . . . were
to be associated with medication noncompliance.” Four days before the
stabbings, he went to Kaiser Oakland and told the emergency department
physician he had suicidal ideations, was hearing auditory hallucinations, was
65
have no opinion at all as to how that [i.e., what appeared in the medical
records] did or did not interact with what he did.” He similarly testified, “I
think given the record, that it’s pretty clear that [defendant] suffers with a
psychiatric illness that was untreated and was active at the time of the
crime. Now, how it played a role and to what degree, I have no opinion.”
Thus, Dr. Coles acknowledged he was not asked to provide, nor did he have,
an opinion as to whether defendant was legally sane at the time of the
crimes.
Dr. Gould similarly testified during the guilt phase as to whether
defendant could act with the requisite mental state required to prove the
charged crimes.26 He also was not asked to form, nor did he provide, an
opinion as to defendant’s legal sanity at the time of the crimes.
At one point, defense counsel asked Dr. Gould if he had considered
whether “personality dysfunction” was the sole factor that led to defendant’s
psychiatric symptoms at the time of the offense.27 The trial court
interrupted, stating counsel’s question was not “pertinent to this phase of the
trial.” Defense counsel asked for some latitude because “[w]e’re paying him
homeless, and someone had stolen $800 from him and thrown urine on him.
He was again referred to John George and released the following day. The
day before the stabbings, he returned to the Kaiser emergency department.
This time he complained only that he had twisted his ankle a week earlier
and it was not feeling better. The physician ordered an X-ray, wrapped
defendant’s foot, gave him ibuprofen and acetaminophen, and released him.
Gould also never interviewed defendant, and there is no indication
26
he listened to defendant or reviewed defendant’s testimony.
CALCRIM No. 3450, on which the jury was eventually instructed,
27
states in part: “Do not base a finding of not guilty by reason of insanity solely
on the basis of a personality disorder, adjustment disorder, seizure disorder,
or an abnormality of personality or character made apparent only by a series
of criminal or antisocial acts.”
66
$250 an hour,” and the court acquiesced. Counsel then re-asked the question,
and Dr. Gould replied he had considered it. He went on to state, “part of
evaluating whether someone suffers from one mental illness also includes
excluding other causes of their behavior. And so someone with a personality
illness or disorder eventually will behave in dysfunctional ways. So by
diagnosing him with a psychotic disorder, it’s my opinion that’s consistent
with the records that he was manifesting a psychotic illness. Now, he may
have an accompanying personality disorder, and that can happen, but it
wasn’t the sole cause of all the medical records documenting psychotic
symptoms.” (Italics and boldface added.) It is the italicized portion on which
defendant relies in his brief. However, as the entirety of the excerpt,
including the bolded we have added, makes clear, Dr. Gould’s testimony was
that defendant suffered from a mental illness. The excerpt says nothing
about whether defendant was legally insane, i.e., that his illness rendered
him incapable of knowing or understanding the nature and quality of his
acts, or incapable of distinguishing between right from wrong at the time of
the criminal acts.
Prior to both Dr. Cole’s and Dr. Gould’s testimony, the prosecutor
expressed concern about defense counsel asking hypothetical questions based
on defendant’s testimony, given defendant’s refusal to testify on cross-
examination. The prosecutor stated, “I did want to put on the record a
concern I have in that my expectation that [defense counsel] is going to ask
Dr. Coles hypothetical questions based on her completed direct examination
of Mr. Cowell. [¶] . . . [¶] The standard cross-examination or direct
examination of experts of this type include hypothetical questions based on
direct testimony and the cross-examination of the defendant. [¶] . . . [B]ut my
position is that will extremely—that will severely limit my ability to cross the
67
doctor since I was not able to question Mr. Cowell on what he was thinking at
the time; what his motivations are, or anything of that effect.” While the
court had ordered defendant removed from the courtroom for his obstructive
behavior, it had not yet told defendant he could not, with impunity, refuse to
testify on cross-examination and, likewise, had not yet imposed any
consequences for his refusal to testify.
Defense counsel subsequently asked Dr. Gould, during the guilt phase,
to assume the following: A person with a “diagnosed psychotic disorder
reports that aliens on a BART train kidnapped his grandmother; that one of
the aliens stood over him and did not have a permit to do so; he talks about a
radio in his head, and the fact that alien females on the train were
threatening to assault his grandmother. He goes on to explain that during
the BART train ride that aliens were pointing to other passengers while
staring at him; assume further that there is surveillance footage on this
entire BART train ride that shows no interaction between the diagnosed and
anybody else on the train.” Counsel then asked Dr. Gould, “Could that report
be consistent with somebody suffering from psychotic symptoms?” Gould
answered, “Yes.” Counsel further asked, “And could that report be consistent
with somebody who’s experiencing delusions?” Gould answered, “Yes.”
Counsel additionally asked, “And could those psychotic symptoms occur from
somebody who is suffering from schizophrenia?” Gould again answered,
“Yes.” Thus, like Dr. Coles, Dr. Gould testified only that defendant could
have been suffering the symptoms of a mental illness. He did not testify
whether such illness rendered defendant incapable of knowing or
understanding the nature and quality of his criminal acts, or incapable of
distinguishing between right from wrong in relation to those acts.
68
Moreover, prior to the sanity phase the trial court struck defendant’s
testimony and expressly instructed the jury, “that in a conference out of the
presence of the jury . . . I struck Mr. Cowell’s testimony at the guilt phase and
therefore you are not to consider that testimony in your resolution of this
case.” It further instructed, “If I ordered testimony stricken from the record,
you must disregard it and must not consider that testimony for any
purpose.” Thus, these instructions effectively excised from the hypothetical
question counsel had asked Dr. Gould in the guilt phase nearly all of its
underpinnings since they had been based on defendant’s testimony. This, in
turn, left Gould’s answer untethered to the evidence and therefore of no
evidentiary value. (See People v. Vang (2011) 52 Cal.4th 1038, 1046 [“A
hypothetical question not based on the evidence is irrelevant and of no help to
the jury (italics added).”].)
In sum, there was no expert testimony presented as to whether, at the
time he committed the crimes, defendant’s mental illnesses rendered him
incapable of knowing or understanding the nature and quality of his criminal
acts, or incapable of distinguishing between right from wrong in relation to
those acts. Nor was there any testimony by defendant. Thus, the record in
this case was no different than the record in Blakely—no expert testimony as
to sanity and no testimony by the defendant—where the Court of Appeal
affirmed the grant of a directed verdict. (Blakely, supra, 230 Cal.App.4th at
pp. 776–781.)
This left the testimony of eyewitnesses to the crimes and those having
contact with defendant immediately and shortly thereafter, and surveillance
evidence. This evidence established that on the day of the crimes, defendant,
who was wearing a hoodie and sunglasses, saw N.W., L.W., and T.W. at the
Concord BART station. He followed the young women onto a train headed
69
toward Oakland. While on the train, he retrieved a knife from his backpack
and secreted the knife in his pants pockets. After arriving at the MacArthur
station, he exited the train and followed the women onto the platform. There
he waited. After the next train arrived, but before the young women could
board, defendant stabbed L.W. and N.W.
Defendant thereafter fled the scene, mixing in with the crowd, and
“directing [the police] back towards the BART station.” He got rid of the
murder weapon and the clothing he was wearing at two different spots. He
then ran away from the scene, ending up at the intersection of San Pablo and
Stanford, which is “about a 25- to 30-minute walk” from the MacArthur
station, where he boarded a bus. The bus driver testified that when he
boarded, defendant asked for a ride, stating his ankle hurt. Thus, defendant
was apparently aware that drivers are allowed to give a “courtesy ride” in
their discretion when people are injured or “have no money.” He asked the
driver “to take him to the next BART station and he said 12th, 19th,” which
was the direction the bus was headed. When the bus arrived in downtown
Oakland, the driver informed defendant of their arrival. After defendant
confirmed they were at a BART station, he thanked the driver and exited the
bus.
He was arrested less than 24 hours later by BART Police Officer
Rodney Barrera. Barrera testified defendant’s answers to questions were
“appropriate,” he did not “seem like he was having trouble understanding,”
and he was not exhibiting any behavior “that caused [Barrera] to have
concern about his mental well-being.” Defendant gave Barrera his name and
told him he was on his way home to Concord. Later that night, Detective
Medeiros interviewed defendant, who appeared “coherent.” Medeiros, who
“over the course” of his career had “to contact numerous people, who at least,
70
based on [his] training and experience” appeared to “be suffering from some
sort of mental health issue” did not have “any concerns about [defendant’s]
mental health” during their conversation. In the portion of the interview
played for the jury, defendant stated he was on BART headed home to
Concord, and that he lived with his aunt.
In sum, while there was substantial evidence defendant suffers from a
serious mental illness, there was no substantial evidence that at the time of
the crimes defendant was incapable of (1) knowing or understanding the
nature and quality of his acts or (2) distinguishing right from wrong. (See
Blakely, supra, 230 Cal.App.4th at p. 776; Severance, supra, 138 Cal.App.4th
at p. 322.) Accordingly, the trial court did not err in granting a directed
verdict on sanity.28
Prosecutorial Misconduct
Defendant also maintains the prosecutor engaged in misconduct during
both the guilt and sanity phases, violating his right to due process and
rendering the proceedings fundamentally unfair. He contends the
“misconduct fell into three basic categories: (1) improperly implying
appellant’s actions were racially motivated and injecting inferences of racial
animus; (2) goading appellant into erupting before the jury with improper
questions and argumentative behavior; [and] (3) asking the jury to draw
conclusions not supported by the evidence, vouching and taking advantage of
evidentiary rulings.”
“ ‘ “A prosecutor commits misconduct when his or her conduct either
infects the trial with such unfairness as to render the subsequent conviction a
28 We therefore need not, and do not, address defendant’s additional
claim that, despite the Covid directives, there was “insufficient evidence” that
the jury could not “safely” deliberate, and that the trial court should have
declared a sanity mistrial.
71
denial of due process, or involves deceptive or reprehensible methods
employed to persuade the trier of fact.” ’ [Citations.] During opening and
closing arguments, the prosecution is given wide latitude to make ‘ “fair
comment on the evidence, including reasonable inferences or deductions to be
drawn from it.” ’ [Citation.] ‘ “As a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the impropriety.” ’ ”
(Parker, supra, 13 Cal.5th at p. 72.) “ ‘ “A defendant’s conviction will not be
reversed for prosecutorial misconduct . . . unless it is reasonably probable
that a result more favorable to the defendant would have been reached
without the misconduct.” ’ ” (Id. at pp. 71–72.)
Racial Motivation
During the prosecutor’s cross-examination of defendant, an argument
arose between the prosecutor and defense counsel over a transcript, which
was presented to the jury, of a video of the bus ride defendant took on the
night of the crimes. The prosecutor asked defendant whether it was, “true
while you were on the bus, you essentially tried to pick a fight with the
African-American woman on the bus?” Defendant responded that he did not
remember. The prosecutor followed up by asking, “Isn’t it true you turned to
her and said, ‘you are trying to throw something on me, little nigger’?”
Defendant responded, “No.” Defense counsel objected, stating “That is an
inaccurate statement; that’s not in evidence; that’s not on the transcript;
that’s nowhere in here. That’s being fabricated by [the prosecutor].” When
the prosecutor pointed to the transcript, defense counsel asserted her copy
did not contain any such statement.
72
The discussion moved into chambers. There, defense counsel again
asserted “[t]he transcript that [the prosecutor] gave me was given to me over
email and it does not include the N word. He passed out a transcript to [the]
jury that includes the N word and that was never given to me.” The
prosecutor claimed he had handed defense counsel a copy of the transcript he
was using when she walked into court. Defense counsel denied that she had
been given a copy and asserted the emailed copy “did not mirror what he
handed out to the jury. I would have never agreed to have the N word on
that transcript because that’s not what’s heard in the video. You cannot hear
that in the video. And he handed out to this jury, and he intentionally did it
knowing that my copy said ‘unintelligible,’ and he put the N word on his copy
and it’s misconduct and it’s flagrant misconduct and I want a mistrial. There
is absolutely—that is the most despicable behavior I have ever seen in my
entire life trying cases.”
The prosecutor responded, “What actually happened is . . . at some
point prior to Thursday, I received a transcript . . . I did email it to [defense
counsel]. I’m not denying that. In the interim, I reviewed the transcript,
which is my practice. I listened to the audio, and it’s very clear to me—it’s
very clear to me what is said. . . . I corrected the transcripts, and there are
other corrections as well, and [defense counsel] can go through the transcript
and look at that as well. [¶] Thursday, I gave her a hard copy on her desk.
There was no doubt in my mind about that. I know that to be the case. In
addition, at the end of the day Thursday, there was a discussion in my office
by DAs who were in here who said, has [defense counsel] said anything about
it. And I said no, she’s had it. She’s had it since this morning. [¶] The court
has a copy that’s clearly marked. The exhibit is marked. So to try to claim
that I purposely tried to mislead her is absolutely not true. If [defense
73
counsel] is saying she didn’t look at the hard copy I gave her, that’s on her.
She had it Thursday, Friday, Saturday, Sunday, Monday, and never raised
an objection.”
The court stated, “[I]f you are going to include that word on a
transcript, which you give to the jury, [and] you have not furnished that same
transcript to [defense counsel], that is reprehensible conduct to give it to the
jury.” The court did not decide whether or not the prosecutor, in fact, had
given defense counsel the corrected transcript; rather, it stated the
prosecutor “should have” brought to defense counsel’s attention “that there
was a difference in that transcript and the transcript that you had earlier
furnished her.” The court also denied the motion for mistrial, pointing out it
had instructed the jury that “transcripts are not evidence” and stating it
would also admonish the jury “to disregard the District Attorney’s question
as to the content of that transcript.”29
On appeal, defendant continues to maintain the prosecutor
deliberately—and improperly—showed the “corrected” transcript to the jury
without affording defense counsel an opportunity to review it in order to
portray defendant as a racist and imply he was motivated by racial animus.
To begin with, the trial court refused to make any finding that the
prosecutor deliberately tried to get the “corrected” transcript in front of the
29 The court duly admonished the jury as follows: “A transcript was
furnished to you yesterday, Exhibit 7C, of audio from the AC Transit bus.
That transcript contained a remark allegedly made by the defendant, which
was of a racial nature. Whether that remark was made is only an
interpretation by the person who was preparing the transcript and is not
evidence. Since it is not evidence, you are to disregard it and it is to play no
part in your decision making in this case. [¶] As I’ve also instructed you,
questions of counsel are not evidence, so you are also to disregard any
questions by the District Attorney that assumed it was true.”
74
jury before defense counsel had an opportunity to see it. Instead, it chastised
the prosecutor for failing to alert defense counsel that such a significant
“correction” had been made. We wholeheartedly agree with the trial court
that the prosecutor’s failure to alert defense counsel to this “correction” of the
transcript was highly inappropriate and unprofessional. However, we are in
no position to make the credibility determination the trial court refused to
make, and we agree that given all of the circumstances the trial court’s
chastisement was an appropriate way to handle the situation.
Even assuming the prosecutor engaged in outright misconduct, we
cannot say it is probable that a result more favorable to the defendant would
have been reached without the misconduct. The “N” word in the transcript
and referenced by the prosecutor was certainly loaded, but it was a single
word and a single question in a guilt-phase trial that lasted more than 10
weeks. In addition, the court promptly admonished the jury that the
transcript and the prosecutor’s question were not evidence and it was to
disregard both. In addition, as we have recited, the evidence that defendant
committed the stabbings was overwhelming.
Improper Questioning
Defendant maintains the prosecutor’s “continu[ous] goad[ing]” of
defendant, despite his awareness of defendant’s “severe mental illness,”
“went beyond spirited advocacy to a manipulative and improper attempt to
influence the jury.” He points to two such instances.
The first occurred when the prosecutor asked about the knife in
defendant’s hand as seen on the BART surveillance video. The prosecutor
asked “Do you remember last Tuesday, me showing you a knife?” and “And
you remembered that knife, right?” Defendant replied, “Yes” to both
questions. The prosecutor then held up the knife, marked as exhibit No. 3A1,
75
and asked, “That’s the knife, correct?” Defendant responded, “Yes.” To which
the prosecutor replied, “It’s not a banana, right?” At that point, defense
counsel objected as “argumentative,” and the trial court sustained the
objection.
The second occurred when the prosecutor asked defendant whether he
was “not taking meds because you want to appear crazy, right?” Defendant
responded, “I don’t remember that.” The prosecutor asked again later, during
his cross-examination, “And again, sir, you’re not on any medication today,
are you?” Defendant responded, “I don’t take medication at all.” The
prosecutor responded, “Because you want to appear crazy, right?”
To begin with, defense counsel made no objection to the latter,
medication questions, thus forfeiting the issue on appeal. (People v. Foster
(2003) 111 Cal.App.4th 379, 383 [A “ ‘defense counsel’s failure to object to the
prosecutor’s [questions] waives the issue on appeal.’ ”].)
In any case, the cross-examination about which defendant complains
did not cross the line into prejudicial misconduct. “[T]he permissible scope of
a prosecutor’s cross-examination of a defendant is ‘ “very wide.” ’ ” (People v.
Mayfield (1997) 14 Cal.4th 668, 755, overruled in part on another ground as
stated in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) We have reviewed
the prosecutor’s entire cross-examination, and though at times vigorous and
adversarial, his questions neither individually nor in combination rose to the
level of having so “infect[ed] the trial with such unfairness as to render the
subsequent conviction a denial of due process, or involve[d] deceptive or
reprehensible methods employed to persuade the trier of fact.” (Parker,
supra, 13 Cal.5th at p. 72.)
76
Vouching and Matters Outside the Record
Defendant also complains the prosecutor engaged in improper vouching
and referred to matters outside the record.
During closing, the prosecutor stated, “The defendant testified on direct
examination and said the word ‘aliens’ six times. There’s a little asterisk at
the end, because I had the benefit of reading through it all.” Defense counsel
objected, “as vouching.” The trial court sustained the objection. It had also
instructed the jury that it could not consider testimony as to which the court
sustained an objection and that nothing counsel argued or said was evidence.
A little later, the prosecutor stated, “By the way, cross-examination
was 100 pages, and one time he used the word ‘aliens.’ ” The court overruled
defense counsel’s objection that referring “to all these page counts as
vouching and outside of evidence.” The court did not err in doing so, as this
statement was comment on the state of the evidence, not improper vouching.
(See People v. Weaver (2012) 53 Cal.4th 1056, 1077 [prosecutor may comment
on state of the evidence]; People v. Jasso (2012) 211 Cal.App.4th 1354, 1370–
1371 [same].)
The prosecutor also discussed, during closing, defendant’s jailhouse
calls. He stated, “The jail calls. Again, he uses a different PIN . . . . He does
that because they are harder to track. We can’t find his PIN . . . .” Defense
counsel made no objection, so any complaint about this statement is forfeited
on appeal. (People v. Foster, supra, 111 Cal.App.4th at p. 383 [A “ ‘defense
counsel’s failure to object to the prosecutor’s [questions] waives the issue on
appeal.’ ”].)
In rebuttal argument, the prosecutor stated, “What I know is that
mental health records are very, very difficult to get. There’s this thing about
privilege, right.” Defense counsel responded, “Objection, evidence,” and the
77
trial court again sustained the objection. As noted above, the court had also
instructed the jury that it could not consider testimony as to which the court
sustained an objection and that nothing counsel argued or said was evidence.
Later in rebuttal, the prosecutor stated, “And [defense counsel] is right,
they didn’t have to present a case, but once they do, it goes into the lump of
evidence for your consideration. . . . [W]ell, the prosecution has the burden of
proof so maybe we’re not supposed to use that evidence. No.” The trial court
sustained defense counsel’s “burden shifting” objection. Again, the court had
also instructed the jury that it could not consider testimony as to which the
court sustained an objection and that nothing counsel argued or said was
evidence.
The prosecutor also stated in rebuttal, “And I told you the only
difference between lying in wait for a first degree murder, which this clearly
is, and the special circumstance enhancement, is you have to find he intended
to kill, and nobody watching that video can have a doubt about that. Nobody
should. [¶] If [N.W.] was alive—.” Defense counsel objected as “appealing to
passions,” and the trial court sustained the objection. The prosecutor went
on, “If you watch the video, and she hadn’t died, you would think he tried to
kill those two girls. That’s my point. That’s what I’m saying. If you saw it,
and she hadn’t died, you would think he tried to kill her.” This time the court
overruled defense counsel’s objection. The court correctly did so, as this was
again fair comment on the evidence.
During the prosecutor’s closing argument in the sanity phase, he stated
“a court will appoint two doctors when there’s a sanity issue. And the doctors
come and say, look, he suffered from a mental disease or defect, prong one.
And at the time that he was insane, prong two. There’s no evidence of that.
[¶] . . . [¶] And yes, all of you are intelligent. You figure out the defendant
78
doesn’t want to interview with them. . . . He knows they are going to test him
for malingering. So there’s no evidence of the second prong.” Later, after the
court sent the jury to deliberate, defense counsel stated, “I didn’t object at the
time for tactical reasons, but I did want to lodge an objection on the record”
that the prosecutor committed misconduct when he “started to talk about
how the defense has no experts; and they didn’t call any experts when they
know very well that I had an expert and I had an expert who was going to
come in here and testify that my client was legally insane at the time of the
offense, but it got excluded.” Counsel then requested admonition, which the
court declined. The court did not err in refusing to further admonish the
jury. This was a fair comment on the state of the evidence, and the court
had, as we have recited, instructed the jury that argument of counsel is not
evidence.
In sum, neither individually, nor collectively, did these complained-of
statements rise to the level of having so “infect[ed] the trial with such
unfairness as to render the subsequent conviction a denial of due process, or
involve[d] deceptive or reprehensible methods employed to persuade the trier
of fact.” (Parker, supra, 13 Cal.5th at p. 72.) On the contrary, some of
defense counsel’s objections were sustained, and the jury was instructed both
that questions and comments by counsel were not evidence and it could not
consider any testimony to which an objection was sustained. As to several of
the complained-of statements, defendant made no objection and thus forfeited
any claim of error. And as those objections that were not sustained, the
complained-of statements did not constitute misconduct. Furthermore,
considered in context and in light of the instructions given, and given the
overwhelming evidence supporting the verdicts of guilty, it is not reasonably
79
probable that a result more favorable to the defendant would have been
reached without the asserted misconduct.
Mistrial
Defendant also contends the trial court erred in denying his motions for
a mistrial. He asserts there were “numerous incidents and factors that
together rendered the possibility of a fair trial highly unlikely,” pointing to
three assertedly “dramatic incidents.”
The first incident was L.W. vomiting in front of the jury when she was
“asked . . . to stand close to the video monitor and narrate . . . the video”
footage just before it showed defendant “stabbing her sister in the neck.”
Defense counsel moved for a mistrial stating, “I think that based upon what
just occurred which was—it appeared to me that when [the prosecutor] was
started to lead the witness . . . , I objected and it was sustained. And he
appeared to then, in my mind, act emotionally; take the witness and stand
her within 1 foot of a gigantic TV screen where she was then forced . . . to
watch video surveillance, which shows her sister being stabbed to death in
front of her. And then she ended up throwing up in front of the jury. And I
just don’t see—I believe that my client’s chance to get a fair trial is
irreparably damaged. And on those grounds, I’m moving for a mistrial.”
The court denied the motion, stating “I don’t believe the fact that the
witness throwing up could have been foreseen by the District Attorney and
therefore the motion for mistrial is denied.”
The second incident was the argument over the AC Transit bus
transcript, which we have detailed above (see pp. 75–79, ante).
The third incident occurred outside court, on one of the days of the
prosecution’s rebuttal argument. Defense counsel told the court:
“I was walking into the courthouse . . . using the main entrance . . . ,
which is the entrance that I believe would be used by the majority of
80
our jurors . . . there were a number of protestors. . . . They are standing
actually not on public space, but they are standing on the wall that is
the courthouse building. And jurors would have to walk up past them.
[¶] And in addition to this, there’s people screaming on the court
steps—excuse me—kitty-corner screaming ‘[N.W., N.W.]’ And when I
walked back, the woman in the photo who has a jean jacket on and is
holding a heart sign that says ‘[N.W.]’ said ‘oh, look who it F-ing is? F
you, you F-ing Bitch,’ and she wasn’t saying ‘F-ing,’ and she was saying
it very aggressively. And she took her signage and shoved it in my face
from her position of advantage up above me. And I had to stop in my
steps, and I had to fling my head back so as not to be hit by her
signage. There was a lot of people around when that happened. I
didn’t have an opportunity to see if there were any jurors, because I
was, frankly, scared out of my mind that I was about to be assaulted,
but I think it is highly likely that a juror saw me get assaulted by this
woman. And I think it’s highly likely, almost undeniable, that the
jurors saw this protest that is being allowed to occur not on public
space, but being allowed to occur standing on the courthouse. [¶] And
with that, I would like to . . . move for a mistrial.”
The court denied the motion stating, “I have no indication that this
jury’s objectivity has been compromised by this incident.”
A motion for mistrial “is directed to the sound discretion of the trial
court.” “ ‘A mistrial should be granted if the court is apprised of prejudice
that it judges incurable by admonition or instruction. [Citation.] Whether a
particular incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions.’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 985–986; see
People v. Lightsey (2012) 54 Cal.4th 668, 718.) “We review a trial court’s
ruling on a motion for mistrial for abuse of discretion. [Citation.] Such a
motion should only be granted when a defendant’s ‘chances of receiving a fair
trial have been irreparably damaged.’ ” (People v. Valdez (2004) 32 Cal.4th
73, 128.) Even if prosecutorial misconduct is involved, this court will not
reverse a conviction absent prejudice to the defendant. (See People v. Riggs
81
(2008) 44 Cal.4th 248, 298 [under California misconduct law, no reversal
unless “reasonably probable that without such misconduct, an outcome more
favorable to the defendant would have resulted”; and under federal law, no
reversal “unless the challenged action ‘ “so infected the trial with unfairness
as to make the resulting conviction a denial of due process” ’ ”].) Thus, if “any
reasonable jury would have reached the same verdict,” the trial court’s ruling
will stand. (People v. Bolton (1979) 23 Cal.3d 208, 214–215.)
The trial court did not abuse its discretion in denying defendant’s three
mistrial motions. There is nothing in the record that suggests that the fact
one of the victims got sick during her testimony, was “incurably prejudicial.”
(See People v. Martin (1983) 150 Cal.App.3d 148, 162–163 [no mistrial for
witness’s emotional outburst]; People v. Roy (1971) 18 Cal.App.3d 537, 554
[no mistrial for single emotional outburst by murder victim’s wife while
testifying], disapproved of on another ground as stated in People v. Ray
(1975) 14 Cal.3d 20, 32.30) As for the AC Transit bus video, as we have
discussed above, the trial court handled the situation appropriately and it did
not call for a mistrial. As for the out-of-court protest, counsel’s assertions
that some jurors must have seen it was speculative, and even assuming some
jurors did pass by it, nothing in the record indicates it interfered with their
service in accordance with the court’s instructions. (See People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1029 [mistrial properly denied where witness
comment “added nothing to what the jury knew” and it was speculative as to
whether jury even heard comment]; People v. Panah (2005) 35 Cal.4th 395,
450–451 [mistrial properly denied in absence of any indication in the record
that the jury actually observed an incident of spectator misconduct]; see also
30 Abrogated on another ground in People v. Lasko (2000) 23 Cal.4th
101, 110.
82
People v. Craig (1978) 86 Cal.App.3d 905, 919–920 [mistrial properly denied
when jury observed picketing outside the courtroom because of court’s prompt
admonition and even assuming error, it was harmless].)31
DISPOSITION
The judgment is AFFIRMED.
31 Given our rejection of defendant’s specific claims of error, we need
not and do not address his claim of prejudicial cumulative error.
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Banke, J.
WE CONCUR:
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Humes, P. J.
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Margulies, J.
A160637 People v. Cowell
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