The People v. Mai

Filed 8/26/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S089478

v. )

) Orange County

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

)

Defendant and Appellant. )

____________________________________)

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

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

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

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

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

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

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

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

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

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

1

FACTS

A. Guilt and special circumstance evidence.

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

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

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

from the preliminary hearing transcript. That transcript included the following

evidence.

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

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

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

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

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

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

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

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

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

―hard stare.‖

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

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

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

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

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

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

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

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

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

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

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

the officer.

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

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

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

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

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

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

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

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

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

floorboard of the BMW.

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

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

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

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

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

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

traveler‘s checks in a paper bag were discovered.

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

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

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

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

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

Kennedy arrived.

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

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

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

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

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

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

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

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

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

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

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

Nguyen and defendant were engaged in an ongoing criminal enterprise whereby

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

spot on the sneakers defendant was wearing.

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

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

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

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

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

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

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

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

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

forged checks Nguyen was buying from defendant.

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

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

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

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

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

Nguyen identified these shoes from photographs as the ones defendant was

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

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

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

the Honda yielded a ―positive match.‖

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

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

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

happened‖ to the BMW, and it was hers.

No defense evidence was presented at the preliminary hearing.

B. Prosecution’s penalty phase evidence.

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

aggravation, the prosecution presented extensive evidence about the factual

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

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

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

Finally, the prosecution introduced evidence that defendant had sustained several

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

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1. Facts of the capital crime.

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

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

additional details.

Fullerton Reserve Police Officer Michael Lyman testified that between

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

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

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

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

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

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

photo lineup.

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

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

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

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

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

BMW.

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

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

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

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

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

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

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

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

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

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

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

identified defendant as the shooter.

Bernice Sarthou testified, consistently with her preliminary hearing

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

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

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

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

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

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

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

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

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

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

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

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

of the BMW and the shooter of Officer Burt.

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

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

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

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

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

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

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

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

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

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

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

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

Avenue exit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9

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

each of two random individuals was one in six billion.

A United States Treasury Department agent testified that the 99 good-

quality counterfeit traveler‘s checks found in the paper bag at the crime scene

were worth about $10,000. These checks belonged to a larger series of already-

passed counterfeit checks that had caused losses of over $240,000. The quantity

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

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

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

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

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

injuries to his brain, lungs, and visceral organs.

2. Victim impact.

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

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

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

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

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

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

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

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

in an auto accident about nine months earlier.

3. Other violent crimes.

The prosecution presented the following evidence of other crimes by

defendant involving violence or the threat of violence:

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

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

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

common balcony walkway, where defendant was struggling with Pham,

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

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

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

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

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

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

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

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

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

Baker went to make sure the manager called the police.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

one in which he had been abducted.

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

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

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

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

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

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

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

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

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

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

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

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

make a positive identification at the April 2000 penalty trial.

4. Prior felony convictions.

The prosecution presented evidence that defendant had suffered prior

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

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

12

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

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

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

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

(§§ 459, 460, subd. (a)).

C. Defense penalty case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

offered.

DISCUSSION

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

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

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

13

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

federal constitutional rights to conflict-free representation. Defendant further

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

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

respects, counsel provided him with constitutionally ineffective assistance. No

basis for reversal appears.

1. Factual background — conflict of interest claim.

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

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

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

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

represent defendant. Daniel Watkins was an investigator originally hired by

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

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

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

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

United States District Court for the Central District of California against

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

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

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

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

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

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

because of his cooperation with law enforcement.4

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

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

(Footnote continued on next page.)

14

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

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

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

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

indictment also alleged that after the authorities provided defendant with fake

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Footnote continued from previous page.)

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

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

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

15

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

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

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

among his defense team.‖

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

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

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

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

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

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

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

defense counsel requested the appointment of an outside attorney to advise

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16

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

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

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

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

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

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

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

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

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

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

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

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

[defendant].‖

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

was presented at defendant‘s penalty trial.

17

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

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

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

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

ineffective in and of itself.‖

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

representation.

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

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

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

18

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

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

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

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

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

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

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

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

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

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

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

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

admit the special circumstance allegation that he intentionally killed a peace

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

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

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

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

state death sentence was carried out.

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

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

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

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

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

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

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

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

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

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

a fatal head wound to the range officer.

19

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

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

provided defendant met specified conditions. The federal prosecutor also

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

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

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

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

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

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

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

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

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

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

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

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

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

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

defendant in the federal case.

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

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

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

that, knowing defendant had committed the underlying substantive offense,

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

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

implicated Peters or O‘Connell.

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

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

20

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

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

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

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

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

result of duress, coercion, threats, or promises.

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

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

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

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

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

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

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

terms of the agreement requiring the federal prosecutor to make recommendations

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

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

that he plead guilty to Officer Burt‘s murder.

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

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

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

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

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

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

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

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

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

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

21

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

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

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

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

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

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

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

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

rights. The court accepted the stipulation.

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

defendant was disturbed by newspaper articles that apparently cited the tactical

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

special circumstance trial was appropriate.

22

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

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

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

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

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

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

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

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

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

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

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

explain, we find no merit in these contentions.

2. Applicable law.

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

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

legal assistance. When challenging a conviction on grounds of ineffective

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

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

it fell below an objective standard of reasonableness under prevailing professional

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

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

proceeding would have been different. When examining an ineffective assistance

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

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

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

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

23

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

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

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

explanation. All other claims of ineffective assistance are more appropriately

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When addressing an appellate claim that a conflict of interest adversely

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

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

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

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

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

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

24

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

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

The defendant may voluntarily, knowingly, and intelligently waive a

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Waiver of conflict of interest.

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

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

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

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

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

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

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

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

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

25

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

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

defendant was generally apprised of the considerations that should influence his

waiver decision.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

therefore safely enter his waiver.

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

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

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

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

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

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

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

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

26

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

conjectural need not be addressed.

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

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

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

which Independent Counsel Pohlson reviewed. But that document is an

exceedingly weak foundation upon which to build such a theory.

Defendant characterizes the Waltz memo as containing ―allegations‖ by

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

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

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

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

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

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

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

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

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

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

indictment.

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

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

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

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

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

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

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

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

27

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

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

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

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

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

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

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

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

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

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

Under these circumstances, neither Independent Counsel Pohlson nor the

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

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

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

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

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

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

was valid when given.

4. Claims of ineffective and conflict-related adverse

representation.

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

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

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

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

rendered ineffective assistance.

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

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

28

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

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

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

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

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

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

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

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

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

mention of any involvement by Peters and O‘Connell.

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

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

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

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

Watkins or defendant.

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

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

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

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

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

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

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

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

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

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

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

29

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

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

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

recommendations for Pham, and it honored its promise.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

phases.

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

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

30

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

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

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

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

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

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

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

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

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

Common sense suggests the prosecution would not likely have offered favorable

terms in a case presenting overwhelming evidence that defendant murdered a

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

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

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

was otherwise professionally deficient.7

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

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

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

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

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

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

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

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

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

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

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

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

counsel would likely have acted differently.

31

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

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

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

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

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

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

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

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

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

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

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

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

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

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

preliminary hearing, prosecution witness Nguyen testified defendant told him the

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

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

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

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

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

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

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

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

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

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

(Footnote continued on next page.)

32

there was reasonable doubt whether the prosecution had established the

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

murder.

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

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

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

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

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

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

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

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

finder could find beyond reasonable doubt that Officer Burt was lawfully

performing his duties when he was killed.

Thus, experienced trial counsel could rationally conclude, for several

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

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

be exposed to persuasive evidence defendant had gunned down Officer Burt

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

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

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

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

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

(Footnote continued from previous page.)

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

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

33

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

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

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

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

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

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

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

submitting the special circumstance issue on the preliminary hearing transcript,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Footnote continued on next page.)

34

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

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

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

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

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

performance in this respect.

b. Penalty phase strategy.

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

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

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

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

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

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

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

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

i. Failure to challenge aggravating evidence.

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

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

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

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

(Footnote continued from previous page.)

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

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

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

right to raise an insufficient-evidence claim on appeal.

35

prosecution‘s claim that defendant carjacked and kidnapped Robert Bachand

during a vehicle test drive.

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

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

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

McDermott (2002) 28 Cal.4th 946, 993; see People v. Bolin (1998) 18 Cal.4th 297,

334.) Defendant points to no exculpatory or impeachment evidence that further

examination would have elicited. ― ‗We cannot evaluate alleged deficiencies in

counsel‘s representation solely on defendant‘s unsubstantiated speculation.‘ ‖

(Bolin, supra, 18 Cal.4th at p. 334, quoting People v. Cox (1991) 53 Cal.3d 618,

662, fn. omitted.) Nor does such unsubstantiated speculation allow us to infer that

unconflicted counsel would likely have acted differently.

In particular, defendant suggests counsel knew of grounds to challenge the

Bachand carjacking evidence and, if competent and unconflicted, would likely

have mounted such a challenge. As support for this contention, defendant points

to his own courtroom outburst during the testimony of Bachand, an automobile

salesman. When Bachand recounted that two men, of whom defendant was the

taller, approached him with a request to test drive a 1996 Honda Prelude,

defendant interrupted to shout, ―This is fucking bullshit. What the fuck am I going

to carjack a piece of shit Honda? [¶] If I were in the car I would have wasted your

fucking ass, it would have been stupid.‖ When Bachand said to defendant, ―You

had your chance,‖ defendant asserted, ―You fucking ass, I will put something

on.‖10 Defendant also points to Attorney Peters‘s statement at the hearing on the

10 A few moments later, Bachand said that after he was handcuffed at

gunpoint and forced to lie down in the carjacked vehicle‘s back seat, defendant

warned him to cooperate in handing over his ATM card and PIN number because

(Footnote continued on next page.)

36

automatic motion for modification of the death verdict that he had tried to

persuade the prosecutor not to present the carjacking incident ―because I knew

from my own investigation that [defendant] was not good for [i.e., did not do]

that.‖

But nothing in the record passages defendant cites is evidence that

undermines the prosecution‘s proof of the carjacking incident. In response to

careful questioning by the prosecutor and the court, Bachand positively identified

defendant as the taller man who requested the test drive and later participated in

abducting him at gunpoint. The record discloses no ground to conclude that any

evidence to discredit this testimony existed, that defendant‘s counsel knew or

should have known of such evidence, or that counsel would likely have produced

it if competent and unconflicted. Defendant‘s claim must be rejected.

ii. Failure to pursue mitigating evidence.

Defendant next urges that, in one respect, the record indicates counsel

failed in their duty to investigate and present to the client potentially significant

mitigating evidence before acceding to his wishes not to offer it in mitigation.

(See, e.g., Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1089-1090.)

Defendant points to his counsel‘s representations that his girlfriend, Victoria

Pham, had said his behavior became more violent after a near-fatal auto accident;

as a result, according to counsel, the defense psychologist, Dr. Veronica Thomas,

recommended neuropsychological tests, and perhaps an MRI or CAT scan, to

(Footnote continued from previous page.)

― ‗[y]ou don‘t know who you are messing with‘ ‖ and ― ‗we‘re Asian, Vietnamese

Mafia.‘ ‖ At this point, defendant interrupted again to say, ―Asian Mafia, stupid

fuck.‖

37

determine whether defendant had sustained brain damage. Defendant notes that

counsel‘s billing records fail to indicate that Dr. Thomas, or any other qualified

mental health expert, ever conducted such tests, and we must thus assume they

were not performed.

But even if we so assume, the record discloses no basis to conclude

counsel‘s failure to pursue this line of inquiry, and to advise defendant of the

results before agreeing not to present them, was deficient performance influenced

by their asserted conflict of interest. To the extent the record sheds any light at all

on the subject, it suggests a different explanation.

In mid-1999, over eight months before the actual commencement of the

penalty trial, counsel represented that they intended to pursue testing for brain

damage, and were preparing to do so, as a priority matter, subject to approval of

the necessary funding. However, the record contains circumstantial evidence that

the defense team, including Dr. Thomas, thereafter became absorbed in an effort

to deal with defendant‘s increasing anger and emotional instability caused, in part,

by the restrictive conditions of his federal confinement. There are indications that

this anger and instability, resulting in defendant‘s lack of cooperation with Dr.

Thomas, may be the ultimate reason why such tests were never administered.

As discussed in greater detail in part A.4.c below, defendant, following his

federal conviction, was held in federal detention pending his trial on these state

capital charges. He was subject to the harsh confinement conditions dictated by

his federal plea agreement. His subsequent serious rule violations while confined

led to even more severe restrictions imposed by the federal district court and his

federal jailors. In the months and weeks preceding his state trial, he was kept

under constant surveillance, and in essential isolation, except for access to the

defense team.

38

During this period, and through the commencement of the penalty trial,

counsel, assisted by Dr. Thomas, worked tirelessly to obtain a relaxation of these

conditions, citing the psychological effects of defendant‘s confinement on defense

efforts to prepare for the trial. To that end, counsel and Dr. Thomas represented in

various fora that, though defendant was not incompetent, the emotional and

psychological toll of his confinement was impairing his attitude and willingness to

cooperate, to the extent that Dr. Thomas was ―unable to move forward‖ with her

work for the defense and could not complete that work.

Thus, though the record does not establish for certain the reason tests for

brain damage were never done, it does not support the inferences defendant seeks

to draw. It fails to demonstrate that counsel‘s deficient performance, arising from

a conflict of interest, was the reason for any failure to administer the desired tests,

or that such tests would likely have been administered but for counsel‘s conflict

and incompetence.

iii. Failure to present mitigating evidence and argument.

Next, defendant urges that counsel, influenced by their conflict of interest,

performed deficiently by acceding to his wish not to present available mitigating

penalty evidence. Defendant concedes that counsel does not necessarily act

incompetently by honoring the client‘s wishes not to present such evidence

(People v. Lang (1989) 49 Cal.3d 991, 1031 (Lang); see People v. Howard (1992)

1 Cal.4th 1132, 1185; People v. Edwards (1991) 54 Cal.3d 787, 811),11 but he

11 As we explained in Lang, ―[t]he proposition that defense counsel should be

forced to present mitigating evidence over the defendant‘s objection has been

soundly criticized by commentators. [Citations.] As these commentators point

out, an attorney‘s duty of loyalty to the client means the attorney ‗should always

remember that the decision whether to forego legally available objectives or

methods because of non-legal factors is ultimately for the client . . . .‘ [Citation.]

(Footnote continued on next page.)

39

asserts that counsel need not do so (see People v. Roldan, supra, 35 Cal.4th 646,

682 [counsel, not client, has control over all but most fundamental trial decisions];

People v. Welch (1999) 20 Cal.4th 701, 728-729 [same]) and should overrule a

client they suspect is unable to make a rational decision. Here, he asserts, his

counsel knew he was psychologically unstable, and sometimes irrational, as the

result, among other things, of his harsh confinement conditions.

Moreover, defendant asserts that counsel‘s decision deprived him of a

substantial mitigating case, including evidence he was the illegitimate child of a

Vietnamese ―bar girl‖ and a South Vietnamese soldier, was rescued from war-torn

Vietnam at the age of four, and never again had contact with either parent until he

saw his father at the time of the capital trial.

Again, however, the record does not support defendant‘s theory that

counsel‘s decision, at defendant‘s own insistence, to present no mitigating penalty

evidence stemmed from a conflict of interest. Nor does it indicate that defendant

(Footnote continued from previous page.)

To require defense counsel to present mitigating evidence over the defendant‘s

objection would be inconsistent with an attorney‘s paramount duty of loyalty to

the client and would undermine the trust, essential for effective representation,

existing between attorney and client. Moreover, imposing such a duty could cause

some defendants who otherwise would not have done so to exercise their Sixth

Amendment right of self-representation [citation] before commencement of the

guilt phase [citations] in order to retain control over the presentation of evidence at

the penalty phase, resulting in a significant loss of legal protection for these

defendants during the guilt phase.‖ (Lang, supra, 49 Cal.3d 991, 1030-1031.) No

different standards or considerations should apply simply because, on appeal, the

defendant applies a ―conflict of interest‖ gloss to counsel‘s decision. As Lang

suggested, counsel‘s accession to the client‘s considered desire to present no

mitigating evidence demonstrates loyalty to the client, not conflict-related

disloyalty.

40

was acting irrationally in seeking to present no mitigating case. On the contrary,

the record is replete with indications that counsel pursued evidence about the

circumstances of defendant‘s birth and his escape from Vietnam, and were

prepared to present that evidence. Indeed, counsel obtained trial delays, and

surmounted various bureaucratic, diplomatic, and logistical difficulties, in a

successful effort to bring defendant‘s father and uncle from rural Vietnam to

testify on his behalf.

On the other hand, there are indications that defendant consistently, and

rationally, opposed the presentation of a penalty defense, despite counsel‘s efforts

to change his mind. Ultimately, on April 17, 2000, after the prosecution had

rested its penalty case, counsel advised the court there would ―probably‖ not be

any defense evidence, but that counsel would be discussing that with defendant

―over the next day and a half.‖ Counsel indicated that ―we do have evidence

available, and we could use it if there is a change in mood.‖ The court obtained

defendant‘s agreement that counsel had advised him they were ready, willing, and

able to present such evidence, and had ―recommended to you that it be presented.‖

Defendant also confirmed his understanding, as advised by the court, that his

decision not to offer such evidence might result in the death penalty, and that if he

precluded such evidence, he could not blame his lawyers or otherwise complain on

appeal about its omission.

On April 19, 2000, Attorney Peters advised the court that, ―for some time‖

he had been discussing possible penalty defenses with defendant, ―and it has been

his consistent wish not to defend himself for what he believes are valid moral

reasons, and I believe that he is competent and he is thinking morally for himself.‖

Peters indicated that defendant had threatened to ―act out,‖ such as by interrupting

or overturning tables, if counsel acted contrary to his desires. Peters declared that

under these circumstances, and especially considering that the available mitigation

41

was probably too weak to make a difference in the penalty determination, he was

making a ―conscious decision‖ to do as defendant asked.

The court then engaged defendant in another extended colloquy about his

decisions not to present mitigating evidence or argument, and to testify personally.

At the court‘s prompting, defendant again indicated he understood that counsel

had mitigating evidence, were prepared to present it, and wanted to do so.

Defendant confirmed he did not wish counsel to present such evidence. The court

reminded defendant that, even if he offered no evidence, his lawyers, if allowed to

speak on his behalf, could possibly ―present different arguments to the jurors that

might be favorable to you. And precluding [counsel] from that is another step

towards the death penalty.‖ Defendant separately confirmed he wished to

preclude counsel from arguing the case.

Explaining his position on these issues, defendant insisted he was ―not

suicidal,‖ but this was ―something I need to do,‖ something ―important‖ and

―right‖ that seemed ―necessary.‖ Defendant said he was ―not looking at this [in] a

way everyone else here is looking at it. I feel I am competent, I can do this, and

I would appreciate my lawyer not to say anything.‖

Attorney Peters asked defendant whether, as Peters had told the court two

days earlier, defendant intended to ―act out‖ if counsel tried to present an

argument. Defendant said he would do so, albeit reluctantly. On this basis, Peters

again indicated he was making a ―conscious decision‖ to proceed as defendant

requested. Peters declared he would rather have defendant ―say his [piece] to the

jury‖ than display disruptive behavior to the jurors if counsel tried to overrule him.

In his testimony to the jury, defendant further explained his attitudes. He

told the jurors he had asked his lawyers not to speak on his behalf, and he

―appreciate[d]‖ their cooperation in that regard. He said that his personal code

demanded ―two eyes for every eye‖; that under such a code, the maximum penalty

42

was ―properly suited for this occasion‖ and was ―the right thing for [the jurors] to

do‖; that ―there‘s a price to pay for everything in life‖; and that, ―as part of the

game,‖ it was time he paid the price.

Thus, all record indications are that the omission of mitigating evidence

was the result of defendant‘s clear, consistent, cogent, and articulately expressed

wish to forego such evidence for moral and ethical reasons. There is no basis to

conclude that this decision stemmed from any conflict of interest adversely

affecting counsel‘s performance or that counsel, if unconflicted, would likely have

acted differently.12 Defendant essentially urges that counsel, and the court, were

obliged to ensure defendant received a penalty defense whether he wanted one or

not, but such is not the case. (E.g., Lang, supra, 49 Cal.3d 991, 1030-1031; see

also pt. E, post.) Similar considerations apply to defendant‘s argument that

conflict-free counsel would and should have overridden defendant‘s wish that

counsel present no argument to the jury on his behalf. Defendant‘s contrary

claims lacks merit.

iv. Defendant’s testimony.

Nor is there merit to defendant‘s claim that competent, unconflicted

counsel could, should, and likely would have raised valid objections to

defendant‘s testimony inviting the death penalty. A defendant, of course, has the

12 Defendant urges that the adverse conflict-related influence on Attorney

Peters‘s willingness not to present mitigating evidence in this case is

circumstantially demonstrated by the fact that, in at least one other capital trial,

Peters did present mitigating evidence against his client‘s wishes. (See Douglas v.

Woodford, supra, 316 F.3d 1049, 1087-1090 [finding, despite client‘s lack of

cooperation, that Peters conducted inadequate mental and social history

investigation, and noting that Peters had presented some sociological evidence

though client did not wish him to do so].) Unaware of the full circumstances in

the other case, we are unwilling to draw the strained inference defendant proposes.

43

absolute right to give such testimony, even against his counsel‘s wishes.

(People v. Nakahara (2003) 30 Cal.4th 705, 719 (Nakahara); People v. Webb

(1993) 6 Cal.4th 494, 534-535 (Webb); People v. Guzman (1988) 45 Cal.3d 915,

961-963 (Guzman).)

Defendant cites a case decided long after his trial, People v. Lancaster

(2007) 41 Cal.4th 50 (Lancaster), for the proposition that a defendant‘s testimony

seeking a death sentence is irrelevant to mitigation of penalty, and may thus be

properly excluded. Hence, he asserts, his counsel performed adversely, as the

result of their conflict, by failing to raise a relevance objection to his testimony.

As Lancaster itself observed, however, that decision is inapposite. There,

the defendant, ostensibly offering testimony in mitigation, sought to invoke

political and racial considerations beyond his own case by comparing his

― ‗wrongful[ ] convict[ion]‘ ‖ to that of Mumia Abu-Jamal, by suggesting that

African-American men who stand up and fight for their rights are labeled

― ‗crazy,‘ ‖ and by asserting that ― ‗[t]hey experiment on black people.‘ ‖

(Lancaster, supra, 41 Cal.4th 50, 101.) The trial court sustained the prosecutor’s

relevance objections to this testimony. We found no error, holding that the

defendant‘s assertions impermissibly strayed beyond the pertinent factors in

mitigation, i.e., the circumstances of his own offense and his own character and

background. (Id., at pp. 101-102, & cases cited.)

In doing so, Lancaster rejected the defendant‘s reliance on Webb‘s

statement that ― ‗a defendant‘s absolute right to testify cannot be foreclosed or

censored based on content.‘ ‖ (Lancaster, supra, 41 Cal.4th 50, 101-102, quoting

Webb, supra, 6 Cal.4th 494, 535.) We indicated that ―[this] statement must be

understood in context; it addressed Webb‘s contention that the trial court should

44

not have allowed him to testify in favor of a death sentence.‖ (Lancaster, supra, at

p. 102.)13 Lancaster thus made clear its holding did not undermine Webb‘s

premise that the defendant does have the right to proffer such testimony, even over

his counsel‘s objections. Defendant‘s claim must be rejected.14

c. Competence to stand trial.

Defendant urges his counsel‘s conflict resulted in their failure to ensure that

he was not incompetent when he entered his ―slow plea,‖ when he was tried on the

issue of penalty, and when he ―effectively stipulate[d]‖ to the death penalty by

presenting no mitigating evidence or argument and by taking the stand to agree he

deserved execution. He asserts that his mental and emotional condition

deteriorated seriously before and during the penalty proceedings as a result of the

―draconian‖ conditions of his incarceration, that his behavior made this

deterioration obvious, and that his counsel expressly realized his worsening mental

and emotional state was interfering with his ability to assist in his defense.

Nonetheless, he observes, his counsel assiduously avoided claiming he was

incompetent. They did so, defendant posits, because their concerns about their

personal involvement in the Nguyen murder conspiracy motivated them to curry

favor with prosecutors by ensuring that defendant‘s penalty trial would not be

postponed, and that he would promptly and predictably be sentenced to death.

13 The quoted sentence was followed by a statement that ―[t]he relevance of

[the defendant‘s testimony in Webb] was not challenged.‖ (Lancaster, supra,

41 Cal.4th 50, 102.) But this remark did not imply that defense counsel may raise

such an objection against his own client‘s voluntary testimony.

14 For similar reasons, we also find no merit to defendant‘s related argument

that the trial court had a sua sponte duty to prevent defendant‘s testimony.

45

Defendant‘s argument in this regard is closely intertwined with his related

claim that, based on the information available to it, the trial court erred by failing,

sua sponte, to declare a doubt of his competence, and to order a hearing on that

issue. Neither contention has merit.

i. Factual background.

The incompetence-related claims stem from the following facts: From the

moment of his federal arrest, defendant had been held in federal administrative

segregation, with severe limitations on his communications privileges, under the

terms of 28 Code of Federal Regulations part 501.3 (hereafter section 501.3). This

provision authorizes the United States Attorney General to specify such conditions

for a federal prisoner or detainee whose communications would present a

substantial risk of death or serious bodily injury to persons. Defendant‘s federal

plea agreement included his stipulation that such conditions would continue for

the duration of his federal prison term.

After his federal conviction, defendant was kept in federal custody, at the

Los Angeles Metropolitan Detention Center (MDC), under section 501.3

conditions, pending disposition of the instant capital murder charges. Control over

his privileges resided with the federal district court. While he was housed in the

MDC, and in violation of prior federal court orders, defendant was found in

possession of a pen and pencils, and a number of forbidden written

communications from defendant to other federal and state prisoners were

intercepted. Certain of these communications included threats against the

undercover officer who was instrumental in his federal conviction and an inmate

in the Orange County Jail.

As a result of these incidents, the federal court in January 2000 imposed

additional restrictions on defendant‘s already severe conditions of confinement.

46

Defendant was again prohibited from possessing writing materials; was essentially

denied contact with other inmates and most prison personnel; was forbidden

telephone communications except with counsel and, to a limited extent, with an

elderly grandmother; and was allowed no visitors except his counsel and an aunt.

As implemented by MDC staff, these restrictions resulted in defendant‘s

placement in a sealed single cell, without radio, television, computer, or general

(nonlegal) reading material. Two surveillance cameras kept constant watch on the

cell‘s interior, and the cell‘s lights remained on 24 hours a day. For fear defendant

would use his cell toilet as a means of inmate communication, he was not allowed

to flush the toilet; he was required to summon a guard to perform this task.

Defendant‘s counsel labored repeatedly, in several fora, and with limited

success, to obtain relief from these restrictions. In these efforts, counsel insisted

that while defendant had not become incompetent, the isolation, stress, and

sensory deprivation of his confinement were causing his emotional and mental

condition to deteriorate, thus interfering with defense preparation for the trial.

As early as July 23, 1999, the day defendant entered his ―slow plea‖ on

guilt and the special circumstance, counsel advised the court of defendant‘s

isolation and restrictions at the MDC, alluding to the ―horrendous‖ emotional

effects of these conditions. On July 30, 1999, counsel moved to continue the

penalty trial date, then scheduled for August 9, 1999, to late September or early

October 1999. Among other reasons, the written motion pointed to defendant‘s

severe confinement conditions as then in effect, noting that ―[t]his intensive

confinement and isolation has a very negative impact on his mental health,‖

―interfere[s] with [his] ability to organize his thoughts[,] and results in very hostile

emotion.‖

On October 8, 1999, the court held a hearing to determine what issues

required resolution before commencement of the penalty trial, then scheduled for

47

October 18. Among the matters addressed on October 8 were counsel‘s

difficulties in transporting defendant‘s father and uncle from Vietnam, and

courtroom security measures, including the possibility of physical restraints on

defendant and screening procedures for other persons entering the courtroom.

After discussion, the court announced a tentative decision that it would not

―wand‖ prospective jurors, but would ―wand‖ everyone else, i.e., ―anybody that

doesn‘t have a juror band,‖ before allowing them to enter.

At this point, defendant interrupted, insisting that if ―you wand my people,

you are going to wand everybody,‖ and that the court should not demonstrate

―prejudice[ ]‖ by ―separat[ing] my side from their side and all that other shit.‖

When the court repeated that it intended to ―wand‖ everybody who came into the

gallery, i.e., observers, defendant said, ―Fuck it, don‘t wand anybody. If you have

a problem with me, say so.‖ When the court responded that it had no problem,

defendant continued, ―I have done what I need to this court, and this court is going

to rush me into this, what kind of bullshit is that? Fucking nothing is going to be

done on the 18th, if we are going to say anything . . . .‖ When the judge told

defendant to ―get it out of your system,‖ defendant retorted, ―Play fucking games

and we will play fucking games.‖ At a subsequent hearing on October 18, 1999,

after granting a defense motion to continue the trial, the court warned defendant

that further outbursts like the one on October 8 would result in his removal from

the courtroom for the duration.

On February 4, 2000, counsel informed the court of the increased federal

confinement restrictions imposed in January. Counsel indicated that although

defendant was psychologically ―tough‖ and ―strong,‖ there was concern about the

impact on him of ―this virtual total isolation and lack of stimulation.‖

On February 25, 2000, the trial court attempted several times to obtain

defendant‘s time waiver so the penalty trial could be continued from March 13,

48

2000, to April 3, 2000. Each time, defendant professed not to understand and said

he needed time to talk to his lawyers. The court said ―[g]o ahead,‖ noting that

defendant‘s principal counsel, Peters, was present. However, defendant insisted

Peters was only one of his attorneys and indicated he ―need[ed] two.‖ During the

proceeding, Peters explained that defendant ―is very agitated this morning,‖ likely

because of the stress of his isolated confinement. Counsel asserted that

defendant‘s condition ―interferes with the ability to deal with him on a rational

basis, but I am not saying he is 1368 [i.e., incompetent], if he was, I would tell

you, of course, my obligation.‖15

On March 2, 2000, the trial court held an Evidence Code section 402

hearing on defendant‘s conditions of confinement and their effect on penalty trial

preparation. Among other things, the court heard testimony from Dr. Thomas, the

clinical psychologist retained by the defense to assist in determining defendant‘s

competency and to help develop mitigating penalty evidence.

Assessing a recent visit with defendant, Dr. Thomas indicated that, because

of his disappointment over the harsh federal sentencing of Victoria Pham, the

withdrawal of his privilege to communicate with Pham, and the other conditions

of his current confinement, he had become emotionally unstable and distrustful of

the defense team. According to Dr. Thomas, defendant was ―alternately enraged

and kind of irrational,‖ and his ―emotional lability‖ was ―impairing the process of

the defense all the way around.‖ Dr. Thomas cautioned that defendant ―was

certainly not out of touch with reality at all, and certainly not unable to discuss,‖

but she agreed with defense counsel that ―some aspects of this custodial situation

15 The reference is to section 1368, which sets forth the circumstances in

which trial proceedings must be suspended pending a determination of the

defendant‘s mental competence.

49

are causing [defendant‘s] emotions . . . , on a too frequent basis, to override his

judgment.‖

Dr. Thomas acknowledged that defendant was intelligent, a violent

sociopath, and a security risk whose own threats and rule violations had prompted

the current restrictions. Indeed, she agreed with the prosecutor that, in his anger

and frustration, defendant had ―articulated feelings [of] wanting to kill people . . .

includ[ing] prosecutors, witnesses, judges, [and] the lieutenant at the holding

facility.‖ Nonetheless, she opined that a continuation of the current confinement

conditions would cause defendant‘s ―ability to think clearly . . . to diminish,‖ that

―it is not going to get any better,‖ and that she was ―unable to move forward at this

time‖ with her work for the defense. Later that same day, Attorney Peters

represented in federal court that defendant was ―not incompetent, but he‘s

bumping up against that sort of thing.‖

At a pretrial hearing on March 29, 2000, Attorney Peters noted that, though

he was prepared to put on mitigating penalty evidence, ―we have for some time

talked about putting no penalty evidence on.‖ However, Peters cautioned,

defendant ―needs to be in a situation where he can make rational decisions about

this‖ and indicated defendant‘s conditions of federal confinement were interfering

with that process. Accordingly, Peters indicated, he intended to seek relief in the

Ninth Circuit Court of Appeals from the federal district court‘s harsh confinement

orders. Peters declared that ―if I wanted to play games I could declare him 1368

or something, but I don‘t believe he is 1368, he is just in a very difficult situation.‖

On March 30, 2000, as promised, counsel filed a petition for writ of

mandate and stay in the federal appeals court. (Hung Thanh Mai v. United States

District Court, Central District of California (9th Cir. No. 0-70364).) The petition

sought both an easing of defendant‘s confinement conditions and an order

postponing the state capital penalty trial until his mental state improved and

50

stabilized. The petition asserted that while defendant was not incompetent, the

psychological effects of his confinement had led to ―a breakdown in the attorney

client relationship,‖ and to counsel‘s inability ―to effectively communicate with

[him]‖ The Ninth Circuit denied the petition on April 7, 2000.

On April 11, 2000, while selection of the penalty jury in the instant case

was in progress, counsel filed a petition for mandate and stay in the California

Court of Appeal, Fourth District, Division Three. (Hung Thanh Mai v. Superior

Court of Orange County, G027290.) The petition sought a writ directing the trial

court to order defendant‘s transfer from the MDC to the Orange County Jail

pending the trial, and a restraint on further trial proceedings. According to the

petition, defendant‘s conditions of federal confinement were so restrictive that he

―has become increasing[ly] unstable, to a point where [he] is having great

difficulty assisting his Counsel in the defense of his case.‖ The petition cited Dr.

Thomas‘s conclusions that, due to the ―dehumanizing‖ circumstances of

defendant‘s federal confinement, he ―is becoming extremely volatile‖ and ―cannot

think clearly,‖ and that, as a consequence, Dr. Thomas could not complete her

penalty phase work. The Court of Appeal denied the petition the same day.

Jury selection was completed on the afternoon of April 11, 2000, and a jury

was sworn. Prior to adjournment, after the jurors had been dismissed for the day,

the court stated it had reviewed allegations in the Ninth Circuit writ proceeding

that defendant‘s confinement conditions had caused him to become mentally

unstable, such that his psychologist and attorneys were unable to prepare him for

trial. The court said it wished ―to note [its] observations for the record. The

defendant has appeared in this courtroom on April 3rd, April 6th, April 10th, and

April the 11th during jury selection. [¶] He has attentively followed roll call page

by page. He has read questionnaires and reviewed prospective juror lists. He has

made notes. He has appeared to consult with both his counsel concerning the lists

51

and questionnaires. I note that he has assisted Mr. Peters [defense counsel] in the

exercise of peremptory challenges. [¶] He has not given an appearance of being

nervous or upset. On the contrary, he has appeared to be rather calm and collected

during this four-day time frame.‖

Counsel responded that, as confirmed by Dr. Thomas, defendant was

experiencing various physiological symptoms, that he was overreacting to the

smallest difficulties, and that the frustration produced by his confinement

conditions meant he ―can‘t be objective‖ in dealing with the defense team.

Counsel also alluded to an ―outburst‖ that morning which had required a delay

until counsel could ―calm [defendant] down.‖

On the other hand, counsel reiterated that ―if [defendant] was 1368, I‘d say

that, I am not doing that because that would be a game, and I am not here to play

games.‖ ―[A]ll we are saying,‖ counsel insisted, was that the harsh confinement

conditions were ―bound to have an effect on somebody. Especially somebody

facing the death penalty.‖

The next morning, April 12, 2000, the court noted, in a chambers

discussion with counsel, that defendant had refused to come out of his cell at the

MDC unless ordered by the court to do so. Once transported to Orange County

and placed in the court‘s holding cell, the court observed, defendant ―has been so

loud that you can almost hear it in the courtroom.‖

Defense Counsel Peters indicated that defendant ―has good reason to yell

and scream,‖ but was now calm. Counsel said his experience was that ―[a]fter a

point in time [defendant] is able to vocalize enough of his anger that he gets back

to some sort of rationality.‖ Counsel indicated defendant was upset because,

several days earlier, he had seen the court clerk give coffee to the victim‘s family

members, which made him feel he was not on neutral ground, and was also irate

because his federal jailors had reneged on a promise to provide his lunch. Counsel

52

again indicated that defendant was not ―1368,‖ but was very upset and emotionally

―volatil[e],‖ and had limited control over his behavior.

The court asked if defendant had complaints about a biased jury — a

concern the bailiff had reported. Again the court indicated ―the record should

reflect I sat there and watched him exercise 20 peremptories through his counsel.‖

Counsel said this was not the issue, and insisted that defendant was not trying to

obstruct or delay. Counsel indicated that defendant well understood the reality of

his legal situation and ―knows what the [probable] outcome is,‖ particularly since

―we may put on no defense, and the evidence is overwhelming and awfully

brutal.‖ According to counsel, this reality, and defendant‘s isolated confinement,

were precisely why small problems like the lunch issue became ―magnified‖ and

―drive [defendant] crazy.‖ The court admonished counsel to remind defendant of

the court‘s prior warnings that it would not tolerate his ―disruptive conduct‖ and

―foul language,‖ and that further outbursts or disruption would result in his

exclusion from the trial.

Proceedings briefly resumed, but almost immediately, the court met with

counsel again in the hallway, out of defendant‘s presence. Defense Counsel Peters

said defendant was concerned he might not be able to control himself in the

courtroom, and had therefore asked to be shackled to prevent him from ―act[ing]

out.‖ Peters explained that when defendant first met with counsel that morning,

―he was talking how he was going to act up, that he had nothing to lose, which is

true.‖ Peters indicated there appeared to be grounds to accede to defendant‘s

wishes ―for his safety and my safety and [Cocounsel O‘Connell‘s] safety.‖ Still,

Peters observed, while he did not ―think [shackling] would be extremely

prejudicial,‖ he would try to dissuade defendant if he believed otherwise. The

prosecutor indicated he had no objection to the request, and the court granted it,

ordering that, while in court, defendant be restrained in ―Martin waist chains.‖

53

Defendant was brought into the courtroom, and the jurors were summoned.

As the court began to speak to the jury, defendant interrupted to say, ―Next time

you smile, throw a bigger smile my way.‖ The following colloquy ensued: ―THE

COURT: Pardon me, Mr. Mai? [¶] THE DEFENDANT: I am speaking to the

Burt family, they want to be smart asses. [¶] THE COURT: Don‘t be speaking to

the Burt family. [¶] THE DEFENDANT: That‘s right.‖

As the court resumed addressing the jury, defendant again interrupted,

stating that he ―need[ed] a break‖ and ―need[ed] to say something.‖ When the

court told him to be quiet, defendant implored Defense Counsel Peters to ―speak

up for me.‖ After a discussion with defendant, Peters explained to the court that

defendant ―just wanted to be assured it was your order that he be here this

morning.‖ When the court responded that it had so ordered, defendant asked, ―If

you have the power to do that, why don‘t you have the power to do anything

else?‖ The court advised defendant his counsel was speaking and warned

defendant not to disrupt, whereupon defendant requested that Peters ―ask [the

court] if you have the power to do that, why don‘t you have the power to do other

stuff?‖ Peters indicated he would make such an inquiry ―[a]t the appropriate

time,‖ and the court warned defendant again against further disruption.16

A short while later in the morning of April 12, 2000, the prosecutor was

outlining for the jury the evidence he expected to produce about the incident on

the morning of Officer Burt‘s murder in which defendant brandished a handgun at

another driver on the freeway. Defendant interrupted to say, ―And I would do it

16 Defendant‘s question is sensibly understood as asking why, if the court had

the authority to order him transported from the MDC to attend the trial, it did not

also have the authority to order that his conditions of confinement in that facility

be relaxed.

54

again.‖ The court ordered defendant to face toward the bench, and defendant

responded, ―Right.‖

On April 17, 2000, defendant disrupted the testimony of Mark Baker, who

stated that, in September 1995, he witnessed a violent domestic altercation

between defendant and Victoria Pham outside their apartment. When Baker

testified that during the struggle with Pham, defendant hit her with his fist and she

fell to her knees, defendant interrupted to shout, ―Shut the fuck up, I think you are

full of shit. If I fucking hit [her] with a fist, I would have knocked her fucking ass

on the floor. What are you talking about?‖ When the court attempted to admonish

defendant, he muttered, ―You want to say something, speak the fucking truth,‖ and

―[b]ullshit.‖

Baker then testified that when he tried to stop the fight by telling defendant

to ― ‗[k]nock it off, you motherfucker,‘ ‖ defendant went into his apartment and

returned with a machine gun. At this point, defendant interrupted Baker‘s

testimony to declare, ―I should have killed your fucking ass is what I should have

done, waste my goddamn time.‖

Shortly thereafter, automobile salesman Bachand testified that in June

1996, defendant and an accomplice abducted him at gunpoint during the test drive

of a Honda Prelude. As noted above, defendant interrupted to shout that

Bachand‘s testimony was ―bullshit,‖ because defendant had no incentive to steal a

―piece of shit Honda,‖ and that if defendant had been one of the carjackers, he

would have ―wasted [Bachand‘s] fucking ass.‖ Moments later, when Bachand

said defendant had warned that he and his companion were ―Asian, Vietnamese

Mafia,‖ defendant interrupted to mutter, ―Asian Mafia, stupid fuck.‖ The court

admonished defendant against further disruptions. Nonetheless, as Bachand

continued his testimony, defendant overturned the counsel table and was removed

to a detention area by the bailiffs.

55

On April 19, 2000, after the prosecution rested, defendant confirmed on the

record that, despite his counsel‘s advice and wishes, he declined to present any

mitigating evidence, opposed any effort by his counsel to speak in his behalf, and

intended to testify about his opinion of the appropriate penalty. The court warned

defendant that he was acting unwisely, that he could not appeal a resulting death

sentence on grounds of incompetence or attorney error, and that these decisions

were tantamount to suicide. In response, defendant insisted that he was ―not

suicidal,‖ felt he was competent, and was ―just doing the right thing that I feel

that‘s necessary.‖

Defendant confirmed he would ―act out‖ if counsel exercised their

prerogative to present an argument, though ―[i]t is not something I want to do.‖ In

response to a query from the court, defendant indicated he assumed his

understanding with his counsel was ―pretty firm.‖ He iterated that ―I just feel this

is right, and I am hoping my lawyer agrees to that.‖ On this basis, as noted above,

counsel announced he would accede to defendant‘s wishes.

ii. Applicable law.

― ‗Both the due process clause of the Fourteenth Amendment . . . and state

law prohibit the state from trying or convicting a criminal defendant while he or

she is mentally incompetent. (§ 1367; Drope v. Missouri (1975) 420 U.S. 162,

181; Pate v. Robinson (1966) 383 U.S. 375, 384-386; People v. Ramos (2004)

34 Cal.4th 494, 507.) A defendant is incompetent to stand trial if he or she lacks a

― ‗sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding — [or lacks] . . . a rational as well as a factual

understanding of the proceedings against him.‘ ‖ (Dusky v. United States (196[0])

362 U.S. 402, 402; see also Godinez v. Moran (1993) 509 U.S. 389, 399-400;

56

People v. Stewart (2004) 33 Cal.4th 425, 513.)‘ (People v. Rogers (2006)

39 Cal.4th 826, 846-847.)‖ (People v. Lewis (2008) 43 Cal.4th 415, 524 (Lewis).)

Under both the federal Constitution and state law, the trial court must

suspend criminal proceedings and conduct a competency hearing if presented with

substantial evidence that the defendant is incompetent. (People v. Elliott (2012)

53 Cal.4th 535, 583 (Elliott); People v. Ary (2011) 51 Cal.4th 510, 517; People v.

Rogers, supra, 39 Cal.4th 826, 847 (Rogers).) Substantial evidence of

incompetence exists when a qualified mental health expert who has examined the

defendant states under oath, and ―with particularity,‖ a professional opinion that

because of mental illness, the defendant is incapable of understanding the purpose

or nature of the criminal proceedings against him, or of cooperating with counsel.

(Lewis, supra, 43 Cal.4th 415, 525; People v. Stankewitz (1982) 32 Cal.3d 80, 92.)

The defendant‘s demeanor and irrational behavior may also, in proper

circumstances, constitute substantial evidence of incompetence. (Rogers, supra,

39 Cal.4th 826, 847.) However, disruptive conduct and courtroom outbursts by

the defendant do not necessarily demonstrate a present inability to understand the

proceedings or assist in the defense. (E.g., Elliott, supra, 53 Cal.4th 535, 583;

Lewis, supra, 43 Cal.4th 415, 525-526; People v. Medina (1995) 11 Cal.4th 694,

735 (Medina).)

Counsel‘s assertion of a belief in a client‘s incompetence is entitled to some

weight. But unless the court itself has declared a doubt as to the defendant‘s

competence, and has asked for counsel‘s opinion on the subject, counsel‘s

assertion that his or her client is or may be incompetent does not, in the absence of

substantial evidence to that effect, require the court to hold a competency hearing.

(§ 1368; Lewis, supra, 43 Cal.4th 415, 525; People v. Rodrigues (1994) 8 Cal.4th

1060, 1111-1112; People v. Howard, supra, 1 Cal.4th 1132, 1163-1164.)

57

By the same token, and absent a showing of ―incompetence‖ that is

―substantial‖ as a matter of law, the trial judge‘s decision not to order a

competency hearing is entitled to great deference, because the trial court is in the

best position to observe the defendant during trial. (Rogers, supra, 39 Cal.4th 826,

847.) ― ‗An appellate court is in no position to appraise a defendant‘s conduct in

the trial court as indicating insanity, a calculated attempt to feign insanity and

delay the proceedings, or sheer temper.‘ [Citations.]‖ (People v. Danielson

(1992) 3 Cal.4th 691, 727.)

iii. Discussion.

Here, the record discloses no basis to conclude that counsel, driven by a

conflict of interest, avoided seeking a competency hearing even though they

believed defendant was incompetent. Nor are there grounds to infer that

unconflicted counsel would likely have sought such a hearing. Indeed, as we

explain hereafter, the record contains no substantial evidence of defendant‘s

incompetence. Reasonably interpreted, it suggests counsel had a difficult client

whose own calculated acts had resulted in his severe conditions of confinement,

and whose frustration with the terms of his custody contributed to his anger,

emotional volatility, distrust of counsel, and frequent lack of cooperation with

them.

Counsel worked assiduously to ease these custodial conditions, urging in

several fora, and by vigorous advocacy, that the resulting emotional toll on

defendant was seriously interfering with defense efforts. But the record does not

indicate that, contrary to counsel‘s consistent representations, they knew or should

have known defendant‘s confinement had rendered him mentally unable, rather

than emotionally unwilling, to help with his defense. We have frequently

58

recognized the distinction, as counsel apparently did, and have made clear that an

uncooperative attitude is not, in and of itself, substantial evidence of

incompetence. (See, e.g., Elliott, supra, 53 Cal.4th 535, 583; Lewis, supra,

43 Cal.4th 415, 526; Medina, supra, 11 Cal.4th 694, 735; People v. Davis (1995)

10 Cal.4th 463, 527-528.)

Significantly, the defense psychologist, Dr. Thomas, never declared ―with

particularity‖ that, as the result of a mental disorder or disability, defendant was

unable to understand the proceedings or assist rationally in his defense. On the

contrary, she acknowledged defendant‘s intelligence, indicated he was ―not out of

touch with reality at all,‖ and agreed he was ―certainly able to discuss‖ his legal

situation. She suggested simply that the emotional instability stemming from his

custodial status sometimes caused him to be ―kind of irrational,‖ affected his

―ability to think clearly,‖ and made it difficult to obtain his cooperation.

Counsel made similar representations in court, additionally noting that

defendant understood the reality of his legal situation, and that once allowed to

fully vocalize his anger and frustration, he was usually able to calm down and

behave rationally. Counsel‘s concession that these circumstances did not amount

to mental incompetence does not indicate counsel performed adversely as the

result of a conflict of interest.

Defendant‘s ―self-defeating‖ outbursts in court also do not constitute

evidence that should and likely would have persuaded competent, unconflicted

counsel to seek a competency hearing. These episodes demonstrated that

defendant was often angry and resentful. But, as noted above, disruptive behavior

is not substantial evidence of incompetence unless, by its particular nature, it casts

doubt on the defendant‘s ability to assist in his or her defense. (E.g., Elliott,

supra, 53 Cal.4th 535, 583; Medina, supra, 11 Cal.4th 694, 735.) Here, aside

59

from one incident of momentary confusion over a time waiver, defendant‘s

courtroom demeanor, words, and conduct never indicated he did not understand

the proceedings or was actually unable to assist his lawyers.

Indeed, defendant‘s anger and resentment were often connected in an

understandable way to the trial proceedings. Thus, defendant protested when he

thought he was being rushed to trial, or worried that the court‘s security measures

might discriminate against ―my people,‖ or feared that court personnel were too

solicitous of the victim‘s family, or reacted to witnesses who were giving

damaging testimony against him. Defendant appeared capable of speaking up

when he felt the need to consult with his lawyers in light of courtroom

developments, and, at one point, he asked pertinent questions about the court‘s

authority over the conditions of his confinement.

Moreover, after reviewing allegations that the conditions of defendant‘s

confinement were seriously affecting his mental and emotional state, the trial court

made clear on the record that its observations of defendant did not indicate

incompetence. In particular, the court noted that defendant had calmly, but

actively, participated in the extended process of jury selection, reviewing

questionnaires and juror lists, making notes, and assisting counsel in the exercise

of peremptory challenges. In sum, certain of defendant‘s behavior, as disclosed by

the record, was rude, disruptive, and even menacing, but this behavior afforded no

substantial grounds upon which unconflicted counsel should and likely would

have pursued a claim of incompetence.

We reach a similar conclusion with respect to defendant‘s consistent and

firmly stated intention to dispense with mitigating evidence, present no argument,

and invite the jury to impose a judgment of death. A wish for the death penalty,

and an insistence on presenting no penalty defense, are not, by themselves,

evidence of incompetence sufficient to trigger competency proceedings. (E.g.,

60

People v. Blair (2005) 36 Cal.4th 686, 718; People v. Ramos, supra, 34 Cal.4th

494, 509.) Defendant made clear he understood the consequences of his decision,

and he expressed his reasons coherently, even eloquently, to the jury. He

explained he was motivated by reluctance to beg in court for sympathy or pity, by

his personal code of ―two eyes for every eye,‖ and by his belief that, as ―part of

the game,‖ the time had come to pay in full for his murder of Officer Burt. These

well-stated moral sentiments in no way belied a mental ability to understand the

proceedings and to assist in defending them. Defendant‘s attitude is not

substantial evidence he was incompetent. Accordingly, it provides no ground to

conclude that, as the result of a conflict of interest, counsel omitted to pursue a

potentially valid incompetency claim.17

17 Defendant notes Victoria Pham‘s claim that defendant became more violent

after a near-fatal car accident, causing the defense psychologist to suspect brain

damage. Citing Pate v. Robinson, supra, 383 U.S. 375, defendant urges that

evidence of a head injury with subsequent irrationality and behavioral changes

raises a ―red flag‖ regarding competence, and constitutes, as a matter of law,

sufficient evidence to require a competency hearing. But the scant evidence here

does not remotely compare with the evidence found in Pate to raise a bona fide

doubt of competence. Pate, convicted of killing his common law wife during an

irrational episode, had a history of severe disturbance dating back to a childhood

accident in which a brick fell on his head. His turbulent history included frequent

episodes of bizarre behavior, hallucinations, and delusions, a stay in a psychiatric

hospital, and the prior killing of his 18-month-old son, after which he tried to

commit suicide. At his trial, four witnesses testified, without contradiction, that he

was insane. This evidence, in combination, persuaded the high court that Pate

should have received a full inquiry into his competence.

Here, by contrast, there is no real indication that defendant‘s sociopathic

behavior, whatever its cause, had any logical connection to legal incompetence.

Moreover, the possibility of injury-related brain damage does not, in and of itself,

suggest inability to meet the legal standard for competence to stand trial. (See

Lewis, supra, 43 Cal.4th 415, 525; People v. Leonard (2007) 40 Cal.4th 1370,

1415-1416.) Though offered for a different purpose, the testimony of the

psychologist who suspected defendant‘s accident might have caused brain damage

(Footnote continued on next page.)

61

For similar reasons, we reject defendant‘s alternative argument that the trial

court had a sua sponte duty to declare a doubt of his competence, and to initiate

competency proceedings. As we have explained, the record discloses no

substantial evidence that defendant was mentally incompetent. No qualified

witness so testified; counsel‘s various descriptions of defendant‘s mental and

emotional state did not equate to incompetence; and defendant‘s observable

actions and decisions did not necessarily suggest he lacked the requisite ability to

participate rationally in his defense. Moreover, the trial court‘s day-to-day

observation of defendant‘s demeanor and conduct, including his episodes of

disruptive behavior, did not cause the court to doubt his competence — a fact the

court felt obliged to place on the record not once, but twice. Under these

circumstances, the court did not err by taking no action to determine whether

defendant was competent.

d. Advice to defendant.

Finally, defendant points to comments by Attorney Peters, at various points

in the record (never in the jury‘s presence), expressing the pessimistic view that

there was little realistic hope at either the guilt or penalty stages. Defendant

characterizes certain of these remarks as suggesting counsel‘s personal view that

defendant deserved the death penalty. Such comments, defendant asserts, are

circumstantial evidence that counsel, burdened by their conflict of interest, advised

(Footnote continued from previous page.)

suggested strongly that he was not mentally unable to understand the proceedings

and assist rationally in his defense. Nothing in Pate convinces us that effective,

unconflicted counsel should and likely would have used the information about

defendant‘s auto accident to raise a reasonable doubt of his competence.

62

defendant incompetently by overstating the hopelessness of his case, by

suggesting he had no viable defenses,18 and by urging him to submit the guilt and

special circumstance issues and forego the presentation of mitigating evidence and

argument at the penalty phase. Further, defendant asserts, Attorney Peters violated

his duties as an advocate by publicly stating his personal view that defendant

deserved the death penalty. (Citing, e.g., U.S. v. Swanson (9th Cir. 1991) 943 F.2d

1070, 1074; Osborn v. Shillinger (10th Cir. 1988) 861 F.2d 612, 626; State v.

Holland (Utah 1994) 876 P.2d 357, 358-361 & fn. 3.)

We are unconvinced. First, as defendant concedes, the record does not, for

the most part, disclose what advice counsel privately imparted to him. If anything,

however, the record indicates defendant himself insisted throughout the

proceedings, for reasons he cogently explained to the penalty jury, that once he

was brought to justice, his personal code of honor obliged him to pay for his

murder of Officer Burt without any effort to seek sympathy or mercy in a court of

law. The record also contains numerous indications that his attorneys did attempt

to get him to change his mind,19 but that he virtually coerced them to agree to his

wishes by threatening to engage in inflammatory disruptions before the jury if they

tried to overrule him.

Second, as counsel knew, there was indeed overwhelming evidence that

defendant gunned down a CHP officer during a routine traffic stop, ultimately

executing the officer by firing a bullet into the victim‘s head at close range while

18 In reality, defendant asserts, he had a strong defense to the peace officer

special circumstance, on grounds he was stopped and detained illegally by Officer

Burt. He further urges that a fully developed mitigating case, based on his escape

from Vietnam, his cultural difficulties in adjusting to life in the United States, and

his possible brain damage, might well have persuaded a jury to spare his life.

19 As Attorney Peters stated at the hearing on the automatic motion to modify

the death verdict, ―we spent hundreds of hours talking about that topic.‖

63

he lay helpless. Counsel could also reasonably conclude that a fact finder,

whether court or jury, would likely be unpersuaded by a special circumstance

defense that questioned the legality of the traffic stop. And, though a death

judgment was not inevitable, neither the facts of the capital crime nor the violent

and obstreperous personality defendant displayed during the penalty trial were

likely to engender sympathy with a jury deciding the issue of life or death.

Under these difficult circumstances, the record discloses no ground to

conclude that counsel rendered adverse or deficient assistance if they advised

defendant to preserve credibility at a penalty trial by allowing his counsel to tell

the penalty jury he ―had done the right thing‖ by not contesting guilt. Similarly, if

counsel suggested defendant should reserve for appeal the argument that the

preliminary hearing transcript contained insufficient evidence he was illegally

detained by the murder victim, this advice, too, was not adverse or incompetent.

Nor, on the basis of the record before us, did counsel perform adversely if they

offered the candid and reasonable prediction that a death judgment was likely,

regardless of any case in mitigation that could be put forward.

Finally, we do not interpret Attorney Peters‘s comments on the record as

concessions that he personally believed defendant deserved to die. Rather, they

appear as attempts, on behalf of a client who had resisted all efforts to portray him

sympathetically, to urge that, in the end, he was at least taking responsibility for

his actions, did not seek to avoid the consequences of his murder of Officer Burt,

and thus was not wholly irredeemable.

For all the reasons set forth above, we conclude the record fails to

demonstrate that defendant‘s trial counsel performed adversely as the result of a

conflict of interest, or that they otherwise rendered constitutionally inadequate

assistance. As a result, we need not, and do not, address defendant‘s extensive

argument that a ―presumption of prejudice‖ should apply to counsel‘s adverse

64

performance arising from the type of conflict defendant asserts here. (See, e.g.,

Mickens, supra, 535 U.S. 162, 171-174; Doolin, supra, 45 Cal.4th 390, 418,

fn. 20.)20

B. Sufficiency of special circumstance evidence.

Defendant contends that, in violation of ―state law and the Eighth and

Fourteenth Amendments,‖ the evidence supporting the special circumstance

finding that he intentionally killed a police officer engaged in the performance of

duty was legally insufficient. We disagree.

―In addressing a challenge to the sufficiency of the evidence supporting a

conviction, the reviewing court must examine the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence

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

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

[Citation.] The appellate court presumes in support of the judgment the existence

of every fact the trier could reasonably deduce from the evidence. [Citations.]‖

(People v. Kraft (2000) 23 Cal.4th 978, 1053; see also, e.g., People v. Prieto

(2003) 30 Cal.4th 226, 245; People v. Farnam (2002) 28 Cal.4th 107, 142-143.)

In the instant case, these inferences are aided by the presumption, applicable to

police officers except in the case of a warrantless arrest, that official duty was

regularly performed. (Evid. Code, § 664; see, e.g., Davenport v. Department of

Motor Vehicles (1992) 6 Cal.App.4th 133, 141.)

20 As the high court made clear in Mickens, and as defendant acknowledges, a

―presumption of prejudice‖ may apply to certain kinds of attorney conflicts,

including the active representation of competing interests, but even then, the

presumption does not apply until the defendant has demonstrated adverse

performance related to the conflict. (See Mickens, supra, 535 U.S. 162, 171-174.)

65

As indicated above, the preliminary hearing evidence indicated that the

traffic stop occurred in the early evening of July 13, 1996. Defendant‘s associate,

Chang Nguyen, testified that defendant gave him the following account of the

circumstances leading to the victim‘s death: Officer Burt stopped defendant for

failure to have his headlights on. Defendant did not show the officer his own

driver‘s license, but instead gave a false name. The officer learned that the

driver‘s license in that name was suspended. He thereupon advised defendant he

would have to tow the car, but first must perform an inventory search of the

vehicle. The officer opened the car‘s trunk, looked inside, and told defendant he

was under arrest. Defendant, aware that he had crime evidence in the trunk and

determined not to leave a witness to a third strike offense, then proceeded to shoot

the officer.

Defendant‘s insufficient-evidence claim proceeds on the premise that, in

order for the peace officer special circumstance to apply, the officer must have

been performing his duties ―lawfully‖ at the time he was killed. (See pt. A.4.a,

ante.) Defendant does not seriously argue the record lacks evidence the officer‘s

actions during the traffic stop were lawful. However, he urges the record of the

preliminary hearing, on which the special circumstance finding was made, fails to

include evidence from which a rational fact finder could conclude beyond

reasonable doubt that Officer Burt had legal cause to stop and detain him at the

outset.

Because Officer Burt‘s death at defendant‘s hands prevented the victim

from explaining, in sworn testimony, the reason and basis for the stop, the only

evidence on that issue came from Nguyen, who testified — without objection from

the defense — that defendant said ―he was driving and he thought he had his light

[sic] on, but he got pulled over by [a] California Highway Patrolman for not

having his light [sic] [on].‖ Defendant‘s statement to Nguyen was amply

66

sufficient to allow a fact finder — here, a learned trial judge — to infer, first, that

failure to have his headlights on was the reason defendant was stopped; second,

that he understood he should have had his lights on; and third, that he actually did

not have them on. No evidence disputed or contradicted these inferences.21

Other evidence also supports them. In 1996, as now, the law required a

motor vehicle‘s headlights to be on when the vehicle was driven between one-half

hour after sunset and one-half hour before sunrise. (Veh. Code, §§ 280, 24400,

38335.) Bernice Sarthou testified at the preliminary hearing that she observed the

traffic stop involving defendant and Officer Burt as she pulled into an adjacent

21 Defendant concedes his account to Nguyen of his own actions leading to

the shooting of Officer Burt were declarations against interest, and were thus not

made inadmissible for their truth by the hearsay rule. (Evid. Code, § 1230.)

However, he asserts that Officer Burt‘s ―no headlights‖ statement to him, as

related to Nguyen, was not offered by the prosecution for its ―truth,‖ but for the

―non-hearsay purpose of explaining and putting into context [defendant‘s]

admissions.‖ This claim is based on the prosecutor‘s response to a defense

―multiple hearsay‖ objection to later testimony by Nguyen that Officer Burt

advised defendant he would have do an inventory search on defendant‘s car. The

prosecutor said he understood that ―the layer from the officer to the defendant is

not for the truth of the matter.‖ The court agreed, indicating that evidence of

Officer Burt‘s ―inventory search‖ statement was presented to make the defendant‘s

admissions ―meaningful,‖ and overruled the objection. However, as noted, the

defense made no hearsay objection when Nguyen testified defendant said that

Officer Burt stopped him because his headlights were off. Moreover, the hearsay

rule did not make inadmissible Officer Burt‘s statement as evidence of his intent

and purpose — i.e., his state of mind — in stopping defendant. (Evid. Code,

§ 1250, subd. (a)(2).) And to the extent Officer Burt‘s out-of-court ―no

headlights‖ statement was ―testimonial‖ (see Crawford v. Washington (2004)

541 U.S. 36), the doctrine of ―forfeiture by wrongdoing‖ precludes defendant from

claiming his constitutional rights were violated because he was unable to confront,

in court, an out-of-court declarant whom he killed, as the undisputed evidence

shows, to prevent the declarant from appearing as a witness against him. (See

Giles v. California (2008) 554 U.S. 353, 376-377.)

67

restaurant around 8:30 p.m. on July 13, 1996. As noted above (ante, fn. 8), we

have taken judicial notice of the indisputable fact that sunset occurred in Fullerton

on that date at 8:04 p.m. On this evidence, a rational fact finder could infer that, at

the time the stop occurred, dusk was approaching, and that Officer Burt thus

reasonably concluded the law required defendant‘s headlights to be on.

Defendant stresses Sarthou‘s insistence, on both direct and cross-

examination, that when she first observed defendant and Officer Burt, she was

wearing her sunglasses because the sun had not yet set. But this testimony

contradicted Sarthou‘s equally consistent time estimate, as compared with the

actual time of sunset on July 13, 1996. It was also inconsistent with defendant‘s

statement to Nguyen that ―he thought he had his light[s] on.‖ As between

Sarthou‘s contradictory recollections, and considering the totality of relevant

evidence, the fact finder was not obliged to credit Sarthou‘s ―sun was still up‖

testimony. Instead, the fact finder could believe her assertion she first observed

the traffic stop at a time that was, in fact, approximately one-half hour after sunset.

There was sufficient evidence to support a determination that Officer Burt acted

lawfully when he stopped defendant‘s vehicle on July 13, 1996.22

22 Evidence adduced at the penalty trial does not alter these conclusions.

Sarthou testified, consistently with her preliminary hearing account, that she

observed the traffic stop around 8:30 p.m. and was wearing sunglasses. Other

witnesses to the traffic stop gave time estimates that varied between 8:00 p.m. and

8:30 p.m. Eyewitness Benjamin Baldauf, who agreed 8:30 was ―about the right

time frame,‖ also said the lighting was ―long on shadows, just before dark‖.

A CHP dispatcher testified that he received a ―license check‖ call from Officer

Burt around 8:30 p.m.

68

C. Claim of biased juror.

Defendant urges that his rights under the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, and under article I, section 16 of

the California Constitution, were violated by the seating of Juror No. 12, who, he

asserts, was actually biased on the issue of penalty. Defendant acknowledges that

his lawyers did not challenge Juror No. 12 for cause, use a peremptory challenge

to excuse the juror,23 or express dissatisfaction with the jury as sworn. (E.g.,

People v. Carasi (2008) 44 Cal.4th 1263, 1290; People v. Bonilla (2007)

41 Cal.4th 313, 339; People v. Hillhouse (2002) 27 Cal.4th 469, 487; People v.

Crittenden (1994) 9 Cal.4th 83, 121 & fn. 4 (Crittenden).) Nonetheless, defendant

contends the state is constitutionally disentitled to carry out a death judgment

joined by a biased juror. Alternatively, he asserts that his counsel‘s failure to

challenge Juror No. 12 for cause, or to use a peremptory challenge against this

juror, constituted ineffective assistance. In any event, he insists the court should

have excused the juror sua sponte.

However the issue is framed, we are unpersuaded by the merits of

defendant‘s argument that Juror No. 12 demonstrated actual penalty bias. Hence,

defendant‘s claim must be rejected.

― ‗The state and federal constitutional guarantees of a trial by an impartial

jury include the right in a capital case to a jury whose members will not

automatically impose the death penalty for all murders, but will instead consider

and weigh the mitigating evidence in determining the appropriate sentence. . . . If

the death penalty is imposed by a jury containing even one juror who would vote

automatically for the death penalty without considering the mitigating evidence,

―the State is disentitled to execute the sentence.‖ [Citation.]‘ ‖ (People v. Boyette

23 It is undisputed that defendant exhausted his peremptory challenges.

69

(2002) 29 Cal.4th 381, 416 (Boyette), quoting People v. Weaver (2001) 26 Cal.4th

876, 910 (Weaver).)

But strong views for or against the death penalty do not necessarily provide

a basis to excuse a prospective juror on the ground of actual bias. Instead, ― ‗the

law permits a prospective juror to be challenged for cause [as biased on the issue

of capital punishment] only if his or her views [on that subject] ―would ‗prevent or

substantially impair the performance of his [or her] duties as a juror‘ ‖ in

accordance with the court‘s instructions and the juror‘s oath.‘ (People v. Blair

(2005) 36 Cal.4th 686, 741, quoting [Wainwright v. ]Witt [(1985)] 469 U.S. [412,]

424.)‖ (People v. Martinez (2009) 47 Cal.4th 399, 425 (Martinez).) That a

prospective juror might weigh the aggravating and mitigating evidence in light of

his or her death penalty views is not necessarily a ground for exclusion. Opinions

about the death penalty may disqualify a penalty juror only if they would prevent

the juror from engaging in the weighing process and deliberating the issue of

penalty. (E.g., Martinez, supra, at p. 427; People v. Stewart (2004) 33 Cal.4th

425, 446.)

A prospective juror‘s responses on these issues may be conflicting or

ambiguous, or may demonstrate understandable confusion about the complexities

of death penalty law. Such responses do not necessarily require, or justify, a

juror‘s excusal for bias. (E.g., Boyette, supra, 29 Cal.4th 381, 416; Weaver, supra,

26 Cal.4th 876, 910; People v. Fudge (1994) 7 Cal.4th 1075, 1094.) And even

jurors with very strong views about the death penalty are qualified to serve if they

affirm they will set those views aside, as necessary, in favor of applying the law

and instructions. (E.g., Martinez, supra, 47 Cal.4th 399, 431; Lewis, supra,

43 Cal.4th 415, 488.)

Juror No. 12‘s answers on the juror questionnaire indicate he harbored

strong pro-death views, both generally and about this particular case. On the other

70

hand, he asserted his belief that he could set aside his feelings, follow the court‘s

instructions, and be a fair and impartial juror.

In response to a question about how, if at all, he had become familiar with

the case, Juror No. 12 indicated his wife‘s cousin was a Fullerton fireman who had

been called to the shooting scene and tried to save Officer Burt. Asked what

opinions, based on this information, he had formed about the appropriate sentence,

Juror No.12 answered, ―My opinion — death sentence.‖ On the other hand, Juror

No. 12 answered ―yes‖ to the question whether he could set aside his prior

knowledge of the case and decide it on the evidence presented in court ―and the

law given to you at the conclusion of the case.‖ To the question whether he could

set aside any preformed opinions about the case and decide it on the evidence and

law presented during trial, Juror No. 12 responded, ―I think so.‖

In response to a question whether he had recently followed other criminal

cases in the news media, Juror No. 12 answered ―yes,‖ and explained he had

followed ―[t]he appeals to let the woman in Texas be excused from [the] death

penalty because she found God.‖ A follow-up question inquired whether a case or

cases the prospective juror had followed might affect his or her ability to be a fair

and impartial juror. Juror No. 12 checked ―yes‖ and indicated, ―[if] defendant said

he‘d found God and should be spared for that reason.‖

Following these questions and answers, the questionnaire included a section

titled ―Attitudes About the Death Penalty.‖ This section was prefaced by an

extended description of the nature of a capital penalty trial. The preface explained

that the jury was to determine the appropriate penalty by ―weighing‖ various

aggravating and mitigating (―bad and good‖) things about the crime, the

defendant, and his background, ―including a consideration of sympathy.‖ It

admonished that the weighing process was not quantitative, but qualitative, and

that, to fix the penalty at death, the jury must be persuaded the aggravating factors

71

―are so substantial in comparison with the mitigating factors‖ that death, rather

than life without parole, was warranted.

The questionnaire than asked whether, ―[b]ased on the above,‖ the

prospective juror‘s views would cause him or her to automatically vote for life or

death. Juror No. 12 answered ―no‖ in each case. When queried as to his

―GENERAL FEELINGS about the death penalty,‖ Juror No. 12 responded, ―I‘m

for it.‖ Asked whether he thought the death penalty was used too seldom, too

randomly, or too often, Juror No. 12 stated, ―Too many appeals that take too

long.‖ Asked whether he could set aside his personal feelings about what the law

ought to be and follow the court‘s instructions, Juror No. 12 checked ―yes,‖ and

wrote, ―I‘m for the death penalty but if [the] court proved to me that defendant

should be spared death — I might not vote death.‖

The next questionnaire section was titled ―Penalty Trial – Factors to

Consider.‖ The single question in this section was preceded by an explanation that

persons selected to serve as penalty jurors would receive instructions listing the

relevant factors in the penalty determination. These factors were then set forth,

including ―[a]ny other circumstance which extenuates the gravity of the crime

even though it is not a legal excuse for the crime (and any sympathetic or other

aspect of the defendant‘s character and record) that the defendant offers as a basis

for a sentence less than death, whether or not related to the offense for which he is

on trial.‖ The questionnaire then asked if the prospective juror felt that any of the

listed factors should ―never‖ be considered in determining the appropriate

punishment. Juror No. 12 answered ―no.‖

72

Juror No. 12 expressed similar attitudes during oral voir dire.24 While he

was in the jury box during jury selection, the court posed three questions,

addressed to the group in the box. Paraphrased, these questions were whether the

prospective juror (1) could personally vote for death if he or she believed that was

the appropriate punishment, (2) could personally vote for life without parole if he

or she believed this was a case where death was not appropriate, and (3) would

carefully consider both options before deciding. The court then asked several

prospective jurors individually, including Juror No. 12, how they would respond to

those questions. Juror No. 12 answered, ―Yes to all three.‖

The court addressed Juror No. 12 about his ―I think so‖ response to the

questionnaire inquiry whether he could set aside preformed views and decide the

case on the evidence and the law. ―Can you assure counsel and [me],‖ the court

asked, ―that you can set aside any preconceived opinion and decide this case —? ‖

Juror No. 12 interjected, ―I think I can, if they can give me a good reason that

somebody shouldn‘t be put to death, I believe I would vote in that direction.‖ The

court then asked, ―So your position is that they have to prove why somebody

should not be put to death?‖ Juror No. 12 answered, ―Uh-huh.‖

Shortly thereafter, the court addressed general remarks to the panelists,

including Juror No. 12, who were in the jury box. The court indicated that it

would provide certain instructions throughout the trial and at its conclusion. ―It is

24 In response to the court‘s biographical inquiries during voir dire, Juror No.

12 indicated that he lived in Buena Park, was 43 years old and single, and had

completed high school and ―a couple years in college.‖ He stated he had worked

at Disneyland for the past 24 years, and for the Orange County Republican Central

Committee ―for a couple years before that.‖ Juror No. 12 also indicated he had an

uncle who was a retired Los Angeles County deputy sheriff, and another uncle

―who spent about five years in the Whittier police force . . . back in the late

1960‘s.‖

73

important,‖ the court declared, ―that I have your assurance that you will follow my

instructions and rulings on the law and will apply that law to this case. [¶] [To]

[p]ut it somewhat differently, whether you approve or disapprove of the court‘s

rulings or instructions, it is your solemn duty to accept as correct these statements

of the law. You may not substitute your own idea of what you think the law ought

to be. [¶] Is there any member of the panel that will not follow the law as it is

given to you in this case?‖ Juror No. 12 made no response indicating he would

not do so.

Continuing its general inquiries, the court asked the panelists in the jury

box, including Juror No. 12, whether ―any of [their] close friends or relatives [had]

ever served as a juror on a capital case; death penalty case.‖ Juror No. 12 raised

his hand and stated, ―My immediate boss at work that I have known for about 20

years, just did one out in Riverside County.‖ The court asked whether this

individual had discussed the Riverside County trial with Juror No. 12 after it was

over. Juror No. 12 declared, ―He said that it, you don‘t know what it is like, you

have an opinion about it until you get there and actually have to make that

decision, you just don‘t, you can‘t understand it.‖25

After further questions directed to various panelists sitting with Juror No.12

in the jury box, the court again asked the group as a whole, ―Does any juror know

of any other reason, or has anything occurred during this questioning period that

might make you doubtful that you would be a completely fair and impartial juror

25 Asked by the court if anything Juror No. 12 discussed with the Riverside

County juror about the latter‘s experience ―would have any bearing on how you

would decide this case,‖ Juror No. 12 answered, ―No.‖ But considered in the

context of his answer to the preceding question, the negative response indicates

that these discussions had not reinforced any preconceived pro-death attitudes on

Juror No. 12‘s part, and, if anything, had instead influenced him to keep an open

mind.

74

in this case, or why you should not be on this jury? If there is, it is your duty to

disclose the reason at this time.‖ Juror No. 12 did not respond.

Attorney Peters asked Juror No. 12 about his questionnaire reference to

delays in the capital penalty system. Peters inquired whether ―that [is] going to

leak over into the facts of this case, the law involved in this case.‖ Juror No. 12

said, ―I don‘t think so.‖ Peters suggested, ―That‘s more of a political problem than

anything else?‖ Juror No. 12 answered, ―Yeah.‖ Peters queried whether Juror No.

12 could ―weigh the aggravating and mitigating, whatever those turn out to be, and

render a fair verdict.‖ Juror No. 12 responded, ―I think so.‖ Without further

questions to Juror No. 12, the defense passed the panelists in the box, including

Juror No. 12, for cause.

The prosecutor asked Juror No. 12 whether, ―[f]rom what you heard about

the case, what it is about, a police officer victim, do you think you could sit and be

that kind of juror we were talking about who can consider both [penalties], who

can accept the death penalty and vote or impose either one.‖ Juror No. 12

answered, ―Yes.‖ When the prosecutor then posited that ―[y]ou think you can do

that?,‖ Juror No. 12 responded, ―Yes, I do.‖ Without further questions to Juror

No. 12, the prosecution passed the panelists in the jury box, including Juror No.

12, for cause.

Under these circumstances, Juror No. 12‘s written and oral responses did

not demonstrate, as a matter of law, that his death penalty views would ― ‗prevent

or substantially impair‘ the performance of the juror‘s duties as defined by the

court‘s instructions and the juror‘s oath.‖ (Crittenden, supra, 9 Cal.4th 83, 121.)

Juror No. 12 expressed unequivocal general support for the death penalty,

conceded his pretrial impression that death was appropriate in this case, and

asserted he started from the perspective that the defense had the burden of proving

otherwise. However, advised at several points that he must follow the law and

75

instructions regardless of his personal views, and must frankly disclose if he felt

unable to do so, he consistently indicated that he could and would subordinate his

views, carefully weigh and consider the aggravating and mitigating evidence as

instructed, vote for either death or life without parole as appropriate, and sit fairly

in accordance with the juror‘s oath. He further noted the insight of a colleague

who had recently served as a capital juror that, whatever one‘s preconceived

notions, it was impossible to understand the solemn realities of that role until one

had experienced it.

The record thus fails to establish that Juror No. 12 was a biased juror. This

conclusion disposes of defendant‘s contentions that the trial court had a sua sponte

duty to excuse Juror No. 12, and that his counsel was incompetent for failing to

challenge this juror.

The first of these claims fails for the following reasons: Had the trial court

— which was able to observe Juror No. 12‘s demeanor and evaluate his credibility

under voir dire questioning — denied a challenge for cause on the ground of

penalty bias, its ruling would have been upheld on appeal as supported by

substantial evidence, and within the court‘s discretion. (E.g., Martinez, supra,

47 Cal.4th 399, 426; Lewis, supra, 43 Cal.4th 415, 483; Weaver, supra, 26 Cal.4th

876, 910.) If the court was not required to sustain a bias challenge against Juror

No. 12, it was certainly not obliged, on its own motion, to excuse this juror for

bias.

By the same token, defendant cannot show on the appellate record that

competent counsel should and would have challenged Juror No. 12 on this ground.

(People v. Lucas (1995) 12 Cal.4th 415, 485.) So far as appears, counsel could

reasonably conclude there was no merit in such a challenge. (Ibid.) Nor does the

record demonstrate the absence of any plausible tactical reason for counsel‘s

failure to raise the issue on the chance of a favorable ruling. Counsel, who were

76

also able to observe Juror No. 12‘s personality and demeanor, might have formed

the impression that, despite his views, this panelist would indeed perform fairly,

and would not be a liability as a sitting juror. (Ibid.) We find no basis to reverse

the penalty judgment.

D. Wheeler/Batson claim.

Defendant urges his state and federal constitutional rights to a jury drawn

from a representative cross-section of the community, to equal protection of the

law, and to a fundamentally fair and reliable trial (U.S. Const., 5th, 6th, & 14th

Amends., Cal. Const., art. I, §§ 7, 16) were violated when the trial court

erroneously denied his objection, under People v. Wheeler (1978) 22 Cal.3d 258

(Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson), that the prosecutor

had used peremptory challenges to excuse African-American prospective jurors

for racially discriminatory reasons. (Wheeler/Batson claim). We reject the

contention.

l. Facts.

During jury selection, defense counsel objected that the prosecutor ―[had]

excused all the Black jurors.‖ The court asked if counsel was making a ―Wheeler

motion,‖ and counsel replied, ―Yes.‖26 Defense counsel and the prosecutor agreed

the prosecutor had exercised peremptory challenges to excuse prospective jurors

M.H., P.F., and L.P., the only three African-American members of the jury pool.

The court asked the clerk to retrieve the questionnaires of these panelists. While

the clerk was doing so, the court tentatively found a prima facie showing of

discriminatory intent.

26 The reference to Wheeler sufficed to preserve defendant‘s claim under

Batson as well. (Vines, supra, 51 Cal.4th 830, 847, fn. 7; People v. Yeoman

(2003) 31 Cal.4th 93, 117-118.)

77

On reflection, the court backtracked from that finding. It suggested the

defense was required to demonstrate a ―strong likelihood‖ of discrimination in the

excusal of these prospective jurors, and expressed doubt such a likelihood was

established by the mere fact that ―all three [were] of the same racial group.‖

Defense counsel responded there was further ―circumstantial evidence‖ of

discrimination, i.e., counsel‘s recollection that, except for their race, these

prospective jurors were indistinguishable from others the prosecution had failed to

excuse. Ultimately, though the court found the prima facie issue ―marginal,‖ it

asked the prosecutor to give his reasons for the excusals.

As to M.H., the prosecutor indicated, ―[M.H.] is single. She has no

children. She is younger than the juror I prefer. She is in her 30‘s. She is also,

her attitude regarding the death penalty was personal and emotional, not

philosophical. She was the one who talked about, if it was my family I could

understand it. But primarily the reason [is] she is young, single and no children.

There [are] no other jurors on the jury pr

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