The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT WARD FRAZIER,
Defendant and Appellant.
S148863
Contra Costa County Superior Court
5-041700-6
August 5, 2024
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Kruger, Groban, and Jenkins
concurred.
Justice Liu filed a dissenting opinion.
Justice Evans filed a dissenting opinion.
PEOPLE v. FRAZIER
S148863
Opinion of the Court by Guerrero, C. J.
A jury convicted Robert Ward Frazier of the murder (Pen.
Code, § 187; count 1),1 forcible rape (§ 261, subd. (a)(2); count 2),
and forcible sodomy (§ 286, subd. (c)(2); count 3) of Kathleen
Loreck. The jury also found true two felony-murder special-
circumstance allegations: murder in the commission of rape
(§ 190.2, subd. (a)(17)(C)) and murder in the commission of
sodomy (§ 190.2, subd. (a)(17)(D)). At the penalty phase of the
trial, the jury returned a verdict of death. The trial court denied
defendant’s automatic motion to reduce the death verdict
(§ 190.4, subd. (e)) and sentenced him to death.2 Defendant’s
appeal is automatic. (§ 1239, subd. (b).)
At trial, the People presented evidence that defendant
killed Loreck by repeatedly hitting her in the head with an iron
bar while she was on a walk. The People also presented
evidence that defendant raped and sodomized Loreck. Police
discovered Loreck within hours after the attack, while she was
still alive. However, she died later that day. Defendant’s DNA
was found on both vaginal and rectal swabs taken from Loreck
as well as on a bloodied iron bar found at the crime scene.
1
Unless otherwise stated, all subsequent statutory
references are to the Penal Code.
2
The court stayed execution of the sentences on the other
offenses pursuant to section 654.
1
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
On appeal, defendant raises claims pertaining to: (1) the
trial court’s excusal of a prospective juror for cause due to the
prospective juror’s views on the death penalty; (2) the trial
court’s denial of defendant’s request for individually
sequestered voir dire; (3) the trial court’s giving of a jury
instruction on a defendant’s flight from the scene of a crime;
(4) the trial court’s denials of defendant’s requests to represent
himself during the penalty phase; (5) the trial court’s denials of
defendant’s requests to represent himself during the postverdict
proceedings; (6) the trial court’s purported violation of
defendant’s Sixth Amendment right to choose the objective of
his defense; and (7) the legality of the death penalty statute. We
affirm the judgment in its entirety.3
3
While this appeal was pending, and after we issued a
letter advising the parties that this court could soon set the case
for argument, defendant filed a motion to stay the appeal and
remand the matter to the trial court to allow him to file a motion
pursuant to the California Racial Justice Act of 2020 (Pen. Code,
§§ 745, 1473, 1473.7; Stats. 2020, ch. 317, § 1–5) (RJA).
Applying the factors described in People v. Wilson (Aug. 5, 2024,
S118775) ___ Cal.5th ___, we conclude defendant has failed to
establish good cause for staying the current appeal. For reasons
explained in Wilson, because defendant seeks to adjudicate an
RJA claim that is not intertwined with the issues on appeal, he
“does not need a stay of the appeal or a remand to the superior
court to raise [the RJA claim]” in a petition for writ of habeas
corpus. (Wilson, at p. ___ [p. 104].) In addition, like the
defendant in Wilson, defendant “is represented by the Office of
the State Public Defender (OSPD)” (id. at p. ___ [p. 109]), and
defendant “has not shown that OSPD would be unavailable to
litigate his claim[] if [it was] to be raised instead through a
limited-purpose habeas petition addressed exclusively to [that
claim].” (Ibid.) Further, as in Wilson, we find that a stay and
remand at this late stage of the appellate proceedings to pursue
2
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase Evidence
1. The prosecution’s evidence
a. The attack and its immediate aftermath
On May 13, 2003, around 1:00 p.m., Loreck left her
workplace in Concord to take her regular lunchtime walk on a
nearby trail. As Loreck walked, she spoke on a cell phone with
her husband. Less than an hour after the call began, Loreck’s
husband heard a “very low sigh” that sounded to him “like
breathing out.” Thereafter, Loreck’s husband heard a
“disturbance” that made him think that Loreck “might have
dropped the phone.” 4 After Loreck did not respond to her
husband, he grew very worried. Loreck’s husband attempted to
call her back but was unable to reach her. A few minutes later,
Loreck’s husband called his father — who also worked at
Loreck’s workplace — and told him what had happened.
Loreck’s father-in-law unsuccessfully looked for her in the
surrounding area. He then returned to their workplace and told
a manager about the situation. Loreck’s father-in-law and the
manager decided to call the police.
Just after 3:00 p.m. that same day, a police officer received
a dispatch concerning Loreck’s disappearance. Within five
minutes, the officer began searching for Loreck near her
an RJA claim would likely “cause significant delay in the
resolution of his appeal.” (Wilson, at p. ___ [p. 111].)
Accordingly, we now deny defendant’s motion. Our denial is
without prejudice to defendant filing a petition for writ of habeas
corpus raising an RJA claim as outlined in Wilson.
4
The parties stipulated that the phone call ended at
1:48 p.m.
3
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
workplace. The officer observed a red stain that appeared to be
blood near a portion of the paved trail where Loreck had been
walking. The officer followed what appeared to be drag marks
in nearby vegetation down a dirt path off the paved trail,
through a cut in a fence, until he reached an area near a tree.
Once there, the officer saw Loreck lying near the bottom of the
path about 12 feet from the tree.
The officer observed that Loreck’s clothing had been
removed from her navel to her calves and that her face was
completely covered in blood. Loreck’s breathing was labored,
and her pulse was rapid. Blood pooled beneath her head, and
she bled from both ears. She had a very large gash on her scalp
and many other wounds. Nearby, the officer observed a two-foot
long piece of iron that appeared to have blood on it sitting next
to a pool of blood.
Loreck died at the hospital at 4:45 p.m. that same day. A
forensic pathologist performed an autopsy and determined that
she had sustained numerous blunt force injuries to the back of
her head and one injury near her right temple. In addition to
skull fractures and bleeding on the brain, Loreck suffered
swelling of the brain that caused her death.
b. Evidence of defendant’s commission of the
offenses
Several witnesses saw defendant near the trail around the
time that the crimes occurred. Around 12:30 p.m., one of
Loreck’s coworkers was taking a walk and saw defendant close
to Loreck’s workplace near the trail on which Loreck would later
walk. Defendant appeared disheveled and was acting strangely.
4
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
Around 1:00 p.m., on his way back to work, the same
coworker saw Loreck on the trail. Loreck was talking on a cell
phone and waved to the coworker as she walked by.
The coworker continued on the trail for five to 10 minutes
and again saw defendant near the same spot where the coworker
had initially seen him. Defendant was holding a jacket across
his chest. A few days later, the coworker saw a bloodstain on
the paved trail about five to 10 feet from where he had observed
defendant holding the jacket.
A second of Loreck’s coworkers went for a lunchtime run
on the same trail on the day of the offenses. At the beginning of
his run, the runner observed defendant sitting on the side of the
trail. On his way back, the runner again noticed defendant.
This time, the runner also saw Loreck, who was about 10 yards
away from defendant.
A third coworker of Loreck’s also took a lunchtime walk on
the trail on the day of the offenses. He saw a man resembling
defendant on two occasions near the location on the trail where,
in the aftermath of the offenses, the coworker saw a bloodstain.
On the day of the offenses, at around 11:30 a.m., a bicyclist
rode on some bike trails near Loreck’s workplace. The bicyclist
noticed defendant nearby. On his way back from the bike trails
to the paved trail where Loreck later walked, the bicyclist saw
defendant again. While the bicyclist was taking a break from
his ride, defendant approached him and asked for a cigarette.
The bicyclist gave defendant a cigarette and they each smoked
a cigarette while chatting. After about 20 minutes, the bicyclist
gave defendant another cigarette, which he saw defendant light
before the bicyclist left. Police later collected three cigarette
butts from the same general area as the crime scene.
5
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
A woman with whom defendant had been periodically
staying saw defendant between 5:00 p.m. and 6:00 p.m. on the
day of the offenses. She noticed that defendant looked very
dirty. He also had multiple abrasions and a lot of dried blood on
him. A day or two later, the woman’s husband saw some scratch
marks on defendant’s face and a bruise and swelling on
defendant’s cheek.
A second woman with whom defendant had also been
periodically staying recalled that, on the day of the murder,
defendant was waiting for her when she got home from work
between 5:00 p.m. and 5:30 p.m. According to the woman,
defendant looked dirty, as if he had been “sleeping on the
trail” — something he had commonly done before moving in
with her. He asked the woman if she had heard what happened
that day in Concord. After she responded that she had not,
defendant explained that a woman had been killed “[o]ver on the
trails.” On a different day, defendant showed up at this woman’s
house while her best friend was there and said he had been
pruning trees. He pulled up his shirt and showed the women
scratches on his back, arms, and chest.
Defendant stayed at a former coworker’s house one night
after the offenses took place. According to the former coworker,
while the two were drunk, defendant said that he was the
“trailside killer,” or the “Concord trail killer.” At the time, the
former coworker did not know about the case defendant was
referring to and he did not take defendant seriously.
The forensic pathologist who performed Loreck’s autopsy
also performed a sexual assault exam on her. The pathologist
swabbed Loreck’s mouth, vagina, and rectum. Swabs were also
6
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
taken of Loreck’s nipples, abdomen, pubic hair, right thigh, and
left knee.
A forensic serologist examined the samples taken from the
sexual assault exam. She observed a small amount of sperm on
the rectal, vaginal, and thigh samples. A rectal smear created
from a rectal swab contained a low number of sperm with tails.
Some of the sperm on a vaginal smear also had tails. The
serologist testified that the presence of tails meant that
ejaculation had occurred only a few hours before the swabs were
collected. A vaginal swab tested positive for a protein that
cannot exist for very long in the vagina.
The serologist developed DNA profiles from the rectal,
vaginal, and thigh swabs as well as from a one- to two-inch
semen stain found on Loreck’s sweater. The serologist also later
developed DNA profiles of the cigarette butts police found near
the crime scene. The serologist determined that the DNA
profiles from the swabs, the sweater, and two of the cigarette
butts matched defendant’s DNA profile. 5
Defendant also was included as a potential source of some
of the DNA found on the bloodied iron bar discovered at the
crime scene. Loreck’s DNA profile also was found on swabs
taken from the bar.
During an interview with police five months after the
offenses, defendant acknowledged that he had been on the trail
near the crime scene. However, defendant denied seeing Loreck
5
The DNA profile of the third cigarette butt matched that
of the bicyclist who had spoken with defendant on the day of the
offenses.
7
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
walking on the day in question and denied having held a metal
bar that day.
2. Defense evidence
The defense conceded that defendant’s DNA was present
at the scene of the offenses but contested the People’s theory
that the DNA established that defendant had committed rape
and sodomy. Specifically, the defense presented expert
testimony that due to various factors, including contamination
during the collection of swabs from the victim and the possibility
of drainage into the vagina, it was reasonable to infer that there
had been no sexual penetration of Loreck.
B. Penalty Phase Evidence
The People presented evidence that defendant had
committed several prior crimes including a 1985 robbery, a 1986
aggravated battery, and a 1991 robbery. The People also
presented evidence of an incident in 1989 during which
defendant threatened a female friend with a knife and then
threatened the police officer who arrested him in connection
with the incident.
The People also presented victim impact evidence.
Loreck’s father testified that he could not “stomach” what had
happened to her. Loreck’s son explained that the “whole
horrible ordeal that she had to go through” left a “big hole in
[him],” and that it “rips into [him] every day.” Her son also
stated that he and his siblings had suffered from “really bad
depression.”
The defense presented mitigation evidence regarding
defendant’s dysfunctional childhood, significant mental health
problems, substantial substance abuse history, prior
tumultuous romantic relationships, and abnormal brain size
8
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
and functioning. The defense also presented expert testimony
regarding defendant’s potential mental state at the time of the
offenses, including that he was likely experiencing severe
psychiatric symptoms while on the trail on the day in question.
II. DISCUSSION
A. The Trial Court Did Not Err in Excusing a
Prospective Juror Based on His Death Penalty
Views
Defendant claims the trial court erred in granting the
People’s request to dismiss Prospective Juror No. 111 for cause
due to the prospective juror’s views on the death penalty.
According to defendant, Prospective Juror No. 111 was qualified
to serve as a capital juror because, while the prospective juror
“was opposed to the death penalty,” he was “willing to set aside
his beliefs and follow the law.” (Boldface omitted.) Defendant
contends that the trial court’s excusal of Prospective Juror
No. 111 was based on the court’s misrepresentation of the
prospective juror’s statements during voir dire and its
misapplication of the law. He maintains that the trial court’s
erroneous ruling violated his right to an impartial jury under
the Sixth and Fourteenth Amendments to the United States
Constitution and article I, section 16 of the California
Constitution. 6 We reject defendant’s claim.
6
While defendant also summarily asserts the trial court’s
ruling violated his rights to a fair and reliable capital sentencing
hearing and to due process, he does not present any reasoned
argument in support of these contentions. Accordingly, as does
defendant, we focus on the trial court’s purported violation of his
right to an impartial jury under the federal and state
Constitutions. (See People v. Nunez and Satele (2013)
9
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
1. Factual and procedural background
Prior to jury selection, all prospective jurors completed a
juror questionnaire. In a section entitled “General Information,”
one question asked, “Will you have any difficulty keeping an
open mind until you have heard all the evidence and you have
heard all the arguments of both counsel, and the court has given
you all the instructions?” Prospective Juror No. 111 replied
“No,” but added, “Although I’m not confident I could recommend
death in any scenario.”
A second section of the questionnaire asked about the
prospective juror’s attitudes regarding the death penalty. In
response to a question regarding the prospective juror’s “general
feelings regarding the death penalty” (capitalization omitted),
Prospective Juror No. 111 responded, “I think it is not for
human being [sic] to judge whether someone should be killed. I
am against it, but I will obey the law and instructions from the
court.” When asked whether the prospective juror felt the death
penalty was used too seldom or too often, Prospective Juror
No. 111 wrote, “Too often. [¶] I’d rather it not be used at all.”
To a follow-up question that asked whether the answer to this
question was based on a “religious consideration,” Prospective
Juror No. 111 responded in the negative.
Prospective Juror No. 111 further represented that he
would not, because of his beliefs about the death penalty, refuse
to: (1) find defendant guilty of first degree murder to prevent
the penalty phase from taking place; (2) find true the special
circumstance allegations just to prevent the penalty phase from
57 Cal.4th 1, 51 (Nunez and Satele) [declining to consider
argument that was summarily asserted with no citation to
authority].)
10
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
taking place; or (3) vote in favor of the death penalty without
considering aggravating and mitigating factors.
After the prospective jurors completed the questionnaires,
the trial court conducted voir dire during which the court, the
prosecutor, and defense counsel questioned the prospective
jurors. During the voir dire of Prospective Juror No. 111, the
prosecutor stated, “[Y]ou say you’re against the death penalty,
but you will obey the law. How can we —”
Prospective Juror No. 111 interjected, and stated in part:
“I’m trying to figure out under what situation — is it my choice
to say whether or not death is appropriate or not? Because, in
my opinion, I’m trying to come up with a scenario where I
personally would think death would be appropriate, which
would be something — I’m trying to come up with a scenario
where that might be. If you think about, a bunch of children in
a playground and a repeat offender, and, you know, someone
that is so evil in my mind that there’s just no hope of ever being
able to contribute back to society in any way, shape, or form, I —
then could I really think that death was appropriate?
Personally? Yeah, I think maybe, you know. [¶] And what I
think of as the majority of the scenarios, I just really have a hard
time personally thinking that death is an appropriate penalty.
[¶] Now, the question is how important is my personal opinion
as to what’s appropriate or not in a case like this. I don’t know
what all the instructions are going to be. I don’t know what
the — I don’t know — I haven’t been through it before. I don’t
know really where my personal opinions can amount to [sic]. So
can I say to you, no, I will never consider voting for death? I —
first of all, I don’t think I can do it not having listened to any of
the evidence, but I think it’s very unlikely. There was a question
11
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
before that said would you be leaning one way or the other, I’d
be leaning towards life.”
In response, the prosecutor asked, “Is it fair to say that . . .
in almost all cases you . . . could not find it appropriate to impose
the death penalty?” Prospective Juror No. 111 responded, “Yes.”
The prosecutor asked, “[C]ould you find it appropriate in
a case where there’s one murder, one rape, one sodomy, and the
special circumstances that you know about in this case that are
charged, is that a case where you could, under — after weighing
all the evidence from the court and applying the standards, is
this a situation in which you could impose the death penalty?”
After the trial court overruled an objection from the
defense, the prosecutor restated the question, asking, “Could
you personally in a case — could you impose it?” Prospective
Juror No. 111 responded, “There’s a chance, yes.”
After another prospective juror interjected to ask whether
there were some “parameters or thresholds . . . that would be
used as a guideline,” the trial court provided a summary of the
penalty phase of the trial, including a description of how the jury
would be asked to consider evidence pertaining to potential
aggravating and mitigating factors.
Thereafter, the prosecutor asked Prospective Juror
No. 111 whether his opposition to the death penalty was rooted
in his religious beliefs. Prospective Juror No. 111 responded:
“Yeah, I guess . . . I wouldn’t associate it with religion. It’s a
belief. So, if you want to call it religion, I guess can you call it
religion. (Sic.) I just don’t feel like I could ever possibly having
[sic] enough — I’m not sure how to put it.” “I mean — yeah,
okay, call it religion like you say. It would preferably be
something that God chooses whether someone should live or die
12
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
as opposed to a human being making that choice for another
human being. I don’t think it is appropriate for . . . .” (Sic.)
Shortly thereafter, Prospective Juror No. 111 stated that
he did not think he would ever have enough “wisdom” or
“knowledge” to “feel qualified” to impose the death penalty. The
prosecutor began to ask about the tension between Prospective
Juror No. 111’s statement that he “could maybe impose the
death penalty,” with his statement that he would not have
enough “wisdom” to do so.
Prospective Juror No. 111 interjected: “So right now
there’s a conflict between my civic duty and what I believe. And
so given a choice of how do I choose between those two things,
it’s kind of one of those things I’m hoping that . . . it doesn’t have
to come down to that. If it does come down to that, my belief is
that I will follow my civic duty because it’s not — in that case, I
guess I justify the decision based on the fact it’s really not my
moral choice, it’s my choice based on evidence and my civic duty
to do this, and it’s not like I’m personally volunteering to go and
decide whether someone should live or die.”
The trial court subsequently analogized the determination
of whether to impose the death penalty to passing through a
funnel. The court stated: “I told you that if you determined,
personally, you by yourself, because everybody’s going to make
up their own mind on this, if you determine personally that the
aggravating circumstances that you heard evidence on are so
substantial in comparison with the mitigating circumstances
that it warrants a sentence of death, then and under those
circumstances the law allows you to vote for a sentence of death.
It doesn’t command it, but it allows you to. Let’s call that the
funnel that you have to go through to get to that. You feel the
13
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
funnel would be made narrower because of your personal
reluctance to impose that?” Prospective Juror No. 111
responded, “I guess, maybe the answer to your question is yes,
because when I look at this case and the sum total of the charges
that are on the table, . . . I think that that is going to be . . . a
very narrow funnel.”
The trial court stated: “So, what I think I just heard you
say, correct me if I’m wrong, is that when you get — if you were
to arrive at this point, based on the evidence in this case, that
under law [sic] you could see your way clear to the option of
voting for death penalty [sic], your mind would then add to the
equation but I’m not for this at all, and on that ground I — that’s
reversing everything that would otherwise do. I’m going to go
the other way. I’ve narrowed the funnel towards the possibility
of death by my personal belief.” The trial court added, “I’m
simply . . . asking you, sir, to put in the equation, if you wish,
your personal feelings, your opposition to the death penalty,
and, obviously, the overall thrust of my question is whether you
feel it would interfere with your ability to consider the options
at either end.”
After stating he was not trying to be evasive, Prospective
Juror No. 111 responded, “I guess when you say aggravating and
mitigating factors, I guess my answer is the bar is going to be
higher in terms of the need for substantial aggravating
circumstances.” The trial court responded, “Because of your —”
Prospective Juror No. 111 interjected, “Well, yes.” And, the trial
court added, “I understand that analogy.”
Defense counsel then questioned Prospective Juror
No. 111 regarding the conflict between his moral judgment and
his civic duty, observing, for example, that, “[I]t sounds to me
14
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
like civic duty is very important to you, because in the end that
trumps over what you would do necessarily.” Prospective Juror
No. 111 replied, “Fair.”
Defense counsel also asked, “So the [c]ourt talked about
this narrowing funnel, so to speak, of the charges that you know
about, but if there were additional aggravators, then that might
sort of reopen the funnel to some degree; is that fair?”
Prospective Juror No. 111 responded, “That’s fair.” Defense
counsel asked, “And it sounds to me like . . . though it would be
difficult, you can impose the death penalty in this case
potentially?” Prospective Juror No. 111 answered, “That’s —
that’s right. I said that and that’s what I believe. It’s not that I
can look at you and say I’ve done it before. If I’ve done it before,
I can say with certainty yes, that’s how I feel now.”
The prosecutor challenged Prospective Juror No. 111 for
cause on the ground that his questionnaire and voir dire
responses demonstrated that his personal beliefs would
substantially impair his ability to serve as a capital juror. Over
defense counsel’s objection, the trial court granted the
prosecutor’s challenge and dismissed Prospective Juror No. 111.
After discussing a few of the prospective juror’s questionnaire
responses and the court’s notes concerning several of the
prospective juror’s voir dire responses, the trial court ultimately
concluded that Prospective Juror No. 111’s “personal beliefs . . .
would result in him being unable to follow the law and impair
his ability to accept the responsibilities for this case.”
2. Governing law and standard of review
“ ‘Under state and federal constitutional principles, a
criminal defendant has the right to be tried by an impartial jury.
(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)’ ”
15
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
(People v. Mataele (2022) 13 Cal.5th 372, 394 (Mataele).) In
determining whether a defendant’s right to an impartial jury
under the federal Constitution has been violated by the
improper exclusion of a prospective juror due to his or her views
on capital punishment, we apply Wainwright v. Witt (1985)
469 U.S. 412, 424 (Witt) and “ ‘consider whether the record fairly
supports the trial court’s determination that [a prospective
juror’s] views on the death penalty would have prevented or
substantially impaired her performance as a juror.’ ” (People v.
Miles (2020) 9 Cal.5th 513, 562 (Miles), quoting People v.
Thomas (2011) 52 Cal.4th 336, 357.) “We ‘have long adopted the
Witt rule as also stating the standard under the California
Constitution.’ ” (People v. Tran (2022) 13 Cal.5th 1169, 1191
(Tran).)
“A panelist’s bias in favor of or against the death penalty
need not be proven with ‘ “ ‘unmistakable clarity. [Citations.]
Rather, it is sufficient that the trial judge is left with the definite
impression that a [panelist] would be unable to faithfully and
impartially apply the law in the case before the juror.’ ” ’ ”
(People v. Ramirez (2022) 13 Cal.5th 997, 1083 (Ramirez).)
We review a trial court’s ruling on a request to dismiss a
prospective juror for cause for substantial evidence. (See, e.g.,
People v. Flores (2020) 9 Cal.5th 371, 386.) “ ‘ “ ‘Generally, a
trial court’s rulings on motions to exclude for cause are afforded
deference on appeal, for “appellate courts recognize that a trial
judge who observes and speaks with a prospective juror and
hears that person’s responses (noting, among other things, the
person’s tone of voice, apparent level of confidence, and
demeanor), gleans valuable information that simply does not
appear on the record.” ’ ” ’ ” (Miles, supra, 9 Cal.5th at p. 562.)
Deference is also accorded to a trial court’s rulings in the death
16
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
penalty qualification context “[b]ecause prospective jurors ‘may
not know how they will react when faced with imposing the
death sentence, or may be unable to articulate, or may wish to
hide their true feelings.’ ” (People v. Thomas (2011) 51 Cal.4th
449, 462.) “ ‘ “When the prospective juror’s answers on voir dire
are conflicting or equivocal, the trial court’s findings as to the
prospective juror’s state of mind are binding on appellate courts
if supported by substantial evidence.” ’ ” (Miles, at p. 562.)
3. Analysis
Defendant contends that the trial court erred in excusing
Prospective Juror No. 111 for cause because the record
demonstrates that, although Prospective Juror No. 111 was
opposed to the death penalty, he was willing to set aside his
beliefs and apply the law in serving as a capital juror.
Defendant’s argument is unavailing.
To begin, one of Prospective Juror No. 111’s questionnaire
responses reflected doubt about his ability to vote for the death
penalty. In response to a question regarding whether he would
have any difficulty keeping an open mind until hearing all the
evidence, counsels’ arguments, and court instructions,
Prospective Juror No. 111 responded in the negative, but added,
“I’m not confident I could recommend death in any scenario.”
The trial court referenced this written response when it excused
Prospective Juror No. 111 for cause.
Prospective Juror No. 111 also made several statements
during voir dire that,7 when considered as a whole, provided a
reasonable basis for the trial court to determine that his death
7
Defendant acknowledges that the trial court conducted a
“careful voir dire.”
17
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
penalty views would substantially impair his performance as a
capital juror. For example, Prospective Juror No. 111 responded
affirmatively to the prosecutor’s question, “Is it fair to say
that . . . in almost all cases you . . . could not find it appropriate
to impose the death penalty?” Prospective Juror No. 111 also
stated, “I just really have a hard time personally thinking that
death is an appropriate penalty.” And in discussing whether he
could “consider voting for death,” Prospective Juror No. 111
stated, “I think it’s very unlikely.” In addition, Prospective
Juror No. 111 ruminated that he did not think that he would
ever have enough “wisdom” to impose the death penalty. Taken
together, such comments supported the trial court’s excusal of
Prospective Juror No. 111 for cause. (See Mataele, supra,
13 Cal.5th at p. 397 [examining juror’s “written and oral
responses to questions regarding her ability to impose the death
penalty” “as a whole” to determine substantial impairment];
People v. McKinzie (2012) 54 Cal.4th 1302, 1340 [prospective
juror properly excused where “the totality of [the juror’s]
responses reflected doubts regarding her ability to make the
penalty determination”]; see also People v. Camacho (2022)
14 Cal.5th 77, 135 (Camacho) [affirming excusal of prospective
capital juror for cause where “she repeatedly made clear that it
would be ‘difficult’ or ‘very difficult’ for her to vote for the death
penalty”].)
In addition, in response to the trial court’s questioning as
to whether his “personal feelings” would “interfere with [his]
ability to consider the options at either end,” Prospective Juror
No. 111 stated that he thought “the bar is going to be higher in
terms of the need for substantial aggravating circumstances.”
In excusing Prospective Juror No. 111, the trial court referred
to this exchange, remarking in part: “I accept the responsibility
18
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
for trying to put it in a way that was designed to think about if
he followed the law, as he put it, and he did his weighing and he
became convinced that the aggravating circumstances
substantially outweighed the mitigating circumstances would
he nevertheless feel compelled to impose his personal belief as a
barrier, if you will — I put it narrowing the funnel — as a
barrier to imposing the death penalty. And I didn’t write down
his exact answer, but, as I recall, he said yes, that’s true. He’s
the one that came up with . . . the answer that yes, he would —
the bar would be higher for him. And I took that to mean that
the bar would be his personal beliefs which he had difficulty
overcoming in considering the death penalty as a result.”
The court further explained that it took the sum of
Prospective Juror No. 111’s comments to mean that his personal
beliefs would make it difficult for him to apply the law. The
court elaborated: “What do I get from all of this? [¶] I get a
man struggling with his ability to accept the doctrines of law we
would explain to him, to think about the fact that he might be
under law and doing his duty feel compelled to reach a decision
by the weighing process and then be prevented from doing it
because of his personal beliefs. [¶] . . . I find . . . that his
personal beliefs as a result of all this give and take and all these
analogies would result in him being unable to follow the law and
impair his ability to accept the responsibilities for this case.”8
8
We also observe that Prospective Juror No. 111’s
comments in voir dire about his “civic duty” could be understood
to reflect a debilitating misunderstanding of a juror’s role in
considering the question of penalty. A juror’s civic duty would
never require a vote for execution, as the prospective juror
seemed to believe. The prospective juror’s civic duty, like that
19
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
Defendant contends the trial court misrepresented the
prospective juror’s statements and misapplied the law. As to the
former, defendant provides an alternative interpretation of
Prospective Juror No. 111’s statements, arguing, “[Prospective]
Juror No. 111 . . . did not say that his beliefs would interfere with
his ability to impose the death penalty, he did acknowledge that
they would influence his penalty decision.” But the trial court,
having listened to the responses and observed the prospective
juror, was in the best position to evaluate the statements that
were made in the context of the entire exchange. The trial
court’s summary does not misrepresent the prospective juror’s
statements as a whole.
Defendant also contends the trial court erroneously stated
Prospective Juror No. 111 indicated during voir dire that “it was
hard to think of, I guess, or suppose a case where he could
impose [the death penalty].” Defendant maintains the trial
court’s statement was incorrect because, according to defendant,
Prospective “Juror No. 111 said that he could think of cases —
albeit not the majority of cases — in which he could impose the
death penalty.” The trial court did not incorrectly summarize
the gist of the prospective juror’s statements. While Prospective
Juror No. 111 stated there was a chance that he could impose
the death penalty in a case involving hypothetical charges like
those alleged in this case, he also stated that in “the majority of
the scenarios, I just really have a hard time personally thinking
that death is an appropriate penalty.” Prospective Juror
of any juror, would be to consider all the evidence with an open
mind as to both potential punishments and follow the court’s
instructions as to how to approach the penalty question. His
obligation would not be to abandon his own moral judgment in
deference to a misapprehension regarding his civic duty.
20
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
No. 111 also stated that it was “very unlikely” that he could
“consider voting for death.” The trial court’s summary of the
prospective juror’s statements was reasonable and did not
amount to a misstatement.9
As far as purportedly misapplying the law, defendant
contends the trial court erroneously believed that it would be
disqualifying for a prospective juror to hold personal views of the
death penalty that would render it more difficult for the
prospective juror to find aggravating factors that warrant the
death penalty than would be true of the average person.
Defendant reasons this contravenes cases such as People v.
Kaurish (1990) 52 Cal.3d 648, 699 and People v. Martinez (2009)
47 Cal.4th 399, 432. We do not discern any such misapplication
from the trial court’s statements. Instead, as outlined above,
the trial court reasonably interpreted Prospective Juror
No. 111’s remarks as indicating that his personal views on the
death penalty would impair him from imposing the death
penalty even if he were to determine that the death penalty was
warranted under the law. Substantial evidence supports the
trial court’s determination on this point, which constitutes a
proper basis for striking a prospective juror for substantial
impairment. (See People v. Scully (2021) 11 Cal.5th 542, 579
(Scully) [“ ‘excusal is proper when a prospective juror cannot
9
Further, Prospective Juror No. 111’s statement pertaining
to the circumstances under which he might be able to impose
the death penalty as including “a bunch of children in a
playground and a repeat offender” also did not demonstrate his
fitness to serve as a capital juror. That is because “ ‘the mere
theoretical possibility that a prospective juror might be able to
reach a verdict of death in some case does not necessarily render
the dismissal of the juror’ erroneous.” (People v. Beck and Cruz
(2019) 8 Cal.5th 548, 607–608.)
21
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
“consider and decide the facts impartially and conscientiously
apply the law as charged by the court” ’ ”].)
Next, after noting that the trial court expressly
commented on the demeanor of several other jurors in ruling on
challenges throughout the voir dire process, defendant asserts
the trial court’s ruling “was not based on [Prospective Juror
No. 111’s] demeanor.” Yet, the mere fact that the trial court
expressly commented on the demeanor of other prospective
jurors, but not Prospective Juror No. 111, does not relieve this
court of its obligation to afford deference to the trial court’s
ruling. (See People v. Poore (2022) 13 Cal.5th 266, 298 (Poore)
[“deference to [the trial court’s] ruling [excusing prospective
jurors based on their death penalty views] is appropriate even if
the court did not specifically comment about their demeanor on
the record”]; accord, People v. Capistrano (2014) 59 Cal.4th 830,
860 [noting the lack of “authority for the proposition that the
trial court must spend a certain amount of time, give certain
explanations, ask certain questions, or make findings on the
record in support of its determination before a reviewing court
applies the rule of deference” in evaluating a prospective juror’s
qualification to serve in a capital case].) Further, the record
arguably reflects that the trial court did consider Prospective
Juror No. 111’s demeanor. For example, as noted ante, after
reviewing Prospective Juror No. 111’s statements during voir
dire, including that the prospective juror had “launched into [a]
distinction between his duty to follow the law and his personal
beliefs,” the trial court rhetorically asked, “What do I get from
all of this? [¶] I get a man struggling with his ability to accept
the doctrines of law we would explain to him.” The trial court
arguably was referring to the sum of all the information that the
court received in assessing whether Prospective Juror No. 111
22
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
was qualified to sit as a juror, including his demeanor during
voir dire. Regardless, even assuming the trial court did not rely
on Prospective Juror No. 111’s demeanor, there is substantial
evidence in the record to support a finding of substantial
impairment, as summarized above.
Defendant also contends Prospective Juror No. 111 “made
no conflicting or equivocal statements about his ability to vote
for death in a factually appropriate case.” Again, the record does
not support defendant’s contention. In addition to the
ambiguous answer given in connection with the trial court’s
pointed questioning pertaining to the funnel analogy discussed
ante, Prospective Juror No. 111 also was equivocal with respect
to whether the source of his opposition to the death penalty was
his religious beliefs, and more importantly, whether such beliefs
would prevent him from imposing the death penalty. Taken as
a whole, the trial court could reasonably determine that
Prospective Juror No. 111’s equivocal “assurances that he would
consider imposing the death penalty and . . . follow the law [did]
not overcome the reasonable inference from his other
statements that in fact he would be substantially impaired in
this case.” (Uttecht v. Brown (2007) 551 U.S. 1, 18.) Given the
substantial evidence of Prospective Juror No. 111’s equivocal
answers concerning his ability to serve as a capital juror, “ ‘ “the
trial court’s findings as to [his] state of mind are binding” ’ ” on
this court. (Miles, supra, 9 Cal.5th at p. 562.)
For all these reasons, we conclude there is substantial
evidence in the record to support the trial court’s excusal of
23
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
Prospective Juror No. 111 for cause due to his beliefs with
respect to capital punishment.10
B. The Trial Court Did Not Err in Denying
Defendant’s Request to Conduct Individually
Sequestered Voir Dire
Defendant claims the trial court committed constitutional
error in denying his request to conduct the entire death
qualification voir dire in an individually sequestered manner.
Specifically, he contends his constitutional rights to due process,
equal protection, trial by an impartial jury, effective assistance
of counsel, and a reliable death verdict required that the trial
court grant his request. (See U.S. Const., 6th, 8th, & 14th
Amends.; Cal. Const. art. I, §§ 7, 15, 16.) Defendant also asserts
the court abused its discretion in denying his request and
thereby violated his statutory right to individual voir dire where
group voir dire is not practicable. (See Code Civ. Proc., § 223.)
He maintains the trial court’s error requires reversal of his
death sentence. We conclude the trial court did not err.
1. Governing law
“ ‘Our decision in [Hovey v. Superior Court (1980)
28 Cal.3d 1] declared, pursuant to our supervisory authority
10
In light of this conclusion, we need not consider whether
defendant is correct that Prospective Juror No. 111 held no
“other” disqualifying beliefs. Nor do we need to consider the
People’s request that we reconsider our precedent holding that
the erroneous excusal of a juror based on the juror’s views on the
death penalty requires per se reversal of the death judgment.
(See People v. Peterson (2020) 10 Cal.5th 409, 435 [noting that
People had made a similar request in their brief but had
conceded that “Gray v. Mississippi [(1987)] 481 U.S. 648 is
controlling and that error of this sort requires automatic
reversal of the penalty judgment”].)
24
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
over California criminal procedure, that sequestered voir dire
should be conducted in capital cases in order to promote candor
and reduce the possibility that prospective jurors might be
influenced by the questions to and responses by other
prospective jurors. [Citation.] Code of Civil Procedure section
223, adopted in 1990 as part of Proposition 115, abrogated this
aspect of our decision in Hovey.’ [Citation.] [Code of Civil
Procedure] [s]ection 223 provides in relevant part that ‘[v]oir
dire of any prospective jurors shall, where practicable, occur in
the presence of the other jurors in all criminal cases, including
death penalty cases.’ (Code Civ. Proc., § 223.) Group voir dire
may be considered ‘ “impracticable” ’ where it has resulted in
‘ “actual, rather than merely potential, bias.” ’ [Citations.] We
have repeatedly held that ‘there is no federal constitutional
requirement that a trial court conduct individualized,
sequestered voir dire in a capital case.’ ” (People v. Jackson
(2016) 1 Cal.5th 269, 357 (Jackson).)
2. Factual and procedural background
Prior to trial, defendant filed a motion requesting
individual, sequestered voir dire for death qualification.
Defendant claimed individual sequestration was required due
to the sensitive nature of the topic. He also maintained such
individual sequestration was more practical than group voir
dire and would ensure that jurors were not “taint[ed]” by the
attitudes of other jurors. The trial court denied defendant’s
motion, stating it would “follow [Code of Civil Procedure
section] 223 and . . . begin with open court voir dire, [and] move
into chambers for anything that jurors wish to discuss or those
that I feel are sensitive that are likely to cause difficulty.”
25
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
Defendant later renewed his motion for individually
sequestered voir dire on the ground that it would be
“cumbersome” to continue with group voir dire given the
frequency with which sensitive issues requiring individually
sequestered voir dire were arising. The trial court denied the
request, noting “voir dire must occur in the presence of all other
jurors where practical in all criminal cases including death
penalty cases.” It added that many of the issues were not
sensitive and would be addressed in a group voir dire setting.
The court acknowledged that the case also involved some
sensitive issues and that it would take those issues “into
chambers . . . with all of you.”
The court later clarified: “I’m not telling you that I’m
simply going to take every death-qualifying question into
chambers. I may ask [the prospective jurors] a question or two
about — if somebody says I could never impose, I will never
impose the death penalty and so forth, I might ask them an
introductory question or two about that topic, and if I feel that
we’re going into an area that might be deemed sort of personal
to that juror or might tend to broaden the topic beyond the
question they answer, I will indeed go into chambers. [¶] The
proposition that overruled [Hovey] made that very clear that
you’re not entitled to [Hovey] voir dire on death-qualifying
questions, per se. I have to make individual calls on them.”
3. Analysis
Defendant claims “the federal Constitution requires
sequestered death-qualification voir dire of every prospective
26
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
juror in a capital case.”11 As noted in part II.B.1., ante, we have
repeatedly rejected this claim. (See, e.g., Jackson, supra,
1 Cal.5th at p. 357.) Since defendant presents no persuasive
arguments to reconsider our prior holdings, we adhere to our
conclusion that “ ‘ “[i]ndividual sequestered jury selection is not
constitutionally required” ’ ” in all capital cases. (People v. Hoyt
(2020) 8 Cal.5th 892, 914.) 12
We also reject defendant’s claim that the trial court
abused its discretion under Code of Civil Procedure section 223
by denying his request for individual sequestered voir dire
“under the circumstances of this case.” The only argument
defendant offers to support this claim is his assertion that “[t]he
trial court gave no explanation of its decision to overrule
appellant’s request for individual sequestered voir dire about
the death penalty,” and thus the record does not reflect an
exercise of discretion.
Contrary to defendant’s assertion, the trial court did
explain its reasons for denying defendant’s request to conduct
all the death qualification voir dire in an individually
sequestered fashion, and it conducted portions of the voir dire in
an individually sequestered fashion, thereby manifesting an
exercise of discretion. (See People v. McKinnon (2011)
52 Cal.4th 610, 634 [rejecting claim that trial court abused its
discretion in determining whether group voir dire was
11
We assume, for the sake of this opinion, that defendant did
not forfeit his constitutional claim by failing to raise it in the
trial court.
12
In his brief, defendant acknowledges that this contention
“has been frequently rejected by this court” and that he raises it
here “to ensure federal review.”
27
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
impracticable because the court’s “remarks during voir dire
confirm that its denial of the motion reflected careful
consideration of the issue and that it properly exercised its
discretion”].) Thus, we reject defendant’s contention that the
record does not reflect that the trial court exercised its discretion
in ruling on defendant’s request for individually sequestered
death qualification voir dire.
Finally, because “defendant nowhere states what
questions he was unable to ask jurors as a result of the trial
court’s rulings, nor does he describe any specific example of how
questioning prospective jurors in the presence of other jurors
prevented him from uncovering juror bias[,] . . . he has not
established prejudice,” as is required for reversal due to a
violation of Code of Civil Procedure section 223. (People v.
Navarette (2003) 30 Cal.4th 458, 490; see Code Civ. Proc., § 223,
subd. (g) [“The trial judge’s exercise of discretion in the manner
in which voir dire is conducted . . . is not cause for a conviction
to be reversed, unless the exercise of that discretion results in a
miscarriage of justice, as specified in Section 13 of Article VI of
the California Constitution”].)
C. The Trial Court Did Not Err in Instructing the
Jury on Flight
Defendant claims the trial court erred in instructing the
jury concerning a defendant’s flight from the scene of a crime.
He maintains there was no factual basis for giving the
instruction in this case. Defendant also raises a series of
arguments pertaining to a flight instruction generally, including
that the instruction is argumentative and unnecessary, should
not be given where the defendant concedes his identity,
improperly allows the jury to draw an unreasonable permissive
inference, and impermissibly lowers the People’s burden of
28
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
proof. He maintains the trial court’s error in providing the jury
with such an instruction violated his state and federal
constitutional rights and requires reversal. We conclude the
trial court did not err in instructing the jury on flight.
1. Standard of review and governing law
“We review a claim of instructional error de novo.” (People
v. Thomas (2023) 14 Cal.5th 327, 382 (Thomas).)
“The giving of [a flight] instruction is statutorily required
when flight evidence is relied upon by the prosecution.” (People
v. Howard (2008) 42 Cal.4th 1000, 1020, citing § 1127c.)13 “ ‘In
general, a flight instruction “is proper where the evidence shows
that the defendant departed the crime scene under
circumstances suggesting that his movement was motivated by
a consciousness of guilt.” [Citations.] “ ‘[F]light requires neither
the physical act of running nor the reaching of a far-away haven.
[Citation.] Flight manifestly does require, however, a purpose
to avoid being observed or arrested.’ ” ’ ” (People v. Cage (2015)
62 Cal.4th 256, 285.)
13
Section 1127c provides: “In any criminal trial or
proceeding where evidence of flight of a defendant is relied upon
as tending to show guilt, the court shall instruct the jury
substantially as follows:
“The flight of a person immediately after the commission
of a crime, or after he is accused of a crime that has been
committed, is not sufficient in itself to establish his guilt, but is
a fact which, if proved, the jury may consider in deciding his
guilt or innocence. The weight to which such circumstance is
entitled is a matter for the jury to determine.
“No further instruction on the subject of flight need be
given.”
29
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
“[T]he instruction [does not] require[] . . . a defined
temporal period within which the flight must be
commenced . . . .” (People v. Carter (2005) 36 Cal.4th 1114, 1182
(Carter); see ibid. [flight instruction proper where “the evidence
introduced by the prosecution establish[ed] that defendant left
California in the days immediately following the charged
offenses”].) In People v. Mason (1991) 52 Cal.3d 909 (Mason),
we noted that our cases concerning the sufficiency of evidence to
support the giving of a flight instruction do not “create inflexible
rules about the required proximity between crime and flight.”
(Id. at p. 941.) “Instead, the facts of each case determine
whether it is reasonable to infer that flight shows consciousness
of guilt.” (Ibid.)
2. Factual and procedural background
During the guilt phase of the trial, the trial court held a
hearing outside the presence of the jury for the purpose of
discussing potential jury instructions. At the hearing, the court
read CALCRIM No. 372, a standard jury instruction regarding
a defendant’s putative flight from the scene of the crime. The
court asked the prosecutor whether he was offering the
instruction. After the prosecutor responded in the affirmative,
defense counsel stated, “I don’t think it applies.”
The trial court heard argument regarding whether it
should provide the jury with the instruction. The prosecutor
argued, “Well, we know he was at the scene of the crime by
independent witnesses, and right after the crime he wasn’t
there.” Defense counsel contended there was no evidence of
exactly when defendant left the trail area where the murder
occurred. Counsel argued, “We don’t know . . . when he left in
between that time period where [the victim] was there and
30
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
eventually — not immediately — eventually, you know, an hour,
hour-and-a-half later when the police arrive.” Defense counsel
continued, “So there’s no evidence of immediate flight after the
crime in this case.” The defense added, “ ‘Immediately,’ means
within minutes, I think. Or maybe seconds.”
The prosecutor argued it would be error for the trial court
to fail to give the instruction, stating: “I’ve placed [defendant]
at the scene by independent witnesses and by DNA evidence at
the scene of the crime, and as — taking part in this act that
ended with her death. I placed him there at the scene. And then
a short time after he’s not there. Now, what this instruction
says is that’s not enough alone to find him guilty, and that’s why
it’s error to not give this.” After further discussion, the trial
court stated it would consider the issue further and “read the
cases” before providing its “final answer” as to whether it would
provide the instruction.
At a subsequent hearing, the court and counsel further
discussed the propriety of giving a flight instruction. During
that hearing, the trial court noted that, in Mason, this court
stated that our decisions concerning this instruction do not
“create inflexible rules about the required proximity between
the crime and flight.” After further discussion, the court
indicated that it intended to provide the jury with the
instruction but that it would give defense counsel an
opportunity to provide further argument the following day.
Defense counsel did not provide further argument.
The trial court ultimately instructed the jury: “If the
defendant fled immediately after the crime was committed, that
conduct may show that he was aware of his guilt. If you
conclude that the defendant fled, it is up to you to decide the
31
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
meaning and importance of that conduct. However, evidence
that the defendant fled alone — cannot prove guilt by itself.”
3. Analysis
We reject defendant’s contention that there was no factual
basis for the instruction.14 The record contains considerable
evidence that defendant frequently spent time near the trail
where Loreck was attacked. (See pt. I.A.1.b., ante.) Moreover,
on the day of the offenses, multiple witnesses identified
defendant as being near the trail just before Loreck
disappeared from the same location. For example, one witness
described defendant as “loitering” around the trail and
explained that people usually walked or biked on the trail.
Another witness saw defendant sitting near the side of the trail
“kind of plucking at grass.” DNA evidence also confirmed
defendant’s presence at the scene of the crimes.
14
The People contend defendant forfeited all his challenges
to the instruction. While the People acknowledge that
defendant objected in the trial court on the ground that there
was insufficient evidence he had fled “immediately” after the
crime, the People maintain that he did not raise the broader
sufficiency challenge that he raises on appeal or any of the
additional grounds against the giving of the instruction that he
now asserts. We consider the merits of all of defendant’s
contentions notwithstanding any potential forfeiture. (See, e.g.,
People v. Taylor (2010) 48 Cal.4th 574, 630, fn. 13 [rejecting
forfeiture argument to claim regarding flight instruction given
§ 1259, which permits a court to review the propriety of a jury
instruction, even when no objection was made below, if the
defendant’s substantial rights were affected].)
32
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
Yet, when a police officer discovered Loreck that
afternoon,15 within hours of her disappearance, defendant was
no longer present. Defendant told police that, after the
offenses, he did not “want to have nothing [sic] to do with that
section of the trail anymore.” Defendant’s consistent and
visible presence near the trail before the crime makes it more
notable that he was not seen there afterward, and supports an
inference that defendant left the scene because he did not want
to be observed there after the crime.
The People also presented evidence that defendant struck
Loreck on the head with an iron bar and dragged her from near
the walking trail to a secluded area. As aptly summarized by
the People, there is evidence in the record of defendant’s “high
visibility before the crime, clear intent to conceal the crime from
view by dragging [the victim] to a secluded area, and absence
from the scene shortly after the crime,” from which “a jury could
reasonably infer that [defendant] left to avoid being observed or
arrested.” This evidence was sufficient to warrant giving a
flight instruction.
Defendant also raises several additional arguments
relating to the flight instruction, namely that it: (1) unduly
favored the prosecution and was argumentative; (2) should not
have been given when, as here, identity is purportedly conceded;
(3) permitted the jury to draw an impermissible inference; and
(4) lessened the prosecution’s burden of proof.
15
The jury could reasonably find that the officer who found
the victim did so no later than 3:25 p.m., in light of a crime scene
investigator’s testimony that she was dispatched to the crime
scene at approximately that time.
33
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
These arguments are all foreclosed by precedent, and
defendant offers no persuasive argument for revisiting such case
law. (See, e.g., People v. Boyce (2014) 59 Cal.4th 672, 691
[stating that “[d]efendant also mounts several challenges to the
standard [flight] instruction, including that it unduly favors the
prosecution, is argumentative and duplicative, is inapplicable
when identity is conceded, creates an improper permissive
inference, and lessens the prosecution’s burden of proof,” and
that “we repeatedly have rejected these claims”].) Accordingly,
we reject defendant’s additional arguments against the giving of
the instruction.
Finally, while we need not consider prejudice given our
conclusion that the trial court did not err in instructing the jury
regarding flight, we conclude that any error in giving the
instruction was harmless. Contrary to defendant’s claim that
error in giving a flight instruction violated his federal
constitutional rights requiring per se reversal or, at a minimum,
the application of the Chapman16 standard of prejudice, we
apply the Watson17 standard of prejudice applicable to errors
arising under state law to claims that a trial court erred in
instructing a jury on flight. (See People v. Silva (1988) 45 Cal.3d
604, 628 [“we believe that under the evidence, any error in
instructing on flight was harmless; on these facts it is not
reasonably probable a result more favorable to defendant would
have been reached absent such an error,” citing Watson].)
16
Chapman v. California (1967) 386 U.S. 18, 24 [“before a
federal constitutional error can be held harmless, the court must
be able to declare a belief that it was harmless beyond a
reasonable doubt”].
17
People v. Watson (1956) 46 Cal.2d 818, 836.
34
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
Applying that standard, it is not reasonably probable that
defendant would have obtained a more favorable result had the
flight instruction not been given. The instruction “did not
assume that flight was established, but instead permitted the
jury to make that factual determination and to decide what
weight to accord it.” (Carter, supra, 36 Cal.4th at pp. 1182–
1183; accord, People v. Richardson (2008) 43 Cal.4th 959, 1020
[“the instruction applied only if the jurors found flight had been
shown; if they did not so find here, they would have disregarded
the flight instruction as they were also instructed”].) Further,
the instruction cautioned the jury against giving undue weight
to alleged flight. (See People v. Scott (1988) 200 Cal.App.3d
1090, 1095 [noting the cautionary aspects of a flight
instruction].) In addition, “[e]ven had the jury not been
instructed [on flight], it would still have been aware of
defendant’s flight.” (People v. Moon (2005) 37 Cal.4th 1, 28.)
Finally, the People presented compelling evidence that
defendant committed the charged crimes and that the special
circumstance allegations were true, including that defendant’s
DNA was found on the murder weapon and on vaginal and rectal
swabs taken from the victim, and several witnesses placed
defendant near the victim at the time the offenses occurred.
D. The Trial Court Did Not Err in Denying
Defendant’s Self-representation Requests at the
Penalty Phase of the Trial
Defendant claims the trial court erred in denying his
requests to represent himself at the penalty phase of the trial.
Specifically, defendant maintains that, in denying his requests,
the trial court violated his right to self-representation under the
federal Constitution as established by Faretta v. California
(1975) 422 U.S. 806 (Faretta). Alternatively, defendant claims
35
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
the court abused its discretion in denying his requests under
People v. Windham (1977) 19 Cal.3d 121 (Windham). He further
claims the penalty verdict must be reversed as a result of these
errors.18 We conclude the trial court did not err in denying
defendant’s requests.
1. Governing law
“The United States Supreme Court has made clear that a
criminal defendant has a federal constitutional right to
represent himself if he voluntarily and intelligently so chooses.
(Faretta, supra, 422 U.S. at pp. 835–836.) A trial court must
grant a defendant’s request for self-representation if the request
is made within a reasonable time prior to the commencement of
trial, is unequivocal, and is made voluntarily, knowingly, and
intelligently.” (People v. Wright (2021) 12 Cal.5th 419, 435–436
(Wright).)
“In the context of a capital case, we have held that a
Faretta motion made after the guilt phase verdicts have been
returned is untimely. (People v. Hardy [(1992)] 2 Cal.4th [86,]
193–195 [motion made seven days prior to commencement of
penalty phase]; see People v. Bradford (1997) 15 Cal.4th 1229,
1365 . . . [‘a motion made between trial of the two phases [of a
capital trial] is untimely’]; People v. Hamilton (1988) 45 Cal.3d
18
While defendant also summarily asserts the trial court’s
ruling violated his rights to due process and a fair and reliable
capital sentencing hearing, his brief does not present any
reasoned argument in support of these contentions.
Accordingly, as does defendant, we focus on the trial court’s
purported violation of his right to self-representation under the
federal Constitution as well as the court’s alleged error in
denying his motion for self-representation pursuant to
Windham. (See Nunez and Satele, supra, 57 Cal.4th at p. 51.)
36
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
351, 369 . . . [‘the penalty phase has no separate formal
existence but is merely a stage in a unitary capital trial’].)”
(Thomas, supra, 14 Cal.5th at p. 397.)
We have previously stated that “[w]hen a defendant’s
motion [for self-representation] is untimely, the motion is ‘based
on nonconstitutional grounds’ ([Windham, supra, 19 Cal.3d] at
p. 129, fn. 6) and it is ‘within the sound discretion of the trial
court to determine whether such a defendant may dismiss
counsel and proceed pro se’ (id. at p. 124; see also People v.
Bloom (1989) 48 Cal.3d 1194, 1220 . . . [stating a ‘midtrial
motion for self-representation did not have a constitutional
basis’].)” (Thomas, supra, 14 Cal.5th at p. 397.) “Among other
factors to be considered by the court in assessing such requests
made after the commencement of trial are the quality of
counsel’s representation of the defendant, the defendant’s prior
proclivity to substitute counsel, the reasons for the request, the
length and stage of the proceedings, and the disruption or delay
which might reasonably be expected to follow the granting of
such a motion.” (Windham, at p. 128.)
2. Factual and procedural background
On June 21, 2006, shortly after the jury returned its guilty
verdicts, and outside the presence of the jury, defense counsel
informed the trial court that defendant might seek to represent
himself at the penalty phase of the trial. Counsel explained she
needed time to confer with defendant and requested that the
court set a hearing to discuss the issue. The court agreed to set
the hearing and to refrain from calendaring the penalty phase
until holding such hearing.
On June 23, the trial court set July 31 as the date the jury
would return for the penalty phase of the trial. At the end of
37
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
that hearing, defendant stated: “I think it’s necessary to go on
the record saying that although I’m not submitting a Faretta
motion to the [c]ourt presently, I reserve my right to do so at a
future time prior to the commencement of the penalty phase
trial. And if I choose to do so it will be in both unequivocal [sic]
and timely manner which will cause no significant delay, if any
at all.”
On July 26, the trial court held a hearing to consider the
defense’s in limine motion to admit certain videotapes during
the penalty phase trial. One videotape pertained to expert
testimony the defense intended to present on attachment
theory, including a discussion of a study in which monkeys were
deprived of contact with their mothers. The defense also sought
to play a second videotape that would contrast the differences
between defendant’s upbringing and that of his brother, who
was raised in a different household. Defense counsel explained
that defendant’s brother “was raised in a loving, nurturing and
committed environment, whereas [defendant’s upbringing] took
a different direction.” During the discussion of this second
videotape, defendant interjected and stated, “I object to this, and
I’m putting in a motion to appoint new counsel.”
The court responded that it would hear defendant’s motion
after defense counsel finished her presentation. Defense
counsel continued discussing the differences in the households
in which defendant and his brother were raised. After counsel
described one member of defendant’s household as
“dysfunctional,” and a second as “bipolar,” defendant
interjected, “Your Honor, I object again, and I move for a
mistrial because my motion for appointment of counsel is not
being heard.” The court responded, “It will be, sir, if you wish
to renew it, but since you’re obviously upset, it seems to me,
38
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
about some of the material you’re hearing, I’d like to make sure
you hear it all.”
Shortly thereafter, the following colloquy occurred:
“THE DEFENDANT: And I’ll be filing a Faretta
motion so you can hear that.
“THE COURT: I’m going to let the parties put on a
full record of what the current lawyers intend to
offer and then I’ll listen to you.
“THE DEFENDANT: I’d like to represent myself
from this point forward.
“THE COURT: I’m going to determine the point. I’ll
listen to that motion.
“THE DEFENDANT: Then I move for a mistrial for
the [c]ourt denying me my Sixth Amendment right
to represent myself.
“THE COURT: Any motion for a mistrial at this
point is denied.”
After defendant continued to indicate a desire to be heard,
the court noted that defendant appeared to be a “little animated,
perhaps concerned.” The court recessed the hearing to allow
defendant to speak with his counsel.
Upon resumption of the hearing, defense counsel indicated
that defendant wished to make a Marsden19 motion to discharge
counsel and appoint substitute counsel. During the Marsden
hearing, defendant stated that he felt that the approach defense
counsel was taking during the penalty phase “misrepresent[ed]”
19
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
39
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
him. Defendant explained he was “not trying to get by the legal
system by presenting cheap emotionalism.”
After permitting defense counsel to respond to defendant’s
comments, the court denied defendant’s Marsden motion.
Defendant responded, “I’m not going to file a Faretta motion
today until I have a chance to confer with my remaining
counsel.”
On July 31, the date the penalty phase trial was scheduled
to commence, defendant filed a handwritten motion requesting
that he be allowed to represent himself, along with an
accompanying declaration and supporting brief. In his
declaration, defendant stated he was voluntarily and
intelligently requesting permission to act as his own counsel and
he was aware of the dangers of proceeding without court-
appointed counsel. Defendant also asserted that his motion was
timely.
The trial court held a hearing on the motion, noting at the
outset that given the procedural posture of the matter, “under
case law this is not timely.” The court explained that the
untimely nature of the motion was “not the end of the
considerations,” but that it must be considered. Defendant
noted his motion seeking to represent himself was based in part
on his disagreement with “appointed counsel’s intention to
mitigate the why of this sickening crime I’ve been convicted of.”
He stated that, in his view, “promoting the theory that [he is] a
product of a dysfunctional family while projecting images of
maternally-deprived apes is likely to be considered by the jury
as pure monkey business rather than [a] mitigating factor.”
Defendant explained that, instead, he wished to present to the
jury evidence of “how [his] friends and loved ones will be affected
40
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
if [the jury] decided to have [him] executed.” Defendant added
that if the court were to grant his motion he did not “anticipate
any delays or disruptions which will take this final phase
beyond the time frame that defense counsel has already
estimated.”
The trial court denied defendant’s motion, emphasizing it
was not timely. The court stated: “[W]ithout reciting the history
of this trial, this case took five or six weeks to pick a jury, five or
six weeks to try. We’ve had an interval of five weeks. We’ve had
by [defense counsel’s] assessment, large amounts of detail,
exhaustive preparation. Neither [defendant] nor I nor counsel
can predict what the results of that preparation will be, but the
point is it appears to be extensive, relevant, and intensive.” The
trial court also ruled that defendant’s request was equivocal. It
characterized defendant as not satisfied with counsel’s planned
approach during the penalty phase and that he was “angry” and
“upset.”
Immediately following the court’s denial of his motion,
defendant moved for a mistrial. The court denied the motion,
pointing to the likely delay in proceedings that granting the
motion would engender.
On August 1, defendant asked the court to reconsider its
ruling denying his motion for self-representation. Defendant
argued the court had failed to conduct a “sua sponte inquiry” in
denying his motion. Defendant maintained the court was
therefore “unaware” that he had considered defense counsel’s
planned case in mitigation. He explained his “strategy would
not have included such complicated issues,” which he “believe[d]
likely would only anger the jury, ultimately costing [him his]
life.” Defendant also argued his motion “should be considered
41
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
timely,” as he had given notice that he would likely file the
motion “weeks before the commitment [sic] of the penalty
phase.” The court denied the motion, reiterating its remarks
from the prior hearing and emphasizing that defendant’s motion
was untimely. Defendant moved for a mistrial and the court
denied that motion as well.
On August 3, after the penalty phase jury trial had begun,
defendant made an oral motion to represent himself at a hearing
outside the presence of the jury. Defendant stated he would not
object if the court were to appoint “stand-by counsel.” He also
requested the court consider “the slanderous effects another
denial will permit.” Defendant explained the denial of his
request would allow for the dissemination of the claim that, as
a child, defendant had been molested by an uncle (which
defendant asserted was false). Finally, defendant disputed the
suggestion that he had “a genetic brain abnormality.”
The trial court incorporated by reference its remarks in
denying defendant’s previous motions for self-representation. It
noted that standby counsel would require a significant amount
of time to “catch up with the record,” unless defendant’s current
counsel were to be appointed as standby counsel. The court
added that it understood that defendant disagreed with defense
counsel’s intention to present certain pieces of evidence. In
addition, the court stated its view that defendant’s claim that he
had no brain disorder was “belied by what counsel” indicated
they were going to prove. The court underscored that it was
“late in the proceedings,” and denied the motion.
On August 9, defendant “reiterated [his] desire to proceed
pro per at this portion of the penalty phase,” adding that “[t]here
would be no delays.” Defendant explained he had asked to
42
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
represent himself “since July 31st,” and the court had denied the
motions because “it would cause delays and it was ambivalent.”
The court responded, “And that it was late.” After further
discussion, the court denied the motion “[f]or the reasons I’ve
previously stated.” Defendant again moved for a mistrial, which
the court denied.
During another hearing later that same day outside the
presence of the jury, after a witness testified that, as a child,
defendant had told the witness that defendant’s uncle had been
“touching him,” defendant again renewed his request to
represent himself, explaining that he disagreed with counsel’s
approach in soliciting such testimony. The trial court responded
that defendant’s counsel were “doing a competent job” of
representing him and that defendant’s request to represent
himself continued to be late. The court denied the renewed
motion for self-representation and, thereafter, denied
defendant’s mistrial motion.
On August 10, defendant made another request to
represent himself and asked the trial court to allow him to
“prepare and give a statement to the jury without the assistance
of appointed counsel.” The trial court again denied defendant’s
renewed request. The court also stated that defendant would
not be allowed to present an uncross-examined statement to the
jury.
After defendant stated he would be allowed to make such
a statement if he was representing himself, the court responded:
“No. Even if you were representing yourself, you would have to
come to the stand and be cross-examined. So that wouldn’t
make any difference. [¶] You may argue your case, of course, at
43
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
the end, if you were representing yourself. That’s a little
different than pronouncing evidence from the witness seat.”
On August 14, at a hearing outside the presence of the
jury, defense counsel indicated that defendant wished to make
a combination Marsden/Faretta motion. The trial court held a
hearing at which defendant requested the court grant his
“Marsden or Faretta motion.” After hearing defendant’s
argument that defense counsel was providing “ineffective
representation,” the court denied defendant’s Marsden motion
and stated that it would hear defendant’s Faretta motion after
a lunch recess.
At the hearing on his Faretta motion, defendant explained
he agreed “in part” with his counsel “it would not be conducive
to my case if I were to testify.” However, defendant argued “this
issue would be moot if I was allowed to proceed pro per with my
present team as stand-by counsel.” Defendant explained this
would allow him to “make the closing arguments and not be
subject to cross-examination.”
After allowing defendant to make a record of the reasons
for his request, the trial court again denied defendant’s motion
for self-representation. The court incorporated its prior rulings
and explained that defendant’s request continued to be
untimely. In addition, the court stated it appeared defendant’s
request was not unequivocal since it appeared to be premised on
his present counsel being appointed as standby counsel, which
the court explained could not be “assured . . . would happen”
were the court to grant defendant’s motion.
The following day, defendant again requested that the
court grant “a Marsden or Faretta motion.” Defendant argued
that, to discourage him from testifying, defense counsel had
44
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
issued him an “ultimatum to take the stand before any other
witnesses . . . without adequate time for preparation.”
Defendant argued this was “ineffective counsel.” Defendant
added that he had no objection to the appointment of standby
counsel if the court were to grant a Faretta motion and deem
such an appointment necessary. Defense counsel responded by
explaining that she wanted to have defendant testify before an
expert who had conducted a psychiatric evaluation of defendant.
Following further discussion between the trial court and
defendant concerning the nature of his “Marsden slash Faretta
motion,” including whether defendant’s decision to testify was
dependent on the court’s ruling, the court denied the motion.
The court explained that the motion continued to be “late” and
that it appeared to be equivocal in “the sense that you’re telling
me that certain decisions you’re going to make will be based on
what I do.” The court stated that the issue of whether defendant
intended to testify was not “abundantly clear,” and the court
acknowledged that it could not say that it “completely
underst[ood]” defendant on this issue. However, the court
stated that it still regarded the Faretta motion as equivocal in
that defendant would “prepare one way if you have counsel and
one way if you don’t have counsel.” As to the Marsden motion,
the trial court ruled that defendant had not made a sufficient
showing of ineffective representation.
The following day, at a hearing outside the presence of the
jury, defendant stated that his decision not to testify had been
made under “duress,” which was related in part to the trial
court’s denial of his Faretta and Marsden motions. The court
responded by stating it disagreed with defendant’s
characterization and added “if this is construed by anybody as a
renewed Faretta motion, it is denied.”
45
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
3. Analysis
Defendant raises several related claims of error regarding
the denials of his motions for self-representation. First,
defendant broadly claims that a criminal defendant has a
constitutional right to self-representation so long as the
assertion of that right would not unjustifiably disrupt the trial
or obstruct the administration of justice. In support of this
claim, he contends that the “reasonable time requirement”20 for
asserting the right to self-representation that this court first
established in Windham, supra, 19 Cal.3d at page 128 may only
be used to deny a defendant the right to self-representation
where such assertion would obstruct justice. We have recently
rejected this claim. (See People v. Bloom (2022) 12 Cal.5th 1008,
1057 (Bloom) [concluding that defendant’s claim that “a belated
request must be granted unless it would entail undue delay or
interfere with the orderly administration of justice” was
“without merit”]; accord, Thomas, supra, 14 Cal.5th at p. 398
[refusing to “adopt a rule that a self-representation request is
assumed to be timely if the defendant does not request a
continuance or cause future delay,” citing Bloom, at p. 1057].)
As we explained in Bloom, for many years since Faretta,
“this court and others have concluded that that right [of self-
representation] is not absolute if not exercised until the eve of,
or after the onset of, trial.” (Bloom, supra, 12 Cal.5th at
20
By using the phrase “reasonable time requirement,” we
refer to our holding in Windham “that in order to invoke the
constitutionally mandated unconditional right of self-
representation, a defendant in a criminal trial should make an
unequivocal assertion of that right within a reasonable time
prior to the commencement of trial.” (Windham, supra,
19 Cal.3d at pp. 127–128, italics added.)
46
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
pp. 1057–1058.) And where a defendant has brought an
untimely motion that is therefore subject to the court’s
discretion, a court exercising such discretion may consider not
only “ ‘the potential for delay and disruption’ but also ‘whether
the potential disruption is likely to be aggravated, mitigated, or
justified by the surrounding circumstances, including the
quality of counsel’s representation to that point, the reasons the
defendant gives for the request, and the defendant’s proclivity
for substituting counsel.’ ” (Id. at p. 1058.) Defendant offers no
persuasive reason for us to reconsider our prior precedent.
Relatedly, defendant maintains that this court’s
interpretation of the timeliness requirement for an assertion of
a defendant’s federal right to represent oneself violates the
federal Constitution. Specifically, defendant maintains that the
distinction we first drew in Windham between assertions of the
right to self-representation made pretrial and those made
during trial “is an unreasonable interpretation of the Faretta
decision and should not be followed.” We are not persuaded by
defendant’s argument. As we explained in Windham, federal
cases both before and after Faretta drew this same distinction.
(See Windham, supra, 19 Cal.3d at pp. 126–128.) And in the
wake of Windham, “We have repeatedly held that a Faretta
motion may be denied if not made within a reasonable time prior
to the commencement of trial. [Citations.] . . . Defendant does
not present a persuasive reason to revisit precedent on this
matter.” (Wright, supra, 12 Cal.5th at p. 440.)21
21
In addition, defendant acknowledges that “the
discretionary aspect of the Windham decision essentially has
been adopted by all federal jurisdictions when applying Faretta
47
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
In addition to these general claims regarding our
jurisprudence in this area, defendant further argues that the
trial court erroneously denied his initial motion for self-
representation and his renewals of that motion made
throughout the penalty phase of the trial, and thereby violated
his federal constitutional right under Faretta because the
motion was timely, unequivocal, and knowingly and
intelligently made. For the reasons described below, we
conclude that defendant’s motion for self-representation was
untimely as a matter of law under well-established precedent.22
Defendant concedes that the trial court’s rulings
concluding that his motion was untimely were “consistent with
decisions of this court.” Specifically, he acknowledges that his
motion was untimely pursuant to the “unitary-capital-trial rule”
because it was brought during the penalty phase of his trial, and
thus after the commencement of the unitary capital trial.
However, he “urges the [c]ourt to reconsider the strict
application of the unitary-capital-trial rule in evaluating the
timeliness of motions for self-representation at the penalty
phase of a capital case.”
to a self-representation request that is made after the start of
trial.”
22
We have not specified a standard of review that “a
reviewing court should apply in determining whether a
defendant’s request for self-representation is timely.” (People v.
Johnson (2019) 8 Cal.5th 475, 501; see also Thomas, supra,
14 Cal.5th at p. 398, fn. 22 [noting the unresolved issue].) As in
Johnson, “[w]e need not decide whether de novo review or a
more deferential standard is appropriate, however, because
defendant’s claim fails under either standard.” (Johnson, at
p. 501.)
48
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
We recently applied the unitary-capital-trial rule in
concluding that a motion for self-representation filed after the
guilt phase on the day before the penalty phase was to begin
“falls squarely into the category of motions we have deemed to
be untimely.” (Thomas, supra, 14 Cal.5th at p. 398, citing
People v. Lynch (2010) 50 Cal.4th 693, 722 (Lynch) and People v.
Hardy (1992) 2 Cal.4th 86, 193–194 (Hardy).) And, as we noted
in Thomas, “[w]e have repeatedly held that a Faretta motion
made on the eve of trial or after commencement of the guilt
phase is untimely.” (Thomas, at p. 398 [collecting cases].)
We have previously explained the basis for the unitary-
capital-trial rule with respect to motions for self-representation,
stating that “the penalty phase has no separate formal existence
but is merely a stage in a unitary capital trial,” and “the
connection between the phases of a capital trial is substantial
and not merely formal.” (People v. Hamilton (1988) 45 Cal.3d
351, 369.) And we have rejected claims that Hamilton was
“wrongly decided” and is inconsistent with United States
Supreme Court precedent. (Hardy, supra, 2 Cal.4th at p. 194
[distinguishing Bullington v. Missouri (1981) 451 U.S. 430 and
stating “[t]hat the penalty phase of a capital trial may be a
‘separate trial’ for purposes of the double jeopardy clause,
however, does not necessarily require that we conclude Hardy’s
post-guilt-phase Faretta motion was made ‘within a reasonable
time prior to the commencement of trial’ ”].)
Defendant presents no basis for reconsidering this well-
established precedent. Accordingly, we conclude the trial court
did not err in applying that law to deny defendant’s motion for
49
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
self-representation as untimely.23 We further conclude that,
having properly determined defendant’s motion for self-
representation was untimely, the trial court did not violate
defendant’s federal constitutional right under Faretta.
Therefore, we need not consider whether the motion was
unequivocal and knowingly and intelligently made. (See People
v. Stanley (2006) 39 Cal.4th 913, 931 [noting that a “trial court
must grant a defendant’s request for self-representation if three
conditions are met,” including timeliness].)
Next, defendant argues that “even assuming the motion
was untimely,” the trial court abused its discretion under
Windham in denying it.24 “When a defendant’s motion is
untimely . . . it is ‘within the sound discretion of the trial court
to determine whether such a defendant may dismiss counsel and
proceed pro se.’ ” (Thomas, supra, 14 Cal.5th at p. 397, quoting
Windham, supra, 19 Cal.3d at p. 124.)
As alluded to in part II.D.1., ante, in exercising its
discretion under Windham to consider an untimely motion for
self-representation, “ ‘the trial court should inquire into the
23
Since defendant’s motion for self-representation was
brought after the commencement of the guilt phase trial, we
need not consider whether the motion would have been timely
under the factors outlined in Lynch, supra, 50 Cal.4th 693 for
determining whether a motion for self-representation is made
“ ‘a reasonable time prior to the commencement of trial.’ ” (Id.
at p. 722, italics added, quoting Windham, supra, 19 Cal.3d at
p. 128.)
24
While at times in his brief defendant refers to his motion
for self-representation in the singular, his arguments pertain to
his initial request and his subsequent renewals of that request.
Accordingly, we consider defendant’s arguments as to all his
requests made throughout the penalty phase trial.
50
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
defendant’s reasons for the request[s]’ and should consider
factors including ‘ “the quality of counsel’s representation of the
defendant, the defendant’s prior proclivity to substitute counsel,
the reasons for the request, the length and stage of the
proceedings, and the disruption or delay which might
reasonably be expected to follow the granting of such a
motion.” ’ ” (Thomas, supra, 14 Cal.5th at p. 399.)
Applying these principles, we conclude the trial court
reasonably determined the factors weighed against granting
defendant’s motion. First, the quality of counsel’s
representation of defendant weighed against granting his
requests. The trial court commented on the skill of defense
counsel and noted that she had conducted an “exhaustive
preparation” for the penalty phase. Although the court did not
comment on defendant’s proclivity to substitute counsel, we
agree with the People that there is at least some evidence that
this factor also weighs against defendant, in that he filed a
Marsden motion before filing his first Faretta motion, and his
renewed Faretta requests were intermingled with additional
Marsden motions.
Second, regarding the reason for defendant’s requests,
while defendant may have had a genuine disagreement with
counsel as to their penalty phase approach, it also appears part
of this disagreement was rooted in defendant’s desire to present
a defense that was not legally cognizable. Specifically, while
defendant explained he wanted to represent himself to be able
to present evidence of “how [his] friends and loved ones will be
affected if [the jury] decided to have [him] executed,” this court
has repeatedly ruled that “ ‘[t]he impact of a defendant’s
execution on his or her family may not be considered by the jury
in mitigation.’ ” (People v. Williams (2013) 56 Cal.4th 165, 197
51
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
(Williams); accord, Camacho, supra, 14 Cal.5th at p. 142
[describing this court’s case law on this point as “unwavering”].)
Further, while defendant at one point stated that he wanted to
represent himself so he could present a statement to the jury
and “not be subject to cross-examination,” the trial court
reasonably noted that any such statement would not be allowed
if he were “testifying” or “adding facts to the case.” Thus,
defendant’s stated reasons for wanting to represent himself do
not demonstrate that the trial court abused its discretion.
Third, the length and stage of the proceedings also
weighed heavily against granting defendant’s untimely Faretta
motions. And, finally, while defendant argues there was no
evidence that his requests were made for the purpose of delay,
the trial court reasonably determined that disruption or delay
“ ‘ “might reasonably be expected to follow the granting of such
a motion.” ’ ” (Thomas, supra, 14 Cal.5th at p. 399; id. at p. 400
[trial court did not abuse its discretion in determining
“defendant’s self-representation carried with it some potential
for disruption based on the stage of the proceedings”].) In sum,
we conclude the trial court reasonably exercised its discretion
under Windham in denying defendant’s request.
E. The Trial Court Did Not Err in Denying
Defendant’s Requests to Represent Himself at
the Hearing on his Automatic Motion to Modify
the Death Verdict (§ 190.4, subd. (e)) and at the
Sentencing Hearing
Defendant similarly claims the trial court violated his
federal constitutional right to self-representation by denying his
requests to represent himself at the hearing on his automatic
52
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
motion to modify the death verdict (§ 190.4, subd. (e))25 and at
the sentencing hearing.26 As a result, he contends he is entitled
to a new hearing on the section 190.4, subdivision (e) automatic
motion and a new sentencing hearing.27 We disagree.
1. Factual and procedural background
The jury rendered its death verdict on August 24, 2006.
That same day, the trial court set sentencing for October 27. On
October 20, the court held a hearing with counsel and advanced
the sentencing hearing date to October 26. Defense counsel
informed the court that she would be seeking a continuance of
the sentencing hearing. On October 26, the trial court granted
defense counsel’s request to continue sentencing until
25
Section 190.4, subdivision (e) provides in relevant part, “In
every case in which the trier of fact has returned a verdict or
finding imposing the death penalty, the defendant shall be
deemed to have made an application for modification of such
verdict or finding . . . .”
26
As with his claim pertaining to the denial of his right to
self-representation at the penalty phase of the trial, while
defendant also summarily asserts the trial court’s ruling
violated his rights to due process and a fair and reliable capital
sentencing hearing, he does not present any reasoned argument
in support of these contentions. Accordingly, as does defendant,
we again focus on the trial court’s purported violation of his
right to self-representation under the federal Constitution as
well as under Windham, supra, 19 Cal.3d 121. (See Nunez and
Satele, supra, 57 Cal.4th at p. 51.)
27
Defendant does not seek a new hearing on his motion for
new trial, notwithstanding that the hearing on the motion for
new trial was held on the same day as the hearing on his
automatic motion to modify the death verdict (§ 190.4, subd. (e))
and the sentencing hearing.
53
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
December 15. Defendant appeared in court that day and agreed
with the request to continue the sentencing hearing.
Before the October 26 proceeding ended, defendant
requested a hearing pursuant to section 4007, which authorizes
the housing of a county jail inmate in state prison under certain
circumstances.28 The trial court commenced a hearing under
section 4007 that day and continued the hearing until
December 8.
At the December 8 hearing, defendant informed the court
that he was “going to be making a motion to proceed pro per on
this hearing.” Defendant later expressed his desire not to be
returned to county jail, stating, “I’m entirely against that idea,
your Honor, and I haven’t been able to explain why because I
haven’t had a chance to make my Faretta motion.” Shortly
thereafter, defendant stated: “According to [section] 4007, I
have a right to be present at this hearing and represented by
counsel, which also means I have the right to waive that right.
[¶] I no longer wish to be represented by this counsel. I haven’t
been wanting to be represented by them since the beginning of
the penalty phase, and there are very important issues that can
be preserved in this hearing that I don’t want to just let rot away
with me.”
After the court clarified, “So you wish to make a further
Faretta motion at this time?” Defendant responded in the
affirmative. The court stated that it would hold a hearing
outside the presence of the prosecutor and the public, noting
28
The parties agree that on August 24, 2006, the day of the
death verdict, defendant had been transferred from county jail
to state prison pursuant to the statute.
54
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
that it would “begin with any Marsden issues” related to
defendant’s request.
After a discussion of defendant’s dissatisfaction with
counsel’s representation at the section “4007 hearing,” the trial
court denied defendant’s putative Marsden motion to relieve
counsel. The court asked defendant, “Are you asking me to
further address your desire to have [counsel] relieved for
representation in the concluding aspects of this case next year,
or are you limiting it to the 4007 hearing?” Defendant
responded, “Well, I’m making an unequivocal request to proceed
pro per.”
The court observed that “[w]e’re very late in these
proceedings,” which “reflects on the Faretta.” The court added,
“I don’t have to repeat that. I’ve said that already.” After noting
that the main issues remaining in the case were defendant’s new
trial motion and the automatic request to modify the death
verdict (§ 190.4, subd. (e)), the court asked defendant if there
was anything else he wanted to say concerning his request.
Defendant responded, “I’m just of the opinion that I can get
myself executed just as easily as they can. And I feel that I have
enough knowledge about what I want to present in the 4007
hearing to proceed in a way that will be in accordance with the
court rules, and I have a Sixth Amendment right to do that, and
that’s what I’m standing on.”
Defendant added that defense counsel had not given him
“the sealed records in all of the in-camera hearings that we’ve
had.” He stated that while the trial court had denied his
requests at the penalty phase, “this is not an untimely request,”
as it was being made “right here at the hearing.” Defendant
added that there are “appellate issues here,” and that while “this
55
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
4007 hearing is not for the purpose of finding them, . . . it does
preserve those issues.” Defendant maintained that “without
effective representation bringing these up, [he stood] to lose
those things” and that he was “the best person to represent
[himself] at these proceedings.” Defendant also read into the
record letters he had sent to counsel discussing his concerns
regarding counsel’s representation in connection with the
section 4007 hearing.
In ruling on defendant’s motion for self-representation,
the trial court found that defendant was “making a[n]
unequivocal request today.” However, the court ruled that the
request was “not timely” and “quite late in the proceedings.”
The court added that cases supported the proposition that “after
the guilt phase you do not a have a constitutional right to self-
representation.” The court further remarked that although it
found that defendant was acting voluntarily, it did “not feel that
[defendant was] capable of representing [himself] in this closing
stage of these proceedings with . . . these highly technical
issues.” The court continued, “But more than any other issue, I
will find that this simply is not timely at this point, and the
Faretta motion is denied.”
Seven days later, on December 15, the trial court held a
hearing on defendant’s new trial motion and his automatic
motion to modify the death verdict (§ 190.4, subd. (e)), and
thereafter sentenced him. During the discussion of his motion
for new trial, defendant stated, “Your honor, I object to these
proceedings, and I want to make a pro per motion. I don’t even
want this motion read until that hearing takes place.” In
response to the court’s request for clarification as to whether
defendant was “mak[ing] another motion to represent [himself]
in these proceedings,” defendant stated, “As I’ve been doing
56
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
since the beginning of the penalty phase, your Honor.” The court
asked defendant whether he would like to inform the court of
anything that it had not previously heard. Defendant stated
there was “no requirement” that a criminal defendant
demonstrate that his counsel “is providing effective [sic]
representation” before self-representation is permitted.
Thereafter, after “incorporat[ing] the findings [it] made last
time,” the trial court denied defendant’s motion for self-
representation.
2. Analysis
At the outset, we consider the date on which defendant
first sought to represent himself for the hearing on the
automatic motion to reduce the verdict (§ 190.4, subd. (e)) and
sentencing. Noting that the focus of defendant’s request on
December 8 was to represent himself during the then-ongoing
proceeding under section 4007, the People argue defendant first
requested to represent himself for purposes of the section 190.4,
subdivision (e) motion and sentencing a week later, on
December 15 at the sentencing hearing itself. While the record
is ambiguous, we assume defendant is correct that, on
December 8, he first requested to represent himself at the
hearing on the automatic motion to reduce the verdict (§ 190.4,
subd. (e)) and at sentencing. Nevertheless, for the reasons that
follow, we conclude the trial court did not err in ruling that
defendant’s postverdict Faretta motions were untimely.29
Defendant properly notes that this court has not
determined whether, for purposes of determining the timeliness
29
In light of this determination, we need not consider
whether defendant’s request was unequivocal and knowingly
and intelligently made.
57
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
of a Faretta motion, proceedings after a death verdict are
deemed separate proceedings from the guilt and penalty phase.
(See People v. Mayfield (1997) 14 Cal.4th 668, 810 (Mayfield);
People v. Doolin (2009) 45 Cal.4th 390, 454 (Doolin).) Consistent
with our prior precedent, we assume for the sake of argument
that a self-representation motion brought after a death verdict
is not governed by the unitary-capital-trial rule and may be
timely if made a reasonable time before the postverdict
proceedings in which such self-representation is sought. (See
Mayfield, supra, 14 Cal.4th at p. 810 [“assum[ing] for the sake
of argument that a postverdict self-representation motion may
be timely if made a reasonable time before sentencing,” but
“agree[ing] with the trial court that defendant’s motion was
untimely”]; see Doolin, supra, 45 Cal.4th at p. 454 [same].)
However, even assuming defendant’s requests were not
per se untimely pursuant to the unitary-capital-trial rule, we
conclude they were in fact untimely — considering the “totality
of the circumstances” surrounding such requests (Lynch, supra,
50 Cal.4th at p. 726) — because they were not made within a
reasonable time prior to the December 15 proceedings. Not only
did defendant wait until December 8, more than three months
after the jury rendered its penalty phase verdict on August 24
to raise a request for self-representation at the postverdict
hearings, which were to occur the following week, the record
indicates that he had “earlier opportunities to assert his right of
self-representation” (ibid.), including on October 26 when he
was in court. Moreover, defendant’s argument on appeal that
his December 8 Faretta request was prompted by his
dissatisfaction with counsel’s performance in representing him
in connection with the section 4007 hearing that day (and thus
was made at the earliest opportunity) is not supported by
58
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
defendant’s comment that day stating, “I haven’t been wanting
to be represented by [counsel] since the beginning of the penalty
phase.” Accordingly, we conclude that the trial court did not
abuse its discretion in determining defendant’s request was
untimely.30
Next, we consider and reject defendant’s claim that the
court abused its discretion under Windham in denying his
untimely requests to represent himself. While the trial court
did not expressly consider all the Windham factors, this
circumstance does not mandate reversal, as defendant
acknowledges. Further, several of the Windham factors support
the trial court’s rulings, including defendant’s failure to
articulate a compelling reason for his request (i.e., “[he could]
get [him]self executed just as easily as [counsel could]”), the late
stage of the proceedings, and the possibility of delay. (See
Windham, supra, 19 Cal.3d at p. 128 [listing factors to be
considered in assessing a motion for self-representation made
after the commencement of a trial].) In addition, defendant fails
to identify any deficiency with the “quality of counsel’s
representation” that would support his claim of an abuse of
discretion. (Ibid.) Accordingly, we conclude the trial court did
not abuse its discretion in denying defendant’s requests to
represent himself at the postverdict proceedings.
30
Defendant’s December 15 renewed request, made on the
day of the postverdict proceedings, was “manifestly untimely.”
(Doolin, supra, 45 Cal.4th at p. 454.)
59
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
F. The Trial Court Did Not Violate Defendant’s
Sixth Amendment Right to Choose the Objective
of His Defense
Defendant claims the trial court violated his Sixth
Amendment right to choose the objective of his defense by
permitting counsel, over defendant’s objection, to present
several pieces of mitigating evidence during the penalty phase.
As a result, defendant contends that he suffered a violation of
his Sixth Amendment right to the assistance of counsel. (U.S.
Const., 6th Amend.) We reject this contention.
1. Governing law
“The Sixth Amendment guarantees to each criminal
defendant ‘the Assistance of Counsel for his defence.’ ” (McCoy
v. Louisiana (2018) 584 U.S. 414, 421 (McCoy).) As the McCoy
court explained, “To gain assistance, a defendant need not
surrender control entirely to counsel.” (Ibid.) “Some
decisions . . . are reserved for the client — notably, whether to
plead guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal.” (Id. at p. 422.) “Autonomy to
decide that the objective of the defense is to assert innocence
belongs in this . . . category.” (Ibid.)
At the same time, the McCoy court also reaffirmed that
“[t]rial management is the lawyer’s province,” and thus counsel
may decide “ ‘what arguments to pursue, what evidentiary
objections to raise, and what agreements to conclude regarding
the admission of evidence.’ ” (McCoy, supra, 584 U.S. at p. 422.)
The high court also made clear that “[p]reserving for the
defendant the ability to decide whether to maintain his
innocence should not displace counsel’s . . . trial management
role[].” (Id. at p. 423; see ibid. [“ ‘[N]umerous choices affecting
conduct of the trial’ do not require client consent, including ‘the
60
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
objections to make, the witnesses to call, and the arguments to
advance’ ”].)
In McCoy, the defendant shot and killed his estranged
wife’s mother, stepfather, and son. (McCoy, supra, 584 U.S. at
p. 418.) He was charged with three counts of first degree
murder and the prosecutor sought the death penalty. (Ibid.)
Defense counsel concluded that, given the state of the evidence,
“absent a concession at the guilt stage that [the defendant] was
the killer, a death sentence would be impossible to avoid at the
penalty phase.” (Ibid.) Accordingly, counsel told the jury in his
guilt phase opening statement that “the evidence is
‘unambiguous,’ [that] ‘my client committed three murders.’ ”
(Id. at pp. 419–420.) Outside the presence of the jury, the
defendant objected to the concession, telling the court that his
counsel was “ ‘selling [him] out.’ ” (Id. at p. 419.) The defendant
also testified in his own defense, maintained his innocence, and
raised an alibi defense. (Id. at p. 420.) After the jury returned
three death verdicts, the Louisiana Supreme Court affirmed,
concluding defense counsel had the authority to concede the
defendant’s guilt, notwithstanding the defendant’s opposition to
his counsel’s concession. (Ibid.)
In rejecting the state supreme court’s conclusion, the
United States Supreme Court held “that a defendant has the
right to insist that counsel refrain from admitting guilt, even
when counsel’s experienced-based view is that confessing guilt
offers the defendant the best chance to avoid the death penalty.”
(McCoy, supra, 584 U.S. at p. 417.) The court reasoned, “With
individual liberty — and, in capital cases, life — at stake, it is
the defendant’s prerogative, not counsel’s, to decide on the
objective of his defense: to admit guilt in the hope of gaining
mercy at the sentencing stage, or to maintain his innocence,
61
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
leaving it to the State to prove his guilt beyond a reasonable
doubt.” (Id. at pp. 417–418.)
The McCoy court further explained that “the violation of
[the defendant’s] protected autonomy right was complete when
the court allowed counsel to usurp control of an issue within [the
defendant’s] sole prerogative.” (McCoy, supra, 584 U.S. at
pp. 426–427.) Describing the error as structural (id. at p. 427),
the McCoy court reasoned that counsel’s admission “block[ed]
the defendant’s right to make the fundamental choices about his
own defense,” and “a jury would almost certainly be swayed by
a lawyer’s concession of his client’s guilt.” (Id. at p. 428.)
In Bloom, supra, 12 Cal.5th 1008, we applied McCoy in
concluding that counsel’s decision to concede the defendant had
killed two victims, despite the defendant’s opposition to such
concession, “violated [the defendant’s] right to determine the
objectives of the defense and maintain complete innocence as to
these counts.” (Id. at p. 1036.) However, we concluded that
“there was no McCoy violation” in connection with a murder
charge as to a third victim as to which the defendant “conceded
his responsibility.” (Id. at p. 1040.) We explained that, under
McCoy, “counsel’s presentation of a mental capacity defense on
this count, in the absence of a clearly objected-to admission of
criminal liability, did not give rise to a Sixth Amendment
violation.” (Ibid.) Thus, since the defendant did not contest his
responsibility for killing the third victim, “counsel did not
violate the Sixth Amendment by presenting a mental state
defense to first degree murder, even though [the defendant] did
not wish for counsel to present the defense.” (Id. at p. 1041.)
62
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
2. Application
Defendant claims the trial court violated his Sixth
Amendment right to autonomy by permitting his counsel to
present certain categories of evidence to the jury during the
penalty phase, over his objection. The evidence related to
“attachment theory and [defendant’s] dysfunctional childhood,”
“a comparison [of defendant] to his half-brother,” “mental
impairment or mental illness,” and “purported molestation by
[defendant’s] uncle when he was a child.”31
McCoy itself suggests that defendant’s claim fails. The
McCoy court twice emphasized that a criminal defendant’s Sixth
Amendment autonomy right does not encompass tactical
evidentiary decisions that the law has long since reserved for a
defendant’s counsel. First, as previously noted, the McCoy court
reaffirmed that counsel may decide “ ‘what arguments to
pursue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evidence.’ ”
(McCoy, supra, 584 U.S. at p. 422.) Second, the McCoy court
explained that its recognition of a limited right in a defendant
to “decide whether to maintain his innocence” (id. at p. 423)
would not displace counsel’s “trial management role[]” (ibid.),
and it supported this point by noting that a client need not
consent to counsel’s determination of “the witnesses to call”
(ibid.).
31
We assume that defendant objected at trial to the
presentation of all the evidence that he maintains the trial court
admitted in violation of his Sixth Amendment autonomy right.
(See pt. II.D.2., ante [discussing defendant’s objections to the
presentation of certain mitigating evidence in connection with
his requests for self-representation].)
63
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
Given the McCoy court’s repeated acknowledgment that
defense counsel retains authority to determine the evidence to
be proffered in a criminal trial, McCoy does not support
defendant’s argument that counsel lacks the authority to
present mitigating evidence over a defendant’s objection at the
penalty phase of a capital trial. To adopt defendant’s claim that
he has the authority to veto his counsel’s tactical decision to
present certain mitigating evidence would allow him to displace
counsel’s “trial management role[],” and thereby countermand
McCoy’s delineation of the scope of a defendant’s Sixth
Amendment autonomy right. (McCoy, supra, 584 U.S. at
p. 423.)
The McCoy court concluded that a criminal defendant’s
right to insist that his counsel not concede his guilt is among the
“fundamental choices about his own defense” reserved to a
defendant by the Sixth Amendment. (McCoy, supra, 584 U.S. at
p. 428.) But those fundamental choices are limited and are not
implicated here. Unlike in McCoy, counsel here did not
expressly contradict his own client’s sworn testimony. As we
explained in the wake of McCoy, “ ‘When a defendant chooses to
be represented by professional counsel, that counsel is “captain
of the ship” and can make all but a few fundamental decisions
for the defendant.’ ” (Poore, supra, 13 Cal.5th at p. 307
[“Defendant had no right to control how his lawyer would
present a defense if he chose one because ‘[t]rial management is
the lawyer’s province,’ ” citing McCoy].)32
32
We made these statements in Poore in connection with our
consideration of the defendant’s claim that the “jury’s inability
to consider mitigating evidence rendered his sentence
64
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
We are not persuaded by defendant’s attempt to relabel
his disagreements with counsel over the presentation of
evidence as pertaining to the objective of his penalty phase
defense. Defendant argues that his objective “was to avoid a
death sentence by putting on a penalty defense that did not
require presenting himself as mentally deficient, slandering a
family member, or otherwise presenting intimate and possibly
repugnant details about his life, background, and family.” The
Fourth Circuit rejected a similar claim in United States v. Roof
(4th Cir. 2021) 10 F.4th 314 (Roof), aptly explaining: “The
presentation of mental health mitigation evidence is, in our
view, ‘a classic tactical decision left to counsel . . . even when the
client disagrees.’ [Citations.]. McCoy does not subvert the long-
established distinction between an objective and tactics . . . .
[The defendant]’s interpretation of McCoy is flawed because it
would leave little remaining in the tactics category by allowing
defendants to define their objectives too specifically. In other
words, as the government rightly contends, [the defendant]’s
position would allow a defendant to exercise significant control
over most important aspects of his trial — such as the
presentation of particular evidence, whether to speak to a
specific witness, or whether to lodge an objection — as long as
he declares a particular strategy or tactic to be of high priority
unreliable.” (Poore, supra, 13 Cal.5th at p. 305.) However,
unlike in this case, because the defendant in Poore had not
raised a claim under McCoy, we did not need to “decide
whether . . . decisions about penalty phase evidence are among
the ‘objective[s] of the defense’ over which a represented
defendant retains control, for purposes of the Sixth
Amendment.” (Id. at p. 306, fn. 14.)
65
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
and labels it an ‘objective.’ That cannot be.” (Id. at pp. 352–
353.)
The same is true here — defendant’s disagreement with
counsel over the evidence to present during the penalty phase is
not a disagreement “over the objectives of [the] defense . . . but
instead over the ways to achieve those objectives.” (United
States v. Audette (9th Cir. 2019) 923 F.3d 1227, 1236.) Further,
to adopt defendant’s argument that he maintained a Sixth
Amendment right to limit the presentation of mitigation
evidence to further his “personal or non-tactical objectives”
would seem to require, as a practical matter, engaging in the
difficult task of determining the reasons for a defendant’s
objection to the presentation of certain pieces of evidence. Such
line drawing would be particularly fraught in the many
instances in which a defendant’s objections are multifaceted and
include a mix of tactical and nontactical rationales. Indeed, in
this case, with respect to mitigation evidence pertaining to
attachment theory, defendant raised objections that might be
characterized as tactical (e.g., stating that the evidence was
“likely to be considered by the jury as pure monkey business”)
as well as those that might be considered personal (e.g.,
objecting to the introduction of the evidence on the ground that
“[u]sing so-called primates and studies to determine why or how
humans act” amounted to forcing a theory of “evolution on
defendant” that was contrary to “creationism”). We do not read
McCoy to require a court to untangle such objectives.
The Ninth Circuit’s opinion in United States v. Read (9th
Cir. 2019) 918 F.3d 712 does not persuade us to reach a different
result. In Read, the Ninth Circuit concluded that a “district
court commits reversible error by permitting defense counsel to
present a defense of insanity over a competent defendant’s clear
66
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
rejection of that defense.” (Id. at p. 719.) The court reasoned
that “[a]n insanity defense is tantamount to a concession of
guilt”33 and thus directly implicated McCoy’s rule against such
concessions over a client’s objection. (Id. at p. 720.) That
reasoning has no application in this case because the
presentation of mitigation evidence during the penalty phase
bears no resemblance to such a concession. A defense attorney
who presents mitigating evidence during the penalty phase of a
capital trial is not placing the defendant at risk of “confinement
in a mental institution,” as may be the case with an attorney
who presents an insanity defense. (Id. at p. 721.) And, as the
Roof court recognized in distinguishing Read, “[a]cknowledging
mental health problems, and bearing any associated stigma, is
simply not of the same legal magnitude as a confession of guilt.”
(Roof, supra, 10 F.4th at p. 353.)
Defendant contends his claim is supported by our
decisions holding that appointed counsel does not render
ineffective assistance by acquiescing to a defendant’s request
not to present any mitigating evidence. (See, e.g., People v. Lang
(1989) 49 Cal.3d 991, 1031.) According to defendant, “It makes
little sense that counsel could completely forego a penalty phase
defense at the defendant’s direction, even where the defendant
actively seeks a death sentence, but a capital defendant cannot
33
We observe the characterization is somewhat overbroad.
It is true that an insanity defense most often concedes that the
defendant committed the actus reus of the offense. However, it
is the essence of an insanity defense that the defendant is not
guilty because the defendant’s mental condition made it
impossible for him or her to form the mens rea required for a
finding of guilt.
67
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
preclude counsel from presenting only specific aspects of the
mitigation evidence.” We disagree with this contention.
Even assuming that “among the core of fundamental
questions over which a represented defendant retains control is
the decision whether or not to present a defense at the penalty
phase of a capital trial” (People v. Amezcua and Flores (2019)
6 Cal.5th 886, 925), this does not mean that such a defendant,
having elected to put on a defense in mitigation, has the right to
select the evidence offered to further that defense. As the McCoy
court explained in connection with a guilt phase defense, “[t]o
gain assistance, a defendant need not surrender control entirely
to counsel.” (McCoy, supra, 584 U.S. at p. 421.) As discussed,
while a represented defendant cedes control over trial
management, he retains control over certain fundamental
decisions pertaining to the adjudication of his guilt. (Id. at
pp. 421–422.) Analogously, having elected to put on a defense
in mitigation, a defendant cedes to his lawyer the right to control
tactical decisions in furtherance of that defense, even assuming
the defendant maintains the right to determine the
“fundamental question[]” over “whether or not to present a
defense at the penalty phase of a capital trial.” (Amezcua and
Flores, at p. 925.)
In sum, we reject defendant’s contention that “McCoy’s
reasoning extends to a capital defendant the right to limit the
presentation of certain mitigating evidence at the penalty phase
to achieve his or her personal objectives.” We conclude that the
trial court did not violate defendant’s Sixth Amendment right to
choose the objective of his defense.
68
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
G. Defendant’s Challenges to California’s Death
Penalty Scheme Are Without Merit
Defendant raises a series of summary challenges to
California’s death penalty statute and this court’s interpretation
of that statute. As defendant acknowledges, this court has
“consistently rejected” these arguments. We decline defendant’s
request to reconsider our prior precedent regarding the
following holdings, and we reject all of defendant’s challenges.34
“Section 190.2 provides a list of the special
circumstances . . . [that] render a defendant eligible for the
death penalty. These factors are not so numerous and broadly
interpreted that they fail to narrow the class of death-eligible
first degree murders as required by the Eighth and Fourteenth
Amendments.” (People v. Schultz (2020) 10 Cal.5th 623, 682
(Schultz).)
“Section 190.3, factor (a), which permits aggravation
based on the circumstances of the crime, does not result in
arbitrary and capricious imposition of the death penalty in
violation of the Fifth, Sixth, Eighth or Fourteenth
Amendments.” (Ramirez, supra, 13 Cal.5th at p. 1161.)
“Capital sentencing is ‘an inherently moral and normative
function, and not a factual one amenable to burden of proof
calculations.’ [Citation.] For this reason, California’s death
penalty scheme does not violate the Fifth, Sixth, Eighth and
Fourteenth Amendments for failing to require written findings
[citation]; unanimous findings as to the existence of aggravating
factors or unadjudicated criminal activity [citation]; or findings
34
We assume for purposes of this decision that defendant
has not forfeited any of his contentions.
69
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
beyond a reasonable doubt that aggravating factors exist, that
aggravating factors outweigh mitigating factors, or that death
is the appropriate penalty [citations]. These conclusions are not
altered by Apprendi v. New Jersey (2000) 530 U.S. 466 . . . , Ring
v. Arizona (2002) 536 U.S. 584 . . . , or Hurst v. Florida (2016)
577 U.S. 92 . . . .” (Ramirez, supra, 13 Cal.5th at pp. 1160–1161,
fn. omitted.)35
Instructing the jury that a death verdict is “warranted” if
the aggravating factors are “ ‘so substantial’ ” in comparison
with the mitigating factors is not impermissibly broad or vague.
(Scully, supra, 11 Cal.5th at p. 611.)
The trial court does not need to instruct the jury that it
must impose life without the possibility of parole if it determines
that mitigating factors outweigh aggravating factors. (Scully,
supra, 11 Cal.5th at p. 611.)
The trial court did “not impermissibly fail to inform the
jurors regarding the . . . lack of need for unanimity as to
mitigating circumstances.” (People v. Loy (2011) 52 Cal.4th 46,
78.)
35
In the omitted footnote, the Ramirez court noted,
“California does require that section 190.3, factors (b) and (c)
evidence be proved beyond a reasonable doubt. This is, however,
an evidentiary rule. It is not constitutionally mandated.”
(Ramirez, supra, 13 Cal.5th at p. 1161, fn. 51.) Section 190.3,
factor (b) pertains to “[t]he presence or absence of criminal
activity by the defendant which involved the use or attempted
use of force or violence or the express or implied threat to use
force or violence,” and section 190.3, factor (c) pertains to “[t]he
presence or absence of any prior felony conviction.”
70
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
“ ‘ “[T]here is no requirement jurors be instructed there is
a ‘ “ ‘presumption of life . . . .’ ” ’ ” ’ ” (Tran, supra, 13 Cal.5th at
p. 1236.)
“The penalty phase jury is not required to make written
findings regarding its penalty choice, and the absence of such
written findings does not preclude meaningful appellate
review.” (Schultz, supra, 10 Cal.5th at p. 684.)
“Use of adjectives such as ‘extreme’ and ‘substantial’ in
section 190.3, factors (d) and (g), respectively, does not create a
constitutionally impermissible barrier to the jury’s
consideration of a defendant’s mitigating evidence.” (People v.
Johnson (2016) 62 Cal.4th 600, 656.)
“There was no requirement that inapplicable sentencing
factors be deleted.” (People v. Bracamontes (2022) 12 Cal.5th
977, 1006 (Bracamontes).)
The trial court was not required to “define which of the
statutory factors could be aggravating and which were only
mitigating.” (People v. Hillhouse (2002) 27 Cal.4th 469, 509;
accord, Bracamontes, supra, 12 Cal.5th at p. 1006.)
“Comparative intercase proportionality review by the trial
or appellate courts is not constitutionally required.” (People v.
Snow (2003) 30 Cal.4th 43, 126.)
“The death penalty scheme does not violate equal
protection principles ‘by providing significantly fewer
procedural protections for persons facing a death sentence than
are afforded persons charged with noncapital crimes.’ ”
(Bracamontes, supra, 12 Cal.5th at pp. 1006–1007.)
71
PEOPLE v. FRAZIER
Opinion of the Court by Guerrero, C. J.
“The imposition of the death penalty under California’s
law does not violate international law or prevailing norms of
decency.” (People v. Krebs (2019) 8 Cal.5th 265, 351.)
III. DISPOSITION
We affirm the judgment in its entirety.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
72
PEOPLE v. FRAZIER
S148863
Dissenting Opinion by Justice Liu
I join the portion of Justice Evans’s dissenting opinion that
addresses the California Racial Justice Act of 2020 (Pen. Code,
§§ 745, 1473, 1473.7) and the court’s disposition of Frazier’s
motion for stay and remand thereunder. (Dis. opn. of Evans, J.,
post, at pp. 1–9.) For the reasons discussed in Justice Evans’s
dissenting opinion, I also “disagree with the majority opinion’s
summary denial of Frazier’s motion for a stay of the appeal and
a limited remand, which would allow him to pursue a motion for
relief” under Penal Code section 745, subdivision (b). (Dis. opn.
of Evans, J., at p. 9.)
LIU, J.
1
PEOPLE v. FRAZIER
S148863
Dissenting Opinion by Justice Evans
Robert Ward Frazier was convicted of murder with rape
and sodomy special circumstances and sentenced to death. His
automatic appeal became fully briefed in 2017. On January 1,
2024, while his automatic appeal was pending, recent
amendments to the Racial Justice Act (RJA) (Stats. 2020, ch.
317) took effect, including a provision that permits capital
defendants in Frazier’s position to request a stay of their appeal
and a remand to the superior court to enable them to challenge
their death judgment as a product of racial bias. (See Pen. Code,
§ 745, subd. (b); Stats. 2023, ch. 464, § 1.) Shortly after the 2023
amendments were signed into law, and before they took effect,
Frazier filed a Motion for Stay of Appeal and Limited Remand
to enable him to present a challenge in the superior court to his
death judgment under the RJA. Frazier alleged that there were
significant disparities in capital sentencing based on the race of
the victim statewide and in Contra Costa County in particular.
(See id., subd. (a)(4)(B).) According to his expert’s preliminary
findings, homicides with White victims in Contra Costa County
were twice as likely to result in a death sentence as homicides
with Black or Latino victims. The victim in this case was White.
In his motion, Frazier amply justified why he could not
currently present his RJA claim in this appeal: it relies on
evidence that is outside the appellate record. He has also
explained why relegating him to a petition for writ of habeas
corpus to present his RJA claims would be “an illusory remedy.”
1
PEOPLE v. FRAZIER
Evans, J., dissenting
As I noted in my dissenting opinion in People v. Wilson (Aug. 5,
2024, S118775) ___ Cal.5th ___ [p. 11] (dis. opn. of Evans, J.)
(Wilson), counsel appointments for capital habeas corpus
proceedings are plagued by “yearslong delays” caused, in large
part, by a lack of qualified counsel and funding. Indeed, only
one death row inmate has been appointed counsel to prepare a
habeas corpus petition since the passage of Proposition 66 in
2016 — nearly eight years ago — and (other than the attorneys
at the Habeas Corpus Resource Center) only four attorneys in
California have met the qualifications under the Rules of Court
to represent capital inmates in habeas corpus proceedings.
(Wilson, supra, ___ Cal.5th ___ [p. 17] (dis. opn. of Evans, J.).)
Moreover, once Frazier’s appeal becomes final, he will move to
the back of a 140-person line as a Morgan petitioner (In re
Morgan (2010) 50 Cal.4th 932) — i.e., a capital defendant whose
appeal is final and is awaiting appointment of state habeas
counsel. (Wilson, supra, at p. ___ [pp. 17–18] (dis. opn. of Evans,
J.).) Assuming counsel will eventually be appointed despite
these constraints and delays, Frazier then points out that
“relevant evidence or court records may have been lost,”
“witnesses may have died,” and “[m]emories certainly will have
faded.”
The habeas corpus procedure is thus less attractive, less
desirable, and less efficient — even under ordinary
circumstances — than a stay of Frazier’s appeal and a remand
to permit his current counsel to file a motion for relief under the
RJA. But these are not ordinary circumstances, and the RJA is
not just any ordinary statute. In enacting the RJA, the
Legislature declared that “ ‘[w]e cannot simply accept the stark
reality that race pervades our system of justice. Rather, we
must acknowledge and seek to remedy that reality and create a
2
PEOPLE v. FRAZIER
Evans, J., dissenting
fair system of justice that upholds our democratic ideals.”
(Stats. 2020, ch. 317, § 2, subd. (b).) The RJA squarely rejects
the assumption that racial disparities in our criminal justice
system are “inevitable” and that ensuring “race plays no role at
all in seeking or obtaining convictions or in sentencing” would
result in “ ‘too much justice.’ ” (Id., § 2, subds. (i), (f).) Instead,
by extending these protections to people who had already been
convicted, the Legislature emphasized that these defendants
had already been waiting “too long” for the remedies provided in
the RJA. (Assem. Conc. Sen. Amends. to Assem. Bill No. 256
(2021–2022 Reg. Sess.) as amended Aug. 24, 2022, p. 4.) Indeed,
“ ‘[t]hose with prior, racially biased convictions and sentences
deserve equal justice under the law and have waited.’ ” (Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Assem. Bill No. 256 (2021–2022 Reg. Sess.) as amended Aug. 24,
2022, p. 12, italics added.)
The majority opinion does not dispute that Frazier has
identified a plausible claim for relief under the RJA or that his
claim, if successful, would moot at least part of the instant
appeal. Nor does it dispute that the Legislature clearly
expressed urgency in remedying racial discrimination in the
criminal justice system, including in death penalty cases, and
amended the RJA just last year to add the stay-and-remand
option precisely because capital defendants are “unlikely to have
habeas attorneys assigned to them due to the unavailability of
qualified counsel, making it nearly impossible to litigate their
RJA claims in a timely fashion.” (Sen. Com. on Pub. Safety,
Analysis of Assem. Bill No. 1118 (2023‒2024 Reg. Sess.) as
amended May 18, 2023, p. 6.) Yet the majority opinion
nonetheless denies Frazier’s request for a stay of his appeal and
3
PEOPLE v. FRAZIER
Evans, J., dissenting
a remand to enable him to expeditiously litigate his claim that
racism affected his death judgment.
I respectfully disagree. In my view, when the Legislature
has spoken in a clear voice that courts must promptly address
what is widely understood to be this country’s original sin, we
should heed its call.
The majority opinion rests its conclusion that Frazier “has
failed to establish good cause for staying the current appeal” on
three of the factors described in Wilson, supra, ___ Cal.5th ___.
(Maj. opn., ante, at p. 2, fn. 3.) Yet none of these factors,
standing alone, together, or when weighed against the purpose
of the RJA, justifies a ruling that prevents Frazier from
obtaining the “efficient and effective” remedy the Legislature
explicitly intended to provide when it added the stay-and-
remand procedure. (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 1118 (2023–
2024 Reg. Sess.) as amended May 18, 2023, p. 6.)
According to the majority opinion, a stay and remand to
enable Frazier’s current counsel to pursue his RJA claim “would
likely ‘cause significant delay in the resolution of his appeal.’ ”
(Maj. opn., ante, at p. 3, fn. 3.) But the majority fails to explain
why a delay in resolving this appeal should weigh more heavily
than the Legislature’s explicit concern about delays in resolving
plausible claims that the judgment below is fatally infected with
racial bias. Indeed, rushing to affirm a death judgment in the
face of a plausible claim of racial bias — when the Legislature
has crafted a mechanism to resolve that claim of bias within the
scope of the appeal itself — makes no sense as a matter of
judicial economy. If Frazier succeeds on his RJA claim, it would
moot most of the issues in this appeal. On the other hand, the
4
PEOPLE v. FRAZIER
Evans, J., dissenting
opposite is not true. Resolving this appeal would not render the
RJA proceedings unnecessary.
Moreover, it is difficult to understand how the interests of
victims’ families, witnesses, and the public are served by the
mere formality of affirming a judgment in the circumstances
here. There remains a plausible claim that racial bias infected
that judgment, yet the majority opinion delays resolution of that
claim by requiring Frazier to institute a separate habeas corpus
proceeding (see maj. opn., ante, p. 3, fn. 3), presumably to be
followed by yet another habeas corpus proceeding (see Wilson,
supra, ___ Cal.5th ___ [pp. 106–108]). This delay is inconsistent
with the constitutional right of crime victims to “a prompt and
final conclusion of the case and any related post-judgment
proceedings.” (Cal. Const., art. I, § 28, subd. (b)(9), italics
added.) Consequently, the majority’s denial of Frazier’s motion
does nothing but guarantee new and protracted postjudgment
proceedings. And because the subject of Frazier’s claim is racial
bias, its delayed resolution will uniquely “undermine[] public
confidence in the fairness of the state’s system of justice.” (Stats.
2020, ch. 317, § 2, subd. (a).) Accordingly, no one benefits from
the majority’s decision today.
The majority argues next that Frazier “ ‘does not need a
stay of the appeal or a remand to the superior court to raise [the
RJA claim]’ in a petition for writ of habeas corpus.” (Maj. opn.,
ante, p. 2, fn. 3.) While this is true as a matter of technical
procedure — i.e., the superior court does have concurrent
jurisdiction to consider a petition for writ of habeas corpus that
is based on evidence outside the record (see Wilson, supra, ___
Cal.5th at p. ___ [pp. 101–103]) — it is not true as a practical
matter, due to the yearslong delays in appointing capital habeas
corpus counsel. (See ante, pp. 1–2; Wilson, at pp. ___ [pp. 11–
5
PEOPLE v. FRAZIER
Evans, J., dissenting
16] (dis. opn. of Evans, J.).) Recognizing this reality, the Wilson
court leans heavily on the RJA’s separate provision for the
appointment of counsel (Pen. Code, § 1473, subd. (e)) and
speculates that it would “ensure prompt appointment” of
counsel to initiate limited-purpose habeas proceedings. (Wilson,
at p. ___ [p. 110].) This is a misreading of the statutory scheme.
The Legislature amended Penal Code section 1473 to provide for
the appointment of habeas corpus counsel when it enacted the
RJA in 2020. (Stats. 2020, ch. 317, § 4, subd. (f).) Yet the
Legislature evidently did not believe this appointment
mechanism provided a viable method for obtaining timely access
to the statute’s remedies for capital defendants. We know this
because in 2023, the Legislature crafted the stay-and-remand
procedure especially for Frazier and other capital defendants
and explained why: “[t]hese individuals are also unlikely to
have habeas attorneys assigned to them due to the
unavailability of qualified counsel, making it nearly impossible
to litigate their RJA claims in a timely fashion.” (Sen. Com. on
Pub. Safety, Analysis of Assem. Bill No. 1118, supra, as
amended May 18, 2023, p. 6.) In short, the majority is relying
on a fix (in the guise of Pen. Code § 1473, subd. (e)) that the
Legislature already recognized was woefully insufficient. Our
job here is to interpret the law enacted by the Legislature, not
to disagree with or second guess its policy choices.
The majority also deems it significant that Frazier has not
asserted that his current counsel “ ‘would be unavailable to
litigate his claim[] if [it were] to be raised instead through a
limited-purpose habeas petition addressed exclusively to [that
claim].’ ” (Maj. opn., ante, at p. 2, fn. 3.) This is, again,
inaccurate. Frazier’s motion pointed out, clearly and correctly,
that “no court has appointed habeas counsel” for him, “and it
6
PEOPLE v. FRAZIER
Evans, J., dissenting
appears unlikely that an appointment will be made in the
foreseeable future” because of the “insurmountable backlog of
capital cases awaiting appointment of habeas counsel.” It
therefore matters little that current counsel would not
necessarily be “unavailable to litigate his claim” if counsel were
appointed to represent him in a new habeas corpus proceeding,
given that (as Frazier points out) he “will likely have to wait
decades” for such an appointment. After all — and unmentioned
by the majority opinion — this court does not have control over
the appointments in any hypothetical future capital habeas
corpus proceeding, limited purpose or otherwise. (See Pen.
Code, §§ 1473, subd. (e), 1509, subds. (a), (b).) So any
assumption that counsel would be made available to him in a
timely manner is necessarily speculative.
In rejecting Frazier’s motion nonetheless, the majority
goes on to speculate that counsel for capital defendants raising
RJA claims on habeas corpus might not need to satisfy all of the
qualifications currently required for capital habeas counsel and
might instead become eligible for appointment under some
undefined lower standard. (Wilson, supra, ___ Cal.5th at p. ___
[p. 109]; but see id. at p. ___ [pp. 14–15] (dis. opn. of Evans, J.).)
The majority further speculates that counsel will inexplicably
materialize because of the appointment provision in Penal Code
section 1473, subdivision (e), despite the fact the Legislature
found that mechanism insufficient for capital defendants. (Sen.
Com. on Pub. Safety, Analysis of Assem. Bill No. 1118, supra, as
amended May 18, 2023, p. 6.) Unfortunately, the majority’s
speculation about the availability of counsel is not supported by
any “concrete” evidence. (See Wilson, at p. ___ [p. 111, fn. 22].)
In particular, the majority opinion cites no instance in which the
qualification standards for capital habeas counsel have ever
7
PEOPLE v. FRAZIER
Evans, J., dissenting
been relaxed for an RJA claim, nor does it identify a single
capital defendant who has been appointed habeas counsel for a
limited-purpose RJA proceeding. It relies instead solely on the
fact that the appointment provision “requir[es] the appointment
of counsel to pursue an RJA petition if either the petitioner
alleges facts that would establish a violation of the RJA, or at
the request of the [Office of the State Public Defender].” (Wilson,
at p. ___ [pp. 110–111], italics added.) But this argument is as
hollow as it is naïve. The existing statutes governing the
appointment of counsel for capital habeas petitioners use
identical mandatory language (see Gov. Code, § 68662; Pen.
Code, § 1509, subd. (b)), yet the appointment of counsel for
capital habeas petitioners has ground to a halt. The majority
provides no explanation why or how appointment of counsel for
capital habeas petitioners asserting RJA claims will function
any differently.
For all these reasons, one can see that the remedy the
majority has provided is an illusory one. While the Wilson court
declares that the determination whether to grant a motion to
stay and remand “will depend on the circumstances of the case
at hand” (Wilson, supra, ___ Cal.5th at p. ___ [p. 117]), the
summary analysis offered by the majority here turns not on
anything specific to “the case at hand.” Instead, it relies upon
broad pronouncements about the “late stage of the proceedings,”
the fact that the RJA claim “is not intertwined with the issues
on appeal,” and the not uncommon fact that Frazier “ ‘is
represented by the Office of the State Public Defender.’ ” (Maj.
opn., ante, at pp. 2–3, fn. 3.) Litigants should likewise note that
the Wilson court justifies its holding on the dubious assertion
that Wilson failed to show that “he faces legal or practical
obstacles” to pursuing RJA relief in a habeas corpus petition,
8
PEOPLE v. FRAZIER
Evans, J., dissenting
and therefore its holding “does not preclude litigants from
raising such concerns in future cases.” (Wilson, at p. ___ [p. 111
& fn. 22].) Accordingly, future defendants who specifically
identify and articulate these obstacles in their motions to stay
and remand under Penal Code section 745, subdivision (b)
should be allowed — if the majority means what it says — to
obtain efficient and effective resolution of their RJA claims
using the stay-and-remand provision as intended by the
Legislature.
In the meantime, I respectfully but strenuously disagree
with the majority opinion’s summary denial of Frazier’s motion
for a stay of the appeal and a limited remand, which would allow
him to pursue a motion for relief under the RJA. A defendant
like Frazier, who has a plausible claim for relief under the
RJA — but who would be unable, because of the profound and
ongoing dysfunction of the state’s capital habeas corpus system,
to present that claim for many years unless this appeal were
stayed to allow current counsel to file a motion for relief in the
superior court as provided in the RJA itself (Pen. Code, § 745,
subd. (b)) — is not being afforded the “efficient and effective”
remedy the Legislature explicitly intended to provide when it
added the stay-and-remand procedure. (Sen. Rules Com., Off.
of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No.
1118, supra, as amended May 18, 2023, p. 6; see also Assem.
Conc. Sen. Amends. to Assem. Bill No. 1118 (2023–2024 Reg.
Sess.) as amended May 18, 2023, p. 1 [“to ensure RJA claims are
processed more efficiently and that the intent of the law is
followed”].) To prevent Frazier from using this sensible and
efficient mechanism without the assurance of an effective
alternative is difficult to understand. I therefore respectfully
dissent.
9
PEOPLE v. FRAZIER
Evans, J., dissenting
* * *
I also write separately to explain the contours of the
majority opinion’s conclusion, with which I agree, that Frazier
was not denied his Sixth Amendment right to the assistance of
counsel when counsel presented, over his objection, certain
mitigating evidence during the penalty phase. (See maj. opn.,
ante, at pp. 60–69.) In this case, Frazier’s disagreement with
counsel concerning the evidence to present was “not a
disagreement ‘over the objectives of [the] defense . . . but instead
over the ways to achieve those objectives.’ ” (Maj. opn., ante, at
p. 66, quoting United States v. Audette (9th Cir. 2019) 923 F.3d
1227, 1236.) For example, Frazier complained that proposed
mitigation evidence relating to attachment theory was “likely to
be considered by the jury as pure monkey business,” and counsel
conceded at oral argument more generally that his client’s
objections to the proposed mitigation evidence encompassed
“both” tactical and personal reasons and that there was
“overlap” between the two. To accept Frazier’s argument that
he maintained a Sixth Amendment right to limit the
presentation of mitigation evidence under these circumstances
would require courts to engage in the difficult task of
determining which were the predominant reasons for a
defendant’s objection to certain pieces of evidence. The majority
opinion correctly concludes that the Sixth Amendment does not
require a court to untangle such objectives.
This case does not present, and the court today therefore
does not consider, what the result would have been if a
defendant had objected to certain evidence for nontactical,
purely personal reasons. But we did analyze an analogous claim
in People v. Lang (1989) 49 Cal.3d 991 (Lang). There, we
rejected a claim of ineffective assistance of counsel arising from
10
PEOPLE v. FRAZIER
Evans, J., dissenting
counsel’s acquiescence in the defendant’s request that his
elderly grandmother not be put through “ ‘the emotional trauma
of having to come here and testify’ ” about the defendant’s
character. (Id. at p. 1029.) In addition to our own precedent, we
relied on scholarly commentary (id. at pp. 1030–1031) as well as
the ABA Model Code of Professional Responsibility, which
advised that “ ‘the decision whether to forego legally available
objectives or methods because of non-legal factors is ultimately
for the client . . . .’ ” (Id. at p. 1031.) Lang concluded that
“[w]hile selection of defense witnesses is generally a matter of
trial tactics over which the attorney, rather than the client, has
ultimate control [citation], it does not necessarily follow that an
attorney acts incompetently in honoring a client’s request not to
present certain evidence for nontactical reasons.” (Id. at p.
1031, italics added; see People v. Brown (2014) 59 Cal.4th 86,
112 [“Nothing in Lang suggested that such a decision by a
defendant based upon nontactical factors could be overruled by
counsel’s assessment of the relative tactical merits of a
defendant’s case. Indeed, as noted, Lang suggested that such
authority would be detrimental to the attorney-client
relationship and might lead defendants to imprudently seek
self-representation at the guilt phase”].)
We have not yet decided whether Lang’s recognition of a
capital defendant’s right to control counsel’s presentation of
mitigating evidence for purely nontactical reasons can be
reconciled with the high court’s decision in McCoy v. Louisiana
(2018) 584 U.S. 414 and its allocation of which decisions “are
reserved for the client” and which are “the lawyer’s province” (id
at p. 422). (See People v. Poore (2022) 13 Cal.5th 266, 312 (conc.
opn. of Liu, J.).) As explained above, that issue is not presented
in this case, either.
11
PEOPLE v. FRAZIER
Evans, J., dissenting
I will nonetheless note that the stakes surrounding this
legal question are extraordinarily high. Under this court’s
“unitary-capital-trial rule,” any request for self-representation
that is made at the penalty phase is untimely and therefore a
matter entrusted to the trial court’s discretion. (Maj. opn., ante,
at pp. 37, 48–49.) The practical problem with this construct is
obvious: defendants are unlikely to know, prior to the guilt
phase, what the defense case at the penalty phase will look like
(see, e.g., People v. Jenkins (2000) 22 Cal.4th 900, 1031; In re
Gay (1998) 19 Cal.4th 771, 825), and they surely are unaware of
how counsel will perform at trial. So unless defendants retain
some right under Lang to exclude certain mitigating evidence at
the penalty phase for personal, nontactical reasons, defendants
who anticipate having any concerns about what evidence should
or should not be presented will be forced “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 at
p. 1031.) In other words, defendants who wish to avoid
This text is long and has been trimmed here. Open the source document for the complete record.