The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN ANTHONY BERTSCH and JEFFERY LEE HRONIS,
Defendants and Appellants.
S093944
Sacramento County Superior Court
94F07295
April 20, 2026
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Evans, and
Viramontes* concurred.
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. BERTSCH and HRONIS
S093944
Opinion of the Court by Guerrero, C. J.
Defendants John Anthony Bertsch and Jeffery Lee Hronis
were tried together and convicted by separate juries of the
murder, rape, and kidnapping of Linda Canady. (Pen. Code,
§§ 187, subd. (a), 264.1; id., former § 209, subd. (b).)1 The juries
also found true kidnapping-murder, robbery-murder, and rape-
murder special-circumstance allegations. (§ 190.2,
subd. (a)(17).) Bertsch’s jury convicted him of sodomy and found
true a sodomy-murder special-circumstance allegation. (§§ 286,
subd. (d), 190.2, subd. (a)(17).)
Bertsch and Hronis were tried separately before two
penalty phase juries. Each jury returned a death verdict. The
trial court denied motions for new trials and to modify the
judgments, and it sentenced Bertsch and Hronis to death. The
court also sentenced Bertsch and Hronis to various terms of
imprisonment and stayed execution of the prison sentences.
Specifically, it sentenced Hronis to life imprisonment on the
kidnapping charge and nine years imprisonment on the rape in
concert charge, and it likewise sentenced Bertsch to life
imprisonment on the kidnapping charge, nine years
imprisonment on the rape in concert charge, and nine years
imprisonment on the sodomy in concert charge. The court also
ordered Bertsch and Hronis to each pay a restitution fine under
1
All further statutory references are to the Penal Code
unless otherwise indicated.
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
Government Code former section 13967 (subsequently replaced
by Pen. Code, § 1202.4) in the amount of $10,000.
In this automatic appeal (Cal. Const., art. VI, § 11,
subd. (a); § 1239, subd. (b)), we affirm the convictions of both
Bertsch and Hronis and affirm the judgment of death against
Bertsch. However, based on subsequent changes in the law
governing a defendant’s competency to represent himself at
trial, we reverse Hronis’s sentence, including the death
judgment. In addition, any balance of restitution fines issued
under section 1202.4 as to both Bertsch and Hronis are vacated
pursuant to section 1465.9, subdivision (d).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase
1. Prosecution evidence
a. Overview
The prosecution presented evidence that in late December
1985, Bertsch and Hronis were being pursued by law
enforcement for a string of robberies in the Sacramento area.
The duo planned to evade law enforcement by leaving town.
They told friends of their plan to prowl a parking lot, find
someone they could overpower, and take her vehicle. On
December 22, 1985, they followed through on their plan. They
kidnapped Canady from a shopping center parking lot, drove
hundreds of miles south to a remote area, and raped and
sodomized Canady before crushing her to death and discarding
her body in an irrigation canal.
b. Sacramento convenience store robberies and
investigation
In December 1985, several convenience stores in the
Sacramento area were robbed. On December 2, a man robbed a
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Opinion of the Court by Guerrero, C. J.
Food and Liquor store in Sacramento at gunpoint. The store
clerk activated a surveillance camera, which took photographs
of the perpetrator. The clerk later identified Hronis in a lineup
as the possible perpetrator.
On December 3, the same individual robbed the Short
Step Market at gunpoint. The store owner later identified
Hronis in a lineup as the person who had robbed her store.
On December 5, the same man robbed a Circle K store on
Kiefer Boulevard. The individual pointed a gun at the clerk and
ordered him to hand over all the money in the register. The
clerk activated the store camera, which took pictures of the
perpetrator. The clerk later picked out Hronis from a lineup as
possibly the person who had robbed his store. On December 12,
an armed robbery took place at another Circle K store in
Sacramento.
Detective Darrell Edwards was assigned to investigate the
string of robberies. He provided the media with photographs
obtained from the December 2, 5, and 12 robberies and
information about the robberies and robbery suspects.
On December 15, another armed robbery took place at a
Circle K store in Rancho Cordova. The store manager
recognized the individual as the same man who had committed
recent prior robberies, as his picture was hanging in front of the
register. The manager gave police officers a description of the
robber and the car involved, which was a white sedan. The
manager later identified Hronis as the man who had robbed the
store.
A nearby motorist was listening to a radio scanner tuned
to a Sheriff’s Department frequency. He heard information
about the armed robbery that had just occurred at Circle K and
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Opinion of the Court by Guerrero, C. J.
a description of the vehicle involved. The motorist noticed a
vehicle fitting this description and followed it for a time before
pulling over and calling the police. The motorist told police
officers he saw at least two occupants in the car.
Later that afternoon, a White male robbed a 7-Eleven
store at gunpoint. A bicyclist saw a man jump over the fence
behind the store and get into a white car with another occupant.
The car drove off quickly. The bicyclist told responding officers
that the last three letters of the car’s license plate were MTH.
On December 18, a local television station broadcasted
information about the string of robberies. The next day,
Detective Edwards visited the Plaza Motel and Apartments in
West Sacramento after receiving a tip that the robbery suspects
were staying there. The manager recognized a photograph of
the robbery suspect as one of his tenants. He had recorded the
tenant’s license plate number as 089MTH. He told Detective
Edwards that the tenant had rented the room under the name
“John H. Brooks” until December 21 and that the tenant was
sharing the room with another man with a beard and a woman.
Detective Edwards returned to the Plaza Motel and
Apartments on December 21 and examined the room previously
rented by “John H. Brooks.” He saw a copy of the Sacramento
Bee lying open on the bed. It was turned to an article about the
robberies, which included the robbery suspect’s photograph.
Around this time, Bertsch and Hronis confided to their
friend, Martha R., that they had robbed several convenience
stores. Bertsch told Martha R. that they would have to “ditch”
his car, a white AMC Rebel bearing the license plate 089MTH,
because someone was looking for it. Soon after their
conversation, Bertsch and Hronis parked the Rebel in front of
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Opinion of the Court by Guerrero, C. J.
Martha R.’s house in the middle of the night and emptied
everything out of the car and onto her yard.
In another conversation, Bertsch told Martha R. they were
“hot” and had to leave town quickly. Martha R. advised them to
go to Buckeye, Arizona, which was about 10 and a half hours
away. With Hronis present, Bertsch told Martha R. they had a
plan to stake out a shopping center, find somebody they could
overpower, and take that person’s car. The last time Martha R.
saw Bertsch and Hronis was a few days before Christmas.
Jerry B., another friend of Bertsch’s and Hronis’s, recalled
a similar conversation that took place the day before Bertch and
Hronis left Sacramento. Bertsch and Hronis told Jerry B. they
needed to leave Sacramento because they had recently
committed a string of armed robberies in the area and the media
had started covering it.2 They planned to get a car out of a
parking lot and go to Arizona.
On January 3, 1986, police officers located the vehicle
associated with the robberies, a white AMC Rebel with the
license plate 089MTH. It had been abandoned on Fairgrounds
Drive and Broadway in Sacramento.
c. Murder of Canady
In December 1985, Canady was living in a condominium
in Sacramento and working at a clothing store. Canady owned
a bronze-colored 1978 Pontiac Sunbird. She saw her parents
approximately three to four times per week and spoke with them
on the phone almost every day.
2
In 1987, Hronis pleaded guilty to the robberies committed
on December 2, 3, 5, 12, and 15. The reporter’s transcript of
Hronis’s plea to these offenses was read to Hronis’s jury only.
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PEOPLE v. BERTSCH and HRONIS
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On December 21, Canady and her parents visited
Canady’s grandfather in Manteca, and the trio later went out to
dinner in Sacramento. They returned to Canady’s condominium
around 7:30 p.m. She told her parents she planned to buy
groceries the next morning at a grocery store located in a nearby
shopping center. She needed the groceries for a dinner that she
was going to prepare for her family on Christmas Eve. Canady
also planned further preparations, including cleaning her house.
Canady’s parents left her condominium around 9:00 p.m. It was
the last time they saw their daughter alive.
The next day at approximately 9:30 a.m., Canady’s
neighbor saw Canady take out her trash and return to her
condominium. Canady’s father called Canady at home around
noon, but she did not answer her phone.
The following evening, on December 23, one of Canady’s
coworkers phoned Canady’s father. The employee asked about
Canady because she had not shown up or called in for her
scheduled shift. Canady’s father immediately became very
concerned because this was out of character for Canady. He
called Canady’s home phone but there was no answer again.
Canady’s parents drove to Canady’s condominium
complex and noticed her car was not there. They also noticed
the December 23 morning paper was still on the front porch.
Inside the condominium, it appeared that Canady had started
cleaning but had not finished. Canady’s father looked inside the
refrigerator and observed Canady had not been grocery
shopping as planned. A grocery checker who was familiar with
Canady confirmed she had not seen Canady in the store on
December 22.
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Canady’s father called the Sacramento Sheriff’s
Department to report his daughter missing.
On December 22, 1985, at 12:14 p.m. and 12:17 p.m., one
of Canady’s credit cards was used to purchase gasoline in
Modesto. A clerk recalled that a man had come into the store
with the credit card. The clerk saw another male and a female
sitting in the front seat of the man’s car. The man signed both
credit card receipts “Bob Canady.”
A few minutes later, Canady’s credit card was used to
purchase beer and Marlboro cigarettes at another gas station in
Modesto. According to the clerk who handled the transaction,
the man using the card was scruffy-looking and very nervous.
Later that afternoon, a different credit card of Canady’s was
used to purchase gasoline and miscellaneous items in
Bakersfield.
At 9:12 p.m., still on December 22, one of Canady’s credit
cards was used to purchase gasoline and other items in Corona.
The station clerk remembered two men in a light beige sedan.
One of the men entered the store, told the clerk he was in a
hurry, and purchased beer and sandwiches. The other man then
entered the store and told his companion to “hurry up” before
also grabbing a second case of beer. At 11:05 p.m., Canady’s
credit card was used to purchase gasoline in Leucadia.
On December 23, one of Canady’s credit cards was used to
purchase gasoline in Tucson, Arizona.
At trial, a handwriting expert compared the signatures on
the receipts for several of these purchases with known
handwriting samples from Hronis. He concluded Hronis had
written the name “Jeff” on some of the receipts. He was unable
to conclude whether Bertsch had signed “Bob Canady” on other
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
receipts because he did not have enough known handwriting
samples from Bertsch.
Early in the morning of December 24, an employee with
the Imperial Irrigation District in Imperial County was driving
along the East Highline Canal when he noticed an object on the
east bank of the canal. Using binoculars, he saw a woman’s body
lying on the canal bank. The woman was later identified as
Canady. Her wrists had been bound behind her back with duct
tape, and she had duct tape wrapped around her ankles, eyes,
and mouth. Her bra was undone and out of place. Canady had
33 different contusions (bruises) and abrasions (scrapes or
bleeding) scattered throughout her body and a laceration over
her lip. She had bruising on top of her head, over her right eye,
right side of her chin, and finger-like markings on her neck. Her
nose was broken. She also had bruising on her ankles, shins,
and knees. Her ribs had been fractured, she had suffered
hemorrhages in her chest, and her lungs were lacerated and
collapsed. The forensic pathologist who performed Canady’s
autopsy determined the cause of death was a massive crush type
injury to her back and chest, which was consistent with having
been beaten to death.
The pathologist also examined Canady’s body for signs of
sexual assault. He found a slight hemorrhage in the lining of
the uterus and a small amount of blood in the vaginal vault but
no tear or laceration. He opined that a sexual assault would not
produce noticeable injuries to this area if Canady were rendered
unconscious or did not physically resist.
Several days after Bertsch and Hronis left Sacramento,
Hronis called Jerry B. and told him they had killed a girl.
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
Jerry B. overheard Bertsch angrily tell Hronis, “Don’t tell
nobody that.”
On January 10, 1986, Canady’s car was found submerged
in an Arizona canal. There were beer cans and cigarette butts
inside the car. Canady was a nonsmoker; Hronis smoked
Marlboro cigarettes.
d. DNA evidence and incriminating statements
During the autopsy, swabs were taken from Canady’s
vagina, mouth, and anus. A high volume of spermatozoa was
found on the vaginal and anal slides. The vaginal swab results
and sperm fraction extracted from Canady’s underwear
indicated the presence of two sperm donors.
Law enforcement eventually came to suspect that Bertsch
and Hronis were involved in Canady’s murder. In 1988, law
enforcement collected blood and saliva samples from Hronis
while he was in jail after pleading guilty to the Sacramento
convenience store robberies. Blood and saliva samples were also
taken from Bertsch while he was in jail in Georgia for an
unrelated offense.
A Department of Justice (DOJ) criminalist conducted
serology testing and compared the Canady samples with the
Bertsch and Hronis samples. She concluded that Hronis could
be included as a possible semen donor while the results for
Bertsch were inconclusive. The DOJ criminalist then sent the
samples to the FBI for additional testing.
While the investigation was pending, DNA forensic testing
became available. After reading a newspaper article in jail
about the admissibility of DNA evidence in court, Bertsch asked
for a private conversation with Detective Edwards and District
Attorney Steve White. When Bertsch was asked why he wanted
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Opinion of the Court by Guerrero, C. J.
a private meeting with them, he responded, “Because of the
article and I know they have DNA evidence against me that was
found on the victim.”
In February 1990, Bertsch and Hronis were charged with
Canady’s murder.
In 1989 and 1992, the FBI DNA analysis unit chief,
Lawrence Presley, supervised testing of the DOJ samples using
restriction fragment length polymorphism (RFLP) analysis.3
3
RFLP analysis “compar[es] the DNA in a known sample
(e.g., blood from a suspect) with the DNA in a questioned sample
(e.g., blood or semen taken from a crime scene).” (People v. Soto
(1999) 21 Cal.4th 512, 514–515 (Soto).) RFLP analysis involves
(1) processing DNA from the suspect(s) and the crime scene to
produce X-ray films that indicate the lengths of the polymorphic
base pairs (e.g., the sequence of base pairs that vary from person
to person); (2) examining the X-ray films to determine whether
any sets of polymorphic fragments match; and (3) if there is a
match, determining the match’s statistical significance. (Id. at
pp. 520–521.)
“Unless a nonmatch between any band of the suspect’s
DNA and the corresponding band of the questioned sample
conclusively eliminates the suspect as the source of that sample,
a match of one or more of the suspect’s bands with those of the
sample places the suspect within a class of persons from whom
the sample could have originated. The fact finder’s
determination of guilt may then turn on the degree of
probability that the suspect was indeed the source of the sample.
That probability, however, will usually depend, not on the DNA
findings alone, but on a combination of those findings together
with other, non-DNA incriminating evidence. [Citation.] [¶]
The question properly addressed by the DNA analysis is
therefore this: Given that the suspect’s known sample has
satisfied the ‘match criteria,’ what is the probability that a
person chosen at random from the relevant population would
likewise have a DNA profile matching that of the evidentiary
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
The FBI’s RFLP testing compared the known DNA profiles from
Bertsch’s and Hronis’s blood samples to the two unknown DNA
profiles identified in the semen collected on Canady’s vaginal
swab. At all four polymorphic DNA locations (loci) examined in
the RFLP testing, Bertsch and Hronis could not be excluded as
potential contributors. Using the four loci analyzed, Presley
conducted a statistical frequency analysis to arrive at a
statistical probability for a random match. For Hronis, the
probability of an unrelated individual in the Caucasian
population randomly contributing was one in eight million. For
Bertsch, the probability of an unrelated individual in the
Caucasian population randomly contributing was one in
12 million.
Presley later reevaluated his statistical analysis. This
reevaluation, based on a change in FBI RFLP procedure as well
as a newly approved “ceiling principle” analysis, resulted in a
much greater probability that a random person unrelated to
Bertsch or Hronis could have been a contributor to the sample
being tested. As a result, the district attorney moved to dismiss
the case against Bertsch and Hronis without prejudice in order
to “seek independent testing, analysis, and assessment of
sample? That probability is usually expressed as a fraction —
i.e., the probability that one out of a stated number of persons
in the population (e.g., 1 out of 100,000) would match the DNA
profile of the evidentiary sample in question. A greater
probability, that is to say, a fraction with a smaller denominator
(e.g., 1 out of 10,000), would tend to favor the suspect by
increasing the probability that one or more other persons has a
DNA profile matching the evidentiary sample.” (Soto, supra,
21 Cal.4th at p. 523, fn. omitted.)
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scientific issues.” The court granted the motion and released
Bertsch and Hronis from custody.4
While Hronis was out of custody, he spoke with his friend
Loren G. about why he had been arrested for murder. Hronis
claimed that another friend had stolen a woman’s purse and
given Hronis the woman’s credit card. Hronis told Loren G. he
had been arrested for murder because he had used the woman’s
credit card at least four times and the woman had been
murdered soon after. He admitted to Loren G. that his friend
might have murdered the woman.
In 1994, Cellmark Diagnostics laboratory conducted
additional DNA testing using polymerase chain reaction (PCR)
analysis. Dr. Robin Cotton oversaw and reviewed Cellmark’s
testing, which used both DQ-Alpha and Polymarker
techniques.5 The results of both tests showed that neither
4
The district attorney refiled charges against Bertsch and
Hronis in April 1995.
5
“PCR is ‘a molecular biology technical procedure for
exploiting genetic differences in DNA,’ whereby small pieces of
DNA are copied or amplified. The technique is employed when
the DNA sample available is too small and/or degraded to
perform a more common type of DNA analysis known as RFLP.”
(People v. Morganti (1996) 43 Cal.App.4th 643, 662 (Morganti).)
PCR analysis may be used “to amplify a specific gene known as
the DQ alpha. The DQ alpha gene codes for proteins found on
the surface of the white blood cell and is known to have alternate
genetic forms, i.e., the gene does not look the same in all people.
Six variations (or alleles) have been identified and labeled as
1.1, 1.2, 1.3, 2, 3 and 4. Because alleles are inherited in pairs,
one from each parent, there are twenty-one possible
combinations which are referred to as genotypes.” (Ibid.)
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Bertsch nor Hronis could be excluded as contributors to the DNA
samples found in sperm extracted from Canady’s vaginal swab
and anal swab.
Genetic statistics expert George Sensabaugh conducted a
random match calculation using the FBI and Cellmark test
results. For the FBI’s RFLP results, he calculated that 99.6
percent of the Caucasian population, 99.99 percent of the
African American population, and 99.92 percent of the Hispanic
population could be excluded as contributors of the semen
collected on Canady’s vaginal swab. For Cellmark’s DQ-Alpha
and Polymarker results, Sensabaugh calculated that 99.75
percent of the Caucasian population could be excluded from
possible contributors.
In March 1998, DOJ criminalist Renee Montgomery
conducted a second round of DQ-Alpha testing on the samples.
She first retested the reference samples, concluding that
Bertsch’s genotype at the DQ-Alpha locus was a 2, 2, Hronis’s
genotype was a 1.2, 1.2, and Canady’s genotype was a 4.1, 4.1.
Montgomery then retested the anal swab sperm fraction,
“In the forensic setting, PCR analysis of DQ alpha involves
three general steps. First, DNA is extracted from the nucleus of
cells present in an unknown bloodstain. Second, the DQ Alpha
is replicated or amplified by a process which involves combining
the DNA with a commercially available solution or ‘cocktail’ and
then subjecting the solution to a series of controlled temperature
cycles. Finally, the amplified gene is typed in order to identify
the alleles present in the amplified DNA.” (Morganti, supra,
43 Cal.App.4th at p. 662, fn. omitted.)
A Polymarker analysis is a different kind of PCR test that
“compare[s] five different genes rather than the single gene used
in the DQ-Alpha test.” (People v. Jones (2013) 57 Cal.4th 899,
935 (Jones).)
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confirming the presence of more than one source of DNA in the
sample. The major donor genotype matched Bertsch’s genotype
of 2, 2. Montgomery determined the minor genotype was a 1,
but she was unable to conclude whether the subtype was a 1.2
or 1.1 based on the intensity of the dots. Montgomery
determined an individual with a 1.2 genotype, such as Hronis,
could not be excluded as a contributor of the second source of
DNA.
DOJ criminalist Steven Myers performed further DNA
testing using Short Tandem Repeat (STR) analysis in
combination with PCR testing.6 The subject DNA included
additional DNA extracted from Canady’s underwear. Myers
compared the measurements of alleles at nine different STR loci.
The allele readings observed in the sperm fraction extracted
from Canady’s anal swab were identical to the allele readings in
Bertsch’s reference sample at all nine loci. Myers calculated
that this profile occurred randomly in the Caucasian population
at a rate of one in 2.4 trillion individuals. Additional allele
6
“STR’s are sets of four nucleotide units of base pairs on the
DNA strand.” (People v. Cordova (2015) 62 Cal.4th 104, 128
(Cordova).) PCR testing using STR (also called PCR-STR) looks
at different STR “that are on specific identified areas of different
chromosomes.” (Id. at pp. 127–128.) “ ‘PCR-STR testing has
many advantages over RFLP testing. It can test a far smaller
sample than RFLP testing requires. It is less susceptible to
sample degradation. It is simpler and less time consuming.
Additionally, . . . “[w]ith the ability to compare numerous loci,
the discrimination power of PCR-STR testing is extremely
high.” ’ [Citation.] As the high court has summarized, since ‘the
mid-1980’s, there have been several major advances in DNA
technology, culminating in STR technology.’ ” (Id. at p. 127,
quoting District Attorney’s Office for Third Judicial Dist. v.
Osborne (2009) 557 U.S. 52, 62.)
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readings observed in the sperm fraction extracted from
Canady’s underwear were also identical to the allele readings in
Bertsch’s reference sample at all nine loci, resulting in the same
random match probability. The allele readings from Canady’s
underwear matched the allele readings in Hronis’s reference
sample at seven of nine loci. For the second donor profile
matching Hronis’s profile, Myers calculated this pattern of
matching would also occur randomly in the Caucasian
population at a rate of one in 2.4 trillion individuals.
2. Defense evidence
Hronis did not testify or offer evidence at the guilt phase
of trial.
Bertsch’s defense focused on handwriting evidence, the
timing of another store robbery in Sacramento, the timing of the
discovery of Bertsch’s vehicle in Sacramento, and disputing the
prosecution’s DNA evidence with his own experts. Bertsch also
testified in his defense.
A DOJ handwriting expert testified that Bertsch probably
did not write the signatures on six of the credit card receipts. A
forensic document examiner testified that Bertsch very probably
did not sign the credit card receipts.
Two clerks who worked at a Sacramento clothing store on
December 23, 1985, testified that a man came into the store and
robbed them at gunpoint. One of the clerks participated in a
lineup and indicated that Hronis looked like the person who had
robbed the store.
On January 3, 1986, Roseville Police Officer Michael
Jones noticed Bertsch’s abandoned AMC Rebel while on an
afternoon jog. At the time, he jogged past the same location
nearly every day. When Jones contacted law enforcement, he
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mentioned he had not observed the vehicle before January 3.
Jones testified he had no independent recollection of having
seen the car there prior to January 3, but that January 3 was
probably the day he first made the connection.
Dr. Laurence Mueller and Dr. Kenneth Berger testified
regarding what they perceived to be flaws in the DNA testing
and analysis presented in this case. Mueller provided
alternative methods of calculating random matches and opined
the chances of random matches were much higher than
Sensabaugh’s or Cotton’s calculations. He opined that there was
an inherent problem with using population databases and the
product rule to calculate probabilities for the loci included in the
STR testing. However, he did not redo any of Myers’s
calculations based on the STR testing, and he conceded that a
random match would be extremely rare. Berger also did not
offer any new calculations under the STR testing but instead
testified that the troubleshooting of the machine used in the
DOJ’s STR testing signaled that this particular type of STR
testing was still in the development stage, which undermined
the results of the tests. He also opined that the DOJ should have
conducted additional validation testing.
Bertsch testified in the presence of both juries. He
maintained that he did not kidnap, rape, or murder Canady. He
admitted to participating in four or five convenience store
robberies with Hronis in December 1985. He said that Hronis
and Jerry B. had also committed separate robberies on their
own. Bertsch claimed that a woman owned the white AMC
Rebel, and that Hronis and Jerry B. drove it.
Bertsch also confirmed he and Hronis moved out of the
Plaza Motel on December 19 after the local news ran a story
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about the robberies. Bertsch claimed he intended to cut ties
with Hronis and Jerry B. because of the law enforcement
pursuit and that he dropped off Hronis and Jerry B. at Jerry B.’s
mother’s home. Bertsch parked the Rebel next to other
abandoned cars in an open field near a motel but later moved it
to Old Fairgrounds Drive.
Bertsch testified that he stayed in Sacramento until
March 1986, when he traveled by bus to Denver. He ultimately
settled in Atlanta. In 1987, he was convicted of manslaughter
and aggravated assault and spent three years in a Georgia state
prison. In 1990, he was extradited to California and charged
with Canady’s murder.
B. Penalty Phase
1. Bertsch
The prosecution’s case in aggravation against Bertsch
included details of Bertsch’s criminal history and victim impact
testimony. Bertsch’s half sisters testified about numerous times
Bertsch sexually and physically abused them growing up.
Witness testimony from Bertsch’s 1987 trial for voluntary
manslaughter and aggravated assault was read into the record.
The testimony revealed that Bertsch had stabbed two people,
one of whom died from her wounds. Jerry B. also testified about
two other occasions on which he saw Bertsch stab people.
Canady’s parents testified about how their daughter’s
murder devastated them and otherwise impacted their family.
Bertsch’s evidence in mitigation included testimony from
individuals who knew Bertsch through school or church and
described his disposition favorably. Three mental health
professionals also testified. A retired corrections psychologist
opined that Bertsch would make an adequate adjustment to life
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Opinion of the Court by Guerrero, C. J.
in prison. A clinical neuropsychologist testified that Bertsch
had significant neuropsychological deficits in his cognitive
functioning, which made him more impulsive. A forensic
psychologist testified that Bertsch suffered from antisocial
personality disorder and substance abuse disorder, but he was
“not a completely bad person.”
2. Hronis
The prosecution’s case in aggravation against Hronis
included victim impact testimony from one of the robbery
victims and from Canady’s sister. Canady’s parents testified
about the devastating impact of her murder on them and their
family. In addition, the prosecution presented evidence that
Hronis had been convicted of second degree burglary in 1977.
Hronis represented himself at the penalty phase. He did
not offer evidence in his own defense, testify, or give a closing
argument.
II. DISCUSSION
A. Pretrial and Guilt Phase Issues
1. Hronis’s competency proceedings
Hronis asserts various claims of error relating to his
mental competence to stand trial. He contends the trial court’s
initial competency determination did not satisfy federal
constitutional requirements and, alternatively, the proceedings
were too superficial to support the court’s finding that he was
competent. He also claims the court should have appointed the
Director of the Regional Center for Developmental Facilities as
an additional competency expert. He further maintains the
court abused its discretion when it declined to reinstitute
competency proceedings based on new evidence. We conclude
Hronis’s arguments lack merit.
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a. Factual and procedural background
After Hronis was arrested for Canady’s murder, he
claimed to have a religious revelation where God spoke to him
and told him he would be delivered, i.e., be found not guilty or
otherwise escape the charges against him. He relayed this
experience to his attorneys and the trial court on numerous
occasions. Hronis’s faith in the veracity of his religious
revelation and his refusal to cooperate with his attorneys to
prepare for a possible penalty phase defense provided the basis
for his attorneys’ expressions of doubt regarding Hronis’s
competence.
i. Initial competency proceedings (January–
March 1995)
In January 1995, Hronis’s attorneys filed an expression of
doubt as to Hronis’s mental competence. Defense counsel’s
accompanying declarations stated that Hronis had attended
classes for the educationally handicapped and his IQ level was
once tested at 69. Defense counsel noted that Hronis refused to
allow a mental health professional to evaluate him, but that two
psychologists who had either met with Hronis or learned of his
mental rigidity believed Hronis was not competent.
The trial court suspended criminal proceedings to allow
for a formal evaluation and determination of Hronis’s mental
competence to stand trial. It appointed Dr. Shawn Johnston
and Dr. Ted Kobashigawa to examine Hronis and file reports
with the court. After each doctor administered a clinical
interview of Hronis and reviewed relevant background
documents, both determined Hronis was competent to stand
trial.
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Johnston’s and Kobashigawa’s reports described Hronis’s
ability to understand the legal proceedings and to assist counsel.
As reflected in their reports, both experts considered Hronis’s
belief that God would deliver him from this case in evaluating
whether he was competent to stand trial.
Regarding Hronis’s intellectual functioning, Johnston
found that Hronis “appear[ed] to be functioning in the
borderline to low average” range. To this end, after
administering the Bender-Gestalt Test to Hronis, Johnston
believed the test results suggested Hronis may suffer from
psychoneurological deficits and/or learning disabilities.
However, Johnston concluded that there was no indication that
Hronis was suffering from any significant cognitive deficit.7
Johnston characterized Hronis’s professed religious
revelation as “a clear demonstration of Mr. Hronis’s narcissism
and grandiosity” and “not . . . connected with any mental illness
whatever but, rather, is part and parcel of the Antisocial
Personality Disorder from which he obviously suffers.”
Johnston pointed to the isolated nature of Hronis’s purported
communication with God and the selective manner in which he
utilized it. Johnston noted that Hronis used the revelation to
explain his rejection of his attorneys’ advice to accept a plea
bargain offer, yet at the same time followed his attorneys’ advice
not to speak with Johnston about the circumstances of the case.
He added that Hronis’s religiosity was “remarkably common
7
Johnston’s conclusion as to Hronis’s intellectual
functioning was echoed by Dr. Janice Nakagawa, a court
appointed psychologist, who later opined that there was “no
evidence that [Hronis] suffers from any significant cognitive or
developmental problems or delays.”
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among sociopaths in trouble who are attempting to distance
themselves from the potential consequences of their antisocial
behavior” and that “he understands exactly what he is doing”
but “may not always be candid with regard to his true motives
or intentions.”
Kobashigawa’s report likewise considered Hronis’s
“significantly religious” views and his belief he would be found
innocent by divine intervention. Kobashigawa observed that,
despite these views, Hronis “seemed to acknowledge that what
may happen in the future may not be predictable or exactly what
he may want” and exhibited “significant flexibility” concerning
his religious views. Kobashigawa determined Hronis’s extreme
religiosity did not approach delusional status and concluded he
was able to understand the nature of the criminal proceedings
against him and probably able to assist counsel in the conduct
of a defense in a rational manner.
Concerning Hronis’s intellectual ability, Kobashigawa
found Hronis’s intelligence “to be in the average range” and did
not believe that he was “of low intelligence.”
In March 1995, following the submission of Johnston’s and
Kobashigawa’s reports, Hronis waived his right to a jury trial on
the issue of competence and agreed to submit the matter on the
experts’ reports. Based on the reports, the trial court
determined Hronis was competent to stand trial. It found that
Hronis “understands the nature of the proceedings, and if he
wishes to do so, he can assist counsel in the defense of this case.”
The court then reinstated criminal proceedings.
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ii. Subsequent Marsden hearings and
discussions regarding competence
Over the next few years, a dispute arose between Hronis
and his attorneys regarding access to various documents. At
Marsden8 hearings in 1997 and 1999, Hronis complained that
he was denied access to various witness statements and could
not assist in his defense without them. Defense counsel
acknowledged they were using the documents as leverage to get
Hronis to assist with the penalty phase, since Hronis believed
he would be delivered and did not need to talk about any
possible penalty. Hronis complained about defense counsel’s
tying his ability to review guilt phase evidence to him speaking
with a doctor, and he claimed defense counsel had confided that
the competency proceeding was “a stall tactic.” The trial court
denied Hronis’s Marsden motions.
In January 2000, the guilt phase of trial began. One
month later, the court held another Marsden hearing to address
Hronis’s concern that the jury would notice his dirty appearance
during trial and connect it to the evidence being presented. In
response, defense counsel worried that Hronis only appeared
concerned about looking good and was apparently not bothered
by the incriminating testimony because of his religious
revelation. Hronis replied that he was concerned about the
testimony, and his Marsden request was not related to the
revelation.
Defense counsel asked the court to suspend proceedings
and declare a doubt of mental competency based on the record.
The court denied the Marsden motion because the relationship
8
People v. Marsden (1970) 2 Cal.3d 118.
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between counsel and Hronis had not fundamentally broken
down. It asked defense counsel to confirm whether he was
requesting the court to express a doubt regarding Hronis’s
competency. Defense counsel responded, “I think we have to.
Well, yes, I just don’t know that I can say anything else about
that.” The court stated it would reflect on that with counsel and
adjourned for the day.
The following week, the court held an in camera hearing
to address defense counsel’s “oblique references on the record
that arose from the expression of doubt stated not by the Court
but by the counsel in the context of Mr. Hronis’ most recent
Marsden motion.” Counsel represented that they had attempted
to contact Dr. John Podboy, a psychologist who had spent some
time with Hronis, but they were unable to do so and therefore
could not secure any kind of psychological evaluation to
supplement the record from the prior competency hearing.
Counsel recounted that Podboy had relayed to them that
Hronis’s competence could begin to deteriorate if his religious
revelation did not come to fruition. Counsel wanted to develop
additional support, so they asked the court to delay ruling on
the ultimate question of whether to appoint doctors to assess
Hronis’s competence. The court found it did not currently have
a basis to express a doubt, and therefore did not appoint any
experts, but it gave defense counsel continuing leave to revisit
the issue.
Later that day, Hronis made another Marsden request
based on his view that his counsel was attempting to have him
declared incompetent. Hronis again complained that his
attorneys were using competency claims as a stall tactic and a
tool against him, stating, “If I get out of line, or he don’t like the
way what I am doing, he’ll throw this at me and uses it as a tool
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Opinion of the Court by Guerrero, C. J.
against me.” The court again found the issues Hronis
complained of were properly within the discretion of defense
counsel and denied the Marsden motion.
In March 2000, after Loren G. had testified about Hronis’s
confession to using Canady’s credit cards, Hronis again
requested a Marsden hearing. He complained that his counsel
had not adequately investigated or cross-examined Loren G.,
even though Hronis had been complaining for years about access
to documents relating to investigation of church members
(including Loren G.). Defense counsel replied that they had
investigated Loren G. and listened to Hronis’s proposal, but
they had exercised their judgment and rejected it. The court
denied Hronis’s Marsden request, finding that the focus of
Loren G.’s cross-examination was well within the discretion of
counsel.
On April 12, 2000, outside the prosecution’s presence,
Hronis’s counsel expressed a doubt regarding Hronis’s
competency to stand trial. They cited Hronis’s consistent refusal
to participate in a mental health evaluation or accept a plea
bargain offer, based on his asserted religious revelation and
message from God that he would not be convicted.
Counsel shared that they had retained Podboy to assess
the presence of certain mitigating factors relating to penalty,
namely, whether Hronis acted under extreme duress or
substantial domination of Bertsch, whether Hronis was able to
appreciate the criminality of his conduct due to mental disease
or intoxication, and whether there were any other extenuating
circumstances related to the crime. They represented that
Podboy had interacted with Hronis beginning in April or May
1999 in a casual manner, not as a clinician, to gain Hronis’s
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
trust. Podboy met with Hronis approximately 15 or 16 times
over a period of six or seven months. In counsel’s view, Podboy
was making progress on establishing a basis for Hronis to be
persuaded to participate in mental health testing in the event of
an adverse verdict in the guilt phase of trial. The last visit
occurred four months before, on December 20, 1999. By that
point, however, the prosecution had become aware of Podboy’s
visits, which it disclosed in open court during jury selection.
Hronis accused Podboy of attempting to produce evidence that
could be used at the guilt phase and ended the relationship.
To support their expression of doubt regarding Hronis’s
competence, defense counsel called Podboy to testify under oath
regarding the extent of his communications with Hronis. He
briefly described his “positive” visits with Hronis between May
and December 1999. He confirmed that these visits came to an
end on December 20, when Hronis was very upset about the
recent court hearing in which the prosecution represented that
Podboy may offer evidence at the guilt phase. Although Podboy
assured Hronis that he had not spoken to his attorneys about
participating in the guilt phase, Hronis made clear that “he
wanted nothing more to do with” Podboy.
Defense counsel then summarized a subsequent meeting
between counsel and Podboy. Podboy conveyed that “although
he has at least some preliminary impressions that would be
founded on forensic issues, . . . he would not come to court to
testify about them for a variety of reasons, not the least of which
is that he does not have available data that he feels would be
necessary to reach the level of reasonable medical or
psychological” meetings or interviews necessary to form an
opinion. Counsel proposed to keep Podboy apprised of
developments in the case due to concerns relating to Hronis’s
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
mental competency, noting they had sent him copies of prior
Marsden hearings and shared certain communications between
Hronis and his attorneys. Podboy opined to counsel that as time
went on, Hronis “would become more and more fixed in his
delusion, more likely to deteriorate; that his cooperation with
[them] would, as a result of his delusional thinking process,
reach the point where he very likely would decompensate and
be unable to cooperate in any way.” Defense counsel recalled
Podboy suggesting that the “revelation is going to come in such
serious conflict with the reality of the evidence and an ultimate
guilt verdict, that you are going to end up with a psychotic client
and that he will explode, psychically explode.”
The court asked Podboy whether he believed Hronis was
competent to proceed with trial. Podboy responded that, based
on his review of Hronis’s statements during the Marsden
hearings and his conversations with counsel, he was “certainly
of the opinion that this individual is incompetent.” He explained
that Hronis’s sole focus was on what he would do after his
release from jail and that he “is delusional to the extent that he
is convinced that there is no way that he could possibly be found
guilty and held to answer on these charges.” Defense counsel
reiterated their position that Hronis’s refusal to cooperate was
not by choice but was based on his religious delusion. They
viewed Hronis as having “a peculiar kind of disability” that
interfered with his ability to cooperate with counsel but not his
ability to understand the proceedings. Counsel described
Hronis’s thinking as “delusional” and “crazy,” adding: “And I
don’t care what you want to call it; he won’t do what’s in his best
interest to save his life.”
Hronis then made a Marsden motion so he could speak to
the court regarding his competency. He repeated his belief that
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God would deliver him, analogizing his case to a biblical story in
which God had intervened to prevent the execution of a man who
had committed adultery. He reiterated that counsel had tricked
him into participating in the earlier competency hearing by
misrepresenting it was just a stall tactic.
Hronis disputed telling counsel that the revelation
prevented him from participating in the penalty phase, and he
asserted defense counsel had misrepresented his position on this
point. He contemplated the possibility of conviction, and he
stated that if he were to be convicted, then he had
misunderstood God. He added, if he were convicted, “I am not
going to deteriorate, not going to break down.” He also
acknowledged that the pressure of this case at times had caused
his emotions “to spill out,” which he deemed reasonable in light
of the stakes at play. Hronis repeated his complaint about his
attorneys’ failure to properly impeach Loren G. or present
evidence he viewed as exculpatory.
The court denied the Marsden motion. Again, it found
that most of the tactical decisions Hronis complained of fell
within his counsel’s discretion. It declined to make a
competency finding at the time and allowed defense counsel the
opportunity to submit additional evidence.
On April 19, 2000, defense counsel again formally
expressed a doubt as to Hronis’s competence and stated they
would present evidence on the issue. Counsel indicated they
would provide a declaration from a licensed and qualified
psychologist opining that Hronis was currently mentally
incompetent. Informally, based on the current record, the court
stated it had no doubt as to Hronis’s competence, but it
recognized that defense counsel could submit supplemental
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information to show a substantial change of circumstances since
the last hearing. At a subsequent Marsden hearing the
following month, defense counsel represented they would file
additional pleadings regarding Hronis’s competence.
On June 5, 2000, with trial proceeding apace and defense
counsel still not having submitted additional evidence regarding
Hronis’s competency, the trial court decided to articulate on the
record why it had no doubt as to Hronis’s competence. The court
first observed that because a prior competency determination
had been made, there must be a substantial change of
circumstances or new evidence casting doubt on the original
competency determination. The court also noted that it could
consider its personal observations of Hronis, and that it had
done so.
The court acknowledged Podboy’s opinion that Hronis was
incompetent but found the basis for the opinion to be “fairly
thin.” The court also found Hronis’s statements regarding his
revelation were fundamentally the same as in the original
competency proceeding. In fact, the court noted, Hronis’s
statements “were more open in some respects” because Hronis
indicated that he may have misunderstood what he believed
God’s communication to be. Noting that the psychological
reports submitted in connection with the prior competency
proceeding had considered the same sort of statements that
Hronis had more recently made, the court gave their findings
regarding Hronis’s competency substantial weight. The court
emphasized that although Hronis was extremely religious and
professed to have had a revelation, he also articulated some very
strong and specific opinions about the way the case should be
handled, which suggested he had the ability to rationally assist
counsel.
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iii. Renewed competency proceedings
On August 23, 2000, Hronis was found guilty of first
degree special circumstance murder. On August 28, Hronis
made another Marsden request. He complained that his
attorneys wanted to put on a defense at the penalty phase, while
he would prefer to send the jury home, save the state some
money, be first in line to receive the death penalty, and “be with
Jesus” rather than “rotting” in prison waiting for an appeal. He
repeated: “If I can’t be free on the streets, I want to be free with
Jesus. That’s exactly how I feel.” He added, “I’m not out of my
mind, not speaking . . . irrationally. I’m being perfectly honest
with you, Judge. [¶] Let’s just save the state the money, send
the jury back home. Let them go back in their lives. Shut this
whole process down.” The court noted for the record that Hronis
was “soft spoken, deliberate, and composed.”
In response, defense counsel stated that they had just filed
a formal motion expressing a doubt as to Hronis’s mental
competency (Motion 820), which was supported by declarations
from defense counsel and Podboy. Defense counsel made clear
that unless they were removed as counsel, they would present a
penalty phase defense “contrary to [Hronis’s] wishes and desires
as expressed,” which presented a “very real conflict.” They
added that Hronis’s Marsden motion sounded more like a
Faretta motion.9
The court denied the Marsden motion, noting that counsel
had discretion to present a penalty defense against a
9
Faretta v. California (1975) 422 U.S. 806 at pp. 832–835
(Faretta) held that a defendant has a constitutional right to
proceed without counsel when the defendant voluntarily and
intelligently elects to do so.
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defendant’s wishes. It stated nothing in the hearing had raised
a doubt in the court’s mind regarding Hronis’s mental
competency, but it would carefully review Motion 820. It ended
in camera proceedings to allow Hronis to make a Faretta motion
in open court.
In Motion 820, defense counsel alleged new competency
proceedings were required because there had been a substantial
change of circumstances and new evidence cast serious doubt on
the validity of the court’s previous competency finding. The
alleged change of circumstances or new evidence was that
Hronis, since the last competency hearing in 1995, had conveyed
certain information to counsel that could be considered
mitigating at the penalty phase and counsel believed it was
irrational for Hronis not to allow the information to be used as
mitigation.
Attached to Motion 820 were declarations from defense
counsel and an unsworn report from Podboy, which was
addressed to defense counsel. In his report, Podboy opined that
Hronis suffered from a delusional disorder based on his asserted
special relationship with God. The report described Podboy’s
observations of Hronis on August 19 and 20, when Podboy
visited him in jail during jury deliberations. Podboy believed
Hronis’s cognitive and emotional function at that point was
deteriorating. He cited Hronis’s comparison of himself to King
David, his recent 21-day fast to communicate with God, and his
steadfast belief during jury deliberations that he would be
released from prison.
Podboy’s report also described his personal observations of
Hronis’s mental state after the jury found him guilty. Podboy
wrote, “Hronis presented as completely psychotic, irrational,
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and unable to respond to even the . . . simplest form of questions
which, in many cases, were put to him repeatedly and in a
variety of forms.” Podboy opined that this sort of
decompensation was typically seen with individuals suffering
from a paranoid type of schizophrenia. He added, “While
opinions may differ to some extent about the exact diagnosis in
regard to Mr. Hronis, which is made far more difficult by the
absence of a psychometric database, there would appear to be no
doubt whatsoever that Mr. Hronis is actively psychotic. He is
unable to interact with his attorneys in a rational and
meaningful manner about any topic whatsoever.”
The court held an in camera hearing to allow defense
counsel to explain the basis for their continued belief that
Hronis was mentally incompetent. Defense counsel requested
the court unseal Motion 820, which, as noted, included Podboy’s
report and counsel’s declarations, and which referenced the
mitigating information Hronis had conveyed to counsel. After
confirming with Hronis that he wanted his statements to
counsel to remain confidential, the court determined the
statements came within the attorney-client privilege. The court
ordered Motion 820 to remain sealed, but it said it would apprise
the prosecution of the subject matter of the motion. The court
also said it would give the prosecution Podboy’s report, with two
redactions to remove references to Hronis’s statements.
The court then allowed the prosecution into the courtroom.
It announced that defense counsel had filed a motion to express
a doubt regarding Hronis’s competency, which the court had
ordered sealed from the public because of potential prejudice. It
would, however, provide the prosecution with a partially
redacted version of Podboy’s report. The court also indicated its
intent to seek an advisory opinion from a court-approved
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medical expert, although it was specifically not expressing a
doubt at that time.
On September 1, 2000, the court appointed Dr. Janice
Nakagawa to render an advisory opinion on Hronis’s mental
competence. The court provided her with copies of the previous
psychological reports from Johnston, Kobashigawa, and Podboy
(with the same two redactions). Nakagawa conducted a clinical
interview with Hronis on September 7 and submitted her
advisory report the following week.
In her report, Nakagawa stated that she had reviewed the
prior medical reports and personally observed Hronis. She
described Hronis as alert, oriented, and cooperative. She noted
that he seemed to become a little agitated when discussing
religious convictions, and it was evident Hronis exhibited a
quality of religious fervor. However, Nakagawa observed, “this
did not appear to manifest in any frankly delusional
symptomatology.” She stated his speech was “relevant, goal-
oriented, and coherent, with no evidence of any underlying
psychotic symptoms.” Nakagawa detected “some evidence of
grandiosity and narcissism, as well as a clear antisocial
dynamic,” but she determined “these appeared to be directly
related to underlying personality disorder dynamics rather than
any signs of mental illness.”
Nakagawa recommended Hronis be declared mentally
competent. She described Hronis as possessing “very rigid,
fundamentalist religious beliefs,” but opined “this religious
fervor is not atypical of a fairly large segment of the general
population.” She added, “While he may be an individual who is
not very well integrated psychologically, he does not evidence
any frankly delusional or psychotic symptomatology. There is
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no evidence that he suffers from any significant cognitive or
developmental problems or delays. Additionally, despite his
rigidly fundamentalist religious perspectives, there is no
evidence to suggest that he would not be able to make reasoned
decisions regarding all matters pertaining to his case or assist
counsel in conducting a defense in a rational manner.”
On September 13, 2000, the court formally denied defense
counsel’s motion to declare a doubt as to Hronis’s competency.
The court stated that it had reviewed the lengthy evidentiary
record regarding Hronis’s competency and it had considered its
own personal observations in making its ruling.
First, the court noted that every medical report had
described Hronis’s religious language and statements
consistently, and the court had observed Hronis use the same
language on occasion. Regarding Podboy’s report to defense
counsel, the court stated that it found certain aspects of the
report “troubling.” For example, the court viewed the report’s
skepticism of Hronis’s fasting based on his religious beliefs as
“reflect[ing] bias or pre-orientation.” It described Podboy’s
reliance on Hronis’s fasting as “extraordinarily weak,” noting
that “[i]t’s common knowledge . . . that the bulk of the religions
in the world have fasting periods,” including new sects of
Christianity that encourage and promote fasting for extended
periods of time “as one of the tools to help gain insight and
spiritual enlightenment.” The court also noted the “thinness” of
Podboy’s opinion as expressed during the prior hearing. The
court noted the “remarkable similarity and continuity” among
the reports from Johnston, Kobashigawa, and Nakagawa, the
last of whom met with Hronis following the jury’s guilty verdict.
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The court also described its personal observations of
Hronis throughout the proceedings. It found that Hronis was
“occasionally difficult” and “highly religious,” but that he
seemed to understand what was going on, even after the jury
rendered its guilty verdict. The court explained it had decided
to request an additional advisory opinion from Nakagawa
because the court’s personal observations “were so strongly,
firmly, diametrically opposed to Dr. Podboy.” The court posited
that perhaps one of the reasons that Podboy’s report was “so
extraordinarily different” from the other reports, and from the
court’s own observations, was that Podboy had interviewed
Hronis just two days after he was convicted of first degree
murder with special circumstances, which in the court’s view
would have a substantial impact on anyone.
The court reasoned, “People who are competent . . . can
make what the Court thinks are not rational decisions. [¶] I
don’t think it’s a rational decision for a person to go Pro Per in a
penalty phase, but people can make those decisions under the
law. Decisions that the trial judge and the counsel may think
are improper decisions. [¶] Decisions which are, from our
perspective, not correct, [can] still be competent under the law.
And that’s I believe exactly what we have here.”
Defense counsel objected to the trial court’s ruling as
improperly making findings and conducting a truncated
competency trial in violation of Hronis’s due process rights. The
court noted the objection and ended the in camera hearing.
As discussed in more detail below (see pt. II.B.1.a., post),
the court subsequently granted Hronis’s request to represent
himself at the penalty phase and ordered his attorneys to serve
as standby counsel and attend all further proceedings. Hronis’s
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penalty phase trial began on September 18, 2000. As noted,
Hronis did not offer evidence in his own defense, testify, or give
a closing argument.
b. Analysis
i. Constitutionality of California’s statutory
competency scheme
Hronis first contends that California’s standard of
competence as set forth in section 1367 is insufficiently
protective, and therefore unconstitutional, because it requires a
showing of a mental disorder or disability while the federal
Constitution requires only a present inability to assist counsel.
We disagree.
The due process clause of the federal Constitution
prohibits the criminal trial of an incompetent defendant.
(Cooper v. Oklahoma (1996) 517 U.S. 348, 354; U.S. Const., 14th
Amend.) In Dusky v. United States (1960) 362 U.S. 402 (Dusky),
the United States Supreme Court described the test of a
defendant’s competence to stand trial as “whether he has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding — and whether he
has a rational as well as factual understanding of the
proceedings against him.” (Id. at p. 402.)
California law likewise prohibits the state from trying or
convicting a criminal defendant who is mentally incompetent.
(People v. Sattiewhite (2014) 59 Cal.4th 446, 464 (Sattiewhite);
§ 1367, subd. (a).) Section 1367 provides that a defendant is
mentally incompetent “if, as a result of a mental health disorder
or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.”
35
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
(§ 1367, subd. (a).) “ ‘ “Both federal due process and state law
require a trial judge to suspend trial proceedings and conduct a
competency hearing whenever the court is presented with
substantial evidence of incompetence, that is, evidence that
raises a reasonable or bona fide doubt concerning the
defendant’s competence to stand trial.” ’ ” (Sattiewhite, at
p. 464.)
We have repeatedly rejected the argument that
section 1367 is insufficiently protective. In People v. Stanley
(1995) 10 Cal.4th 764 (Stanley), we held that the high court’s
competency standard and section 1367 are identical “ ‘[t]o
anyone but a hairsplitting semanticist.’ ” (Stanley, at p. 816; see
People v. Lightsey (2012) 54 Cal.4th 668, 691 [“The applicable
state statutes essentially parallel the state and federal
constitutional directives”].) More recently, we considered a
similar constitutional attack on section 1367’s definition of
mental incompetence because it refers to a mental disorder or
developmental disability. (People v. Buenrostro (2018) 6 Cal.5th
367, 387 (Buenrostro).) Construing this argument as a facial
attack on the statute, we held that “defendant has failed to
demonstrate that section 1367, subdivision (a), is facially
invalid; indeed, she has failed to identify any case (including her
own) in which section 1367’s mental disorder or developmental
disability requirement results in the violation of due process.
Contrary to her argument, the due process right not to be tried
while incompetent has long been understood in terms of the
causal relationship between the defendant’s mental condition
and his or her trial-related functional abilities.” (Id. at p. 388,
fns. omitted.) Indeed, as we noted in Buenrostro, the high court
has upheld the competency statutes of other states that contain
similar language. (Buenrostro, at p. 389, citing Drope v.
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
Missouri (1975) 420 U.S. 162, 173.) Thus, consistent with our
reasoning in Stanley and Buenrostro, we conclude Hronis’s facial
challenge to section 1367 is unpersuasive.
For similar reasons, we disagree that section 1367 is
unconstitutional as applied to Hronis. Hronis argues that there
exists in some individuals a “religious fervor” that is “so extreme
that an accused has irrational beliefs so pervasive they render
the individual unable to rationally cooperate with counsel in the
preparation of a defense.” He then contends that he is such a
person and his extreme religious beliefs would render him
incompetent under the federal standard. Yet, as discussed,
section 1367 is consistent with the federal standard.
(Buenrostro, supra, 6 Cal.5th at p. 389.) Hronis has not
identified any constitutional infirmity in its application here.
Indeed, although the federal standard does not explicitly require
a mental disorder or disability, some form of disorder or
disability is essentially implied. A person’s inability to consult
with counsel, as opposed to mere unwillingness, is necessarily
associated with a mental disorder or disability, whether or not
attributed to a specific medical diagnosis. (See ibid. [mental
incompetency standard “does not require a specific medical
diagnosis drawn from the current version of the Diagnostic and
Statistical Manual of Mental Disorders”].) However, “[a]n
uncooperative defendant is not tantamount to an incompetent
one.” (People v. Parker (2022) 13 Cal.5th 1, 29.) In the absence
of evidence that a defendant’s refusal to consult with counsel is
the product of some form of mental disorder or disability, a
person who does not consult with counsel based on his or her
religious beliefs is not incompetent, even under the federal
standard. (See Buenrostro, at p. 388, fn. 10 [“cultural
differences alone do not give rise to a lack of capacity to
37
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
understand the nature of the proceedings or assist counsel in
preparing a defense, as the Dusky standard requires”]; see also
People v. Lewis (2008) 43 Cal.4th 415, 526 (Lewis) [competency
hearing not required where a defendant is unwilling, but not
unable, to consult with counsel]; Parker, at p. 30 [declining to
conclude that the defendant’s behavior resulted from mental
illness as opposed to unwillingness to cooperate]; People v.
Mendoza (2016) 62 Cal.4th 856, 879 (Mendoza) [jury considering
evidence of defendant’s “religious preoccupation” could
reasonably credit “expert’s explanation that defendant was not
unable but rather was choosing to avoid discussion of the crimes,
his personal history, and any other negative material”]; id. at
p. 895 [rambling, religion-infused comments by the defendant at
sentencing did not give rise to the need for a renewed
competency hearing].) As discussed below, the evidence
supports the trial court’s determination in this regard.
In his reply brief, Hronis claims that “it is reasonably
possible that a different result would have been reached if the
trial court, the appointed doctors, and counsel on both sides had
understood the correct standard as subsequently clarified in
Buenrostro.” Hronis thus relies on language in Buenrostro, in
which we said that, although the “statute requires that the
defendant show that, because of a mental disorder or
developmental disability, he or she is unable to understand the
nature of the proceedings or to rationally assist in his or her own
defense” it does “not require that the defendant’s mental
disorder fit neatly within the standard diagnostic taxonomy.”
(Buenrostro, supra, 6 Cal.5th at p. 389.) But the trial court here
expressed no confusion in this regard.
Further, Hronis’s claim is unpersuasive because it rests
on the faulty premise that Buenrostro “clarified” the standard in
38
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
section 1367. Yet, well before Buenrostro, we held that
section 1367 embodied the federal competency standard. (See,
e.g., Stanley, supra, 10 Cal.4th at p. 816.) And Hronis has not
pointed to anything in the record suggesting that our further
discussion of the standard in Buenrostro would have affected the
trial court’s competency determination. For these reasons, we
conclude that Buenrostro does not suggest a different conclusion
regarding the determination that Hronis was competent to
stand trial.
ii. Sufficiency of the 1995 competency
proceedings
Alternatively, Hronis contends the 1995 competency
proceedings were too superficial to support the trial court’s
determination that Hronis was competent to stand trial and
that these proceedings violated his constitutional right to a fair
trial. We disagree.
“The law presumes a person is competent to stand trial.
[Citation.] ‘When the defendant puts his or her competence to
stand trial in issue, the defendant bears the burden of proving
by a preponderance of the evidence that he or she lacks
competence.’ ” (Buenrostro, supra, 6 Cal.5th at p. 387.)
As an initial matter, by waiving his right to a jury trial
and agreeing to submit the competency determination on the
expert reports, Hronis has waived any objection to the
sufficiency of the proceedings. (People v. Weaver (2001)
26 Cal.4th 876, 904 (Weaver) [“To the extent defendant attempts
to impugn the validity of the appointed experts’ conclusions on
grounds they failed to consider the effect of defendant’s
medication on his competency, the time to raise such a challenge
has long since passed. Having submitted the competency
39
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
determination on the two psychiatric reports, defendant may
not now relitigate that question with arguments he did not make
below”].)
Hronis’s claim also fails on the merits.10 The procedure
used here, submission to the court of the issue of competence to
stand trial based on psychiatric reports, is permissible. (Weaver,
supra, 26 Cal.4th at p. 903.) A defense attorney is not precluded
“from waiving a jury, forgoing the right to present live
witnesses, and submitting the competency determination on the
psychiatric reports filed with the court.” (Id. at p. 904.)
In People v. McPeters (1992) 2 Cal.4th 1148 (McPeters), we
rejected the claim that submitting on the issue of competence
based on expert reports deprives a defendant of any of his rights.
We reasoned: “Section 1368 entitles defendant to a ‘hearing’ on
the issue of competence and he received one. Although
defendant’s counsel, for understandable reasons, elected to
waive certain available incidents of the hearing procedure, i.e.,
the right to jury trial and the rights to present oral testimony
and to confront and cross-examine witnesses, defendant
presented evidence and received an independent judicial
determination of his competence to stand trial based on the
stipulated record. [Citation.] [¶] . . . Because defendant had a
hearing and does not show it was in any significant way
incomplete or unfair, we reject his contention.” (Id. at p. 1169;
10
To the extent Hronis’s argument could be construed to
extend to defense counsel’s initial failure to offer evidence to
support the request for a competency hearing, any potential
claim of ineffective assistance of counsel based on this omission
may be raised in a habeas corpus proceeding, not on direct
appeal. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
40
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
accord, People v. Lawley (2002) 27 Cal.4th 102, 131–132
(Lawley).)
Here, as in McPeters, the prosecutor and defense counsel
stipulated the matter would be presented to the court for
determination based on Johnston’s and Kobashigawa’s reports.
(McPeters, supra, 2 Cal.4th at p. 1168.) These expert reports
provided a valid basis for adjudicating Hronis’s competence.
Both experts opined that Hronis was competent after
administering several psychological tests, interviewing Hronis,
and questioning him at length about his religious beliefs. They
found no indications of significant cognitive defect, active
psychotic symptomatology, or significant emotional or cognitive
impairment. They also concluded Hronis’s religious fervor was
not associated with any mental disorder that impaired his
ability to understand the nature of the proceedings against him
or to assist counsel in the conduct of his defense. (See State v.
Hessler (Neb. 2011) 807 N.W.2d 504, 519 [“we will not assume
that hearing messages from God and following God’s perceived
commands, without more, demonstrate incompetence”].) After
reviewing these reports, the court found defendant competent to
stand trial and reinstated the criminal proceedings against him.
Against this backdrop, we conclude these proceedings did not
deprive Hronis of his right to a fair trial.
iii. Applicability of section 1369
Hronis also claims the trial court erred when it failed to
appoint a regional center director to evaluate Hronis’s
competence in 1995 or 2000 because there were sufficient
indications at the time that Hronis had a developmental
disability. We conclude this claim lacks merit.
41
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
At the time of Hronis’s competency proceedings,
section 1369 provided that if the court declares a doubt as to the
defendant’s competency and “it is suspected the defendant is
developmentally disabled, the court shall appoint the director of
the regional center for the developmentally disabled . . . or the
designee of the director, to examine the defendant. The court
may order the developmentally disabled defendant to be
confined for examination in a residential facility or state
hospital.” (Former § 1369, subd. (a).) Welfare and Institutions
Code former section 4512 defined a developmental disability as
“a disability which originates before an individual attains age
18, continues, or can be expected to continue, indefinitely, and
constitutes a substantial disability for that individual . . . .
[T]his term shall include mental retardation, cerebral palsy,
epilepsy, and autism. This term shall also include disabling
conditions found to be closely related to mental retardation or to
require treatment similar to that required for individuals with
mental retardation.” (Welf. & Inst. Code, former § 4512,
subd. (a).)
As previously described, at the initial competency
proceeding, Hronis agreed to submit the competency
determination on the expert reports. Johnston specifically
tested Hronis for the possibility of a developmental disability
and determined that he did not suffer from one. Although
Kobashigawa did not appear to test explicitly for a
developmental disability, he estimated Hronis’s intelligence to
be average. Defense counsel did not submit a declaration or
report from an expert to refute Johnston and Kobashigawa. The
trial court was entitled to rely on Johnston’s and Kobashigawa’s
reports. (See People v. Leonard (2007) 40 Cal.4th 1370, 1390
(Leonard); People v. Townsel (2016) 63 Cal.4th 25, 39 (Townsel).)
42
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
Notwithstanding Johnston’s determination that Hronis
did not have a developmental disability and Kobashigawa’s
conclusion that Hronis was of average intelligence, Hronis
contends several pieces of evidence should have independently
prompted the trial court to appoint the director of the regional
center pursuant to section 1369, either in 1995 or 2000. He cites
counsel’s declaration attesting that “on at least one occasion,
Mr. Hronis tested at an intelligence quotient level of 69.”
Defense counsel’s reference to Hronis’s IQ score does not
necessarily give rise to a court’s duty to refer a defendant to a
regional director under section 1369. (See People v. Taylor
(2009) 47 Cal.4th 850, 864 (Taylor) [reference to defendant’s IQ
score of 75, without specific connection to developmental
disability, was not sufficient to trigger trial court’s duty to refer
defendant to regional director under § 1369].) Indeed, Hronis
has done little to explain his IQ score beyond his counsel’s bare
reference, and a subsequent reference to an IQ score of 72 while
Hronis was in high school.
Hronis relies on People v. Lara (2025) 112 Cal.App.5th
1090 (Lara), but it is distinguishable. In Lara, the Court of
Appeal concluded the trial court erred in failing to appoint a
regional director under section 1369, based on a psychologist’s
report that substantiated the defendant’s “ ‘extremely low’ IQ of
65, documented [the defendant’s] confusion during police
interviews and the competency evaluation, and showed scores
below the competence cutoff” on three separate parts of a test
specifically designed to assess competency to stand trial for
intellectually disabled individuals. (Lara, at p. 1102.) The
appellate court distinguished Taylor, supra, 47 Cal.4th 850 on
its facts, emphasizing the difference between the defendant’s IQ
in Taylor (75) and the IQ of the subject defendant (65) as well as
43
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
other indicia of developmental disability that were not present
in Taylor. (Lara, at p. 1103.)
Here, like Taylor, Hronis’s IQ score was not accompanied
by sufficient confirmatory evidence of his claimed
developmental disability like the defendant offered in Lara.
(See Lara, supra, 112 Cal.App.5th at p. 1103 [highlighting
evidence not present in Taylor, including scoring below
competency on a competency test and exhibiting confusion
during police interviews].) Hronis points to his counsel’s
statement that he had attended special education classes, but
this reference is too general to support a suspicion that Hronis
was developmentally disabled. Hronis also points to his
counsel’s statement that he was discharged from the military
based on cognitive limitations. Again, however, this fact does
not necessarily give rise to a suspicion that Hronis was
developmentally disabled.
Further, Nakagawa expressly considered Hronis’s
discharge from military service based on cognitive limitations,
but nevertheless concluded his intellectual functioning was in
the “low average range” and he did not suffer from any
significant cognitive or developmental problems or delays.
Finally, while defense expert Podboy submitted a report
whereby he concluded that Hronis “is quite obviously an
individual suffering from either mild mental retardation or
borderline mental retardation,” he did not indicate what tests,
if any, he administered to reach this conclusion, and the trial
court specifically found Podboy’s report unreliable.
Trial courts should, of course, take great care when
presented with evidence of IQ scores in the range for borderline
intellectual ability. On this record, however, we conclude the
44
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
trial court did not violate section 1369 when it failed to appoint
a regional director to examine Hronis. Moreover, even if we
were to conclude the trial court erred under section 1369, we
would find such error harmless because the experts who
examined Hronis specifically considered the possibility of a
developmental disability, and the evidence strongly supported
the trial court’s finding that Hronis was not incompetent to
stand trial on that basis. (See Leonard, supra, 40 Cal.4th at
p. 1390 [holding that the trial court’s failure to appoint the
regional director under § 1369 was harmless because the court’s
“competency determination was based on evidence from experts
who were familiar with defendant’s developmental disability
and who considered it in evaluating his competence”].)
iv. Trial court’s denial of request for renewed
competency proceedings in 2000
Hronis also maintains that the trial court abused its
discretion when it declined to reinstitute competency
proceedings following defense counsel’s submission of
Motion 820 in August 2000. We conclude the trial court acted
within its discretion in not reinstituting these proceedings.
“ ‘ “Once a defendant has been found competent to stand
trial, a second competency hearing is required only if the
evidence discloses a substantial change of circumstances or new
evidence is presented casting serious doubt on the validity of the
prior finding of the defendant’s competence.” ’ ” (Buenrostro,
supra, 6 Cal.5th at p. 409; People v. Rodas (2018) 6 Cal.5th 219,
231, 234 (Rodas); Leonard, supra, 40 Cal.4th at p. 1415; People
v. Jones (1991) 53 Cal.3d 1115, 1152–1153.) “[T]he duty to
suspend [proceedings] is not triggered by information that
substantially duplicates evidence already considered at an
earlier, formal inquiry into the defendant’s competence; when
45
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
faced with evidence of relatively minor changes in the
defendant’s mental state, the court may rely on a prior
competency finding rather than convening a new hearing to
cover largely the same ground.” (Rodas, at pp. 234–235.) The
court may also “appropriately take its personal observations
into account in determining whether there has been some
significant change in the defendant’s mental state. This is
particularly true when . . . the defendant has actively
participated in the trial.” (People v. Jones, at p. 1153.)
“Whether there has been a change in circumstances
sufficient to call for a new competency hearing is necessarily a
fact-specific inquiry.” (Rodas, supra, 6 Cal.5th at p. 235.) We
review for substantial evidence the trial court’s finding of no
substantial change of circumstances and no new evidence
casting serious doubt on the initial competency determination,
and we review its decision not to reinstate competency
proceedings for an abuse of discretion. (People v. Huggins (2006)
38 Cal.4th 175, 220 (Huggins) [“We apply a deferential standard
of review to a trial court’s ruling concerning whether another
competency hearing must be held”]; People v. Marshall (1997)
15 Cal.4th 1, 33 (Marshall) [same].)
Hronis first contends the initial competency finding
should be given little weight because it was based on the
submission of written reports rather than a full evidentiary
proceeding. He cites no authority for the proposition that a
reviewing court should disregard a trial court’s initial
determination of competency to stand trial if based on
psychiatric reports, rather than a full, trial-type, adversary
hearing. As discussed, the procedure used by the trial court here
was sufficient to support its determination that Hronis was
competent to stand trial. (See McPeters, supra, 2 Cal.4th at
46
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
pp. 1168–1169.) Consistent with that conclusion, we reject
Hronis’s claim that the earlier ruling should be accorded little
weight in our review of the court’s subsequent competency
ruling.
On the merits, we conclude substantial evidence supports
the trial court’s determination that there was no substantial
change of circumstances or new evidence casting a serious doubt
on the court’s prior finding of Hronis’s competence. As discussed
above, the initial competency determination considered Hronis’s
rigid religious belief that God would deliver him from the
criminal proceedings. Johnston and Kobashigawa discussed
and analyzed at length Hronis’s religiosity. They connected it
to Hronis’s narcissism and grandiosity rather than any mental
illness or delusion that would impact his ability to understand
the proceedings or assist counsel. In declining defense counsel’s
renewed request to declare a doubt, the trial court observed that
the ground for their request was Hronis’s rigid religiosity, which
was not a new or changed circumstance. Indeed, it was central
to the prior proceeding. The court also found that, despite
Hronis’s deeply held religious beliefs, Hronis “understands
what’s going on,” “[e]ven in the context of the Pro Per voir dire
that [the court] did subsequent to the verdict.” Thus, the court
reasonably found it was not presented with a substantial change
of circumstances or new evidence casting a serious doubt on the
validity of the original competency finding. (Huggins, supra,
38 Cal.4th at p. 220 [reaffirming that the initial determination
of competency “must be viewed as a baseline that, absent a
preliminary showing of substantially changed circumstances,
eliminate[s] the need to start the process anew”].)
Hronis relies on Podboy’s report, but it describes the same
or similar behaviors and attitudes that the trial court previously
47
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
found insufficient in the original competency proceedings. For
example, Podboy described Hronis’s steadfast belief that he
would be released from prison based on his revelation from God
and his interpretations of biblical stories. The impact of
Hronis’s religious beliefs on his understanding of the
proceedings and his ability to rationally assist counsel was
thoroughly considered in the previous competency proceedings,
and the trial court could reasonably find that Podboy’s report
contained no substantial evidence of new or changed
circumstances casting serious doubt on the prior competency
determination. (Taylor, supra, 47 Cal.4th at p. 864; Lawley,
supra, 27 Cal.4th at pp. 136–137.)
To the extent Podboy’s report did offer new observations
or conclusions, the trial court reasonably found them
insignificant. Indeed, the trial court specifically concluded
several aspects of the report to be “extraordinarily weak,”
indicative of “bias or pre-orientation,” and “strongly, firmly,
diametrically opposed” to the court’s personal observations of
Hronis throughout trial. For example, although Podboy’s report
described Hronis as decompensating and appearing increasingly
agitated shortly after he was convicted of the offenses, the trial
court noted that “[t]hat type of verdict, of course, has got to have
a substantial impact upon any person.” The trial court’s
observation is well supported. (See People v. Davis (1995)
10 Cal.4th 463, 526–527 [trial court reasonably viewed
defendant’s anger and emotion over the guilty verdicts as
“ ‘normal’ under the circumstances,” rather than evidence of
incompetency]; see also Buenrostro, supra, 6 Cal.5th at p. 410
[concluding that defendant’s bizarre behavior which, in defense
counsel’s view, reflected a “deepening” of defendant’s inability to
understand the legal proceedings and cooperate with counsel,
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
“may . . . have simply been a display of her unwillingness to
cooperate with counsel”]; People v. Laudermilk (1967) 67 Cal.2d
272, 285, citations omitted [holding that “more is required to
raise a doubt than mere bizarre actions . . . or bizarre
statements . . . or statements of defense counsel that defendant
is incapable of cooperating in his defense . . . or psychiatric
testimony that defendant is immature, dangerous,
psychopathic, or homicidal or such diagnosis with little
reference to defendant’s ability to assist in his own defense”],
accord, People v. Bloom (2022) 12 Cal.5th 1008, 1032.) Indeed,
contrary to Podboy’s impressions, Hronis appeared “soft spoken,
deliberate, and composed” when he explained to the court his
reasons for not wanting to put on a penalty phase defense, which
were grounded not in his religious revelation that he would be
delivered, but rather on a desire to save the state money and
send the jury home.
Based on the court’s doubts about Podboy’s credibility and
reliability, the substantial findings of three court-appointed
experts, and the court’s own personal observations, Podboy’s
report does not constitute a substantial change of circumstances
or new evidence casting a serious doubt on the validity of the
court’s prior finding of Hronis’s competence. (People v. Lewis
and Oliver (2006) 39 Cal.4th 970, 1048 (Lewis and Oliver)
[expert testimony that one of the defendants was not competent
did not constitute substantial evidence because the expert’s
testimony was rejected by the trial court for “plausible reasons,”
including lack of credibility]; Marshall, supra, 15 Cal.4th at
p. 33 [finding no abuse of discretion when trial court determined
the statements failed to establish a substantial change of
circumstances because “[w]e cannot say as a matter of law that
here defendant’s statements in question were a ‘substantial
49
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
change of circumstances’ requiring the trial court to hold a
second competency hearing”].)
Fundamentally, defense counsel’s requests for a renewed
competency proceeding were grounded in Hronis’s refusal to
assist in the preparation of a potential penalty phase defense
based on his religious revelation. But this refusal to assist “did
not necessarily bear on his competence to do so, or reflect a
substantial change of circumstances or new evidence casting
serious doubt on the validity of the prior finding of the
defendant’s competence.” (People v. Medina (1995) 11 Cal.4th
694, 735.) We have on numerous occasions distinguished
between a defendant’s unwillingness to assist his counsel and a
defendant’s inability to assist his counsel; only the latter
implicates the competency of a defendant to stand trial. (Lewis,
supra, 43 Cal.4th at p. 526 [no competency hearing required
where “there was no substantial evidence that defendant’s lack
of cooperation stemmed from inability rather than
unwillingness”]; People v. Davis, supra, 10 Cal.4th at pp. 527–
528; Laudermilk, supra, 67 Cal.2d at p. 287.)
We have held that the trial court has a nondiscretionary
obligation to suspend proceedings and hold a competency trial if
“at least one expert who is competent to render such an opinion,
and who has had a sufficient opportunity to conduct an
examination, testifies under oath with particularity that,
because of mental illness, the accused is incapable of
understanding the proceedings or assisting in his defense.”
(Lewis and Oliver, supra, 39 Cal.4th at p. 1047; Sattiewhite,
supra, 59 Cal.4th at p. 465.) But we have not applied that rule
to renewed competency determinations, and for good reason. A
trial court’s decision whether to reinstitute a competency
proceeding, after having previously found the defendant
50
PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
competent, is fundamentally different from the initial decision
to institute competency proceedings. Mere doubt about a
defendant’s competency is insufficient, since the court has
already gone beyond the identification of doubt and determined
that defendant is not incompetent. Once a trial court has
determined a defendant is competent to stand trial, it would
make little sense to require the court to declare a doubt and
suspend proceedings whenever an expert opines that the
defendant is incompetent, irrespective of whether there is no
evidence of changed circumstances or new evidence.
In any event, even considering this rule, it appears
Podboy’s report is insufficient. First, Podboy’s report was
addressed to defense counsel, rather than the court, and not
made under oath. Second, it is not clear whether Podboy
conducted an examination of Hronis for the purpose of
determining whether he was competent to stand trial. As noted,
defense counsel had retained Podboy to assist in developing
evidence relating to the potential penalty phase, including
whether Hronis acted under duress or did not have the mental
capacity to appreciate the criminality of his conduct. (See
Sattiewhite, supra, 59 Cal.4th at p. 467 [discounting penalty
phase evidence addressing defendant’s alleged intellectual
disability as not pertaining to the question of competence to
stand trial].) Counsel described Podboy’s interactions with
Hronis as “a nontraditional manner, not as a clinician.” After
visiting with Hronis on several occasions, Podboy relayed to
defense counsel that he did not have available data that he felt
would be necessary to reach the level of reasonable medical or
psychological meetings or interviews necessary to form an
opinion. Podboy confirmed this point when he informed the
court that the basis for his opinion was his review of Hronis’s
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
statements during the Marsden hearings and his conversations
with counsel, not from a clinical interview with Hronis. (Weaver,
supra, 26 Cal.4th at p. 953 [psychiatrist’s testimony indicating
his belief defendant was incompetent came from his
observations of defendant’s in-court demeanor rather than
actual examination of testing of defendant and thus fell “far
short” of being substantial].) Although Podboy and defense
counsel visited Hronis during jury deliberations and just after
Hronis was convicted, there is no evidence that Podboy
conducted a clinical evaluation of Hronis at that time. (See
People v. Wycoff (2021) 12 Cal.5th 58, 86 [recognizing that “not
every psychiatrist’s opinion is substantial evidence,” but finding
credible psychologist’s opinion that was “supported by three
interviews with defendant, a thorough psychiatric history,
appropriate psychological testing, and detailed reasoning in
which he made clear the factual basis for his conclusions”].)
Indeed, Podboy noted in his report that Hronis was “completely
unwilling to engage in psychological testing of any sort.”
Accordingly, Podboy’s report was insufficient to require the
court to reinstitute competency proceedings.
Because substantial evidence supports the trial court’s
finding that there was no substantial change of circumstances
or new evidence casting serious doubt on the validity of its prior
finding that Hronis was competent to stand trial, we conclude
the trial court acted within its discretion in declining to order a
renewed competency hearing. (People v. Welch (1999)
20 Cal.4th 701, 742.)
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
2. Denial of severance motions and use of dual jury
procedure
Bertsch and Hronis contend the trial court erred when it
empaneled two separate juries for a joint trial rather than fully
severing their cases. We find no error.
a. Background
Bertsch and Hronis were jointly charged with the
kidnapping, rape, sodomy, robbery, and murder of Canady.
Before trial, Bertsch and Hronis moved to sever the trial. The
prosecution opposed severance, suggesting instead the use of
two juries in a single trial.
Specifically, counsel for Bertsch and Hronis maintained
the courtroom was too crowded to accommodate two juries and
space constraints could result in tension, inattentiveness, and
hostility among jurors. They also contended that conflicting
defense strategy, tactics, and evidence counseled against a joint
trial. The prosecution maintained that this was a classic case
for a joint trial because it involved common events and a
common victim. The prosecution explained: “It’s the People’s
theory and the evidence shows that there are two men that
kidnapped her. There [are] two semen donors. There are two
people using the credit cards. There are two people in Arizona
where her car is dumped and there are two people charged. [¶]
And these two people are not pointing the fingers at each other
that one is more culpable. That will not be their defenses in this
case.” The prosecution also noted that separate trials would
inconvenience more than one hundred anticipated witnesses, at
least fifty of whom did not live in the area.
The trial court denied the severance motions and ordered
a joint trial with separate juries. Although it acknowledged the
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
logistical difficulty of managing large groups in the courtroom,
the trial court stated, “[T]his is almost a classic dual-jury
situation in the sense that the substantial bulk of the evidence
in the guilt phase . . . applies to both defendants, particularly
the DNA evidence,” which the court estimated could take
months of testimony “given the number of tests that were run
and some of the difficulties or alleged difficulties with some of
those tests.” The court also found the large number of witnesses,
including out-of-town witnesses, and difficulty scheduling
expert witnesses weighed in favor of a joint trial with dual
juries. The court indicated that it was considering modifying
the courtroom or moving proceedings to a larger courtroom to
accommodate the number of jurors.
Before the commencement of trial, and after the parties
engaged in further discussions regarding courtroom suitability,
the court moved the proceedings to a larger courtroom. Bertsch
and Hronis lodged various objections to the courtroom layout
based on crowding and seating arrangement issues, which the
court overruled.
During trial, defense counsel complained again about the
courtroom layout based on crowding at the counsel table. They
also moved for a mistrial based on their assertion that Bertsch’s
jurors could observe disapproving facial expressions apparently
made by two Hronis jurors. The court admonished the jurors to
disregard facial expressions and denied the motion for a mistrial
and requests to voir dire or excuse the jurors.
As the trial continued, Bertsch indicated he intended to
testify. Hronis’s counsel expressed concern that Bertsch would
attempt to blame Hronis for Canady’s murder, and on that basis
moved to exclude Hronis’s jury when Bertsch testified. The trial
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
court denied the request, explaining that “finger-pointing
between defendants” “does not in and of itself necessitate a
severance.”
Bertsch subsequently testified in his defense. On cross-
examination, the prosecutor asked Bertsch whether it was true
that he was not present and had no participation in the
kidnapping, robbery, sexual assault, and murder of Canady.
Bertsch answered, “that’s true,” then blurted out — over the
prosecutor’s objection and court’s attempted intervention —
that “Jeff Hronis confided in me” “that him and Jerry [B.] killed
Linda Canady.” The court admonished the jurors to disregard
Bertsch’s statement. It denied Hronis’s request for a mistrial
based on Bertsch’s outburst.
At the conclusion of Bertsch’s penalty phase trial, the trial
court confirmed its prior ruling that the larger courtroom had
adequately accommodated the joint trial with two juries. It
made a similar finding during Hronis’s penalty phase trial.
b. Analysis
Section 1098 provides that two defendants jointly charged
with any public offense must be tried together unless the trial
court orders separate trials. “Joint trials are favored because
they ‘promote [economy and efficiency’] and ‘ “serve the interests
of justice by avoiding the scandal and inequity of inconsistent
verdicts.” ’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 40 (Coffman and Marlow).) “[I]mportant concerns of public
policy are served if a single jury is given a full and fair overview
of the defendants’ joint conduct and the assertions they make to
defend against ensuing charges.” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 379 (Bryant, Smith and
Wheeler).)
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
“The court has discretion to order separate trials if there
is an incriminating confession, prejudicial association, likely
confusion due to evidence on multiple counts, conflicting
defenses, or the possibility that a codefendant might provide
exonerating testimony at a separate trial.” (People v. Sánchez
(2016) 63 Cal.4th 411, 464; accord, People v. Letner and Tobin
(2010) 50 Cal.4th 99, 150 (Letner and Tobin).) Severance may
also be called for when “ ‘there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt
or innocence.’ ” (Coffman and Marlow, supra, 34 Cal.4th at
p. 40.)
“The use of dual juries is a permissible means to avoid the
necessity for complete severance.” (People v. Cummings (1993)
4 Cal.4th 1233, 1287 (Cummings).) “The procedure facilitates
the Legislature’s statutorily established preference for joint trial
of defendants and offers an alternative to severance when
evidence to be offered is not admissible against all defendants.”
(Cummings, at p. 1287; see Lambright v. Stewart (9th Cir. 1999)
191 F.3d 1181, 1186 (Lambright) [“the use of dual juries can
capture both the advantages of a joint trial and the protections
of separate trials”].) In People v. Harris (1989) 47 Cal.3d 1047
(Harris), “We rejected various constitutional and statutory
arguments against the dual jury system and concluded that it is
‘a permissible practice’ and ‘is not a basis for reversal on appeal
in the absence of identifiable prejudice resulting from the
manner in which it is implemented.’ ” (People v. Jackson (1996)
13 Cal.4th 1164, 1208 (Jackson), citing Harris, at p. 1075.) We
have upheld the constitutionality of the dual jury procedure in
subsequent decisions. (See, e.g., People v. Thompson (2016)
1 Cal.5th 1043, 1085 (Thompson); Cummings, at p. 1287.)
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Opinion of the Court by Guerrero, C. J.
“Whether the court abused its discretion by denying
complete severance and impaneling separate juries is decided on
the basis of the facts known at the time of the ruling on the
severance motion.” (Cummings, supra, 4 Cal.4th at p. 1287; see
Thompson, supra, 1 Cal.5th at p. 1079.) “If the court properly
denied severance at the time, the reviewing court may reverse a
judgment only if it finds that the joint trial caused gross
unfairness that denied due process.” (People v. Sánchez, supra,
63 Cal.4th at p. 464; Bryant, Smith and Wheeler, supra,
60 Cal.4th at p. 379.) We have frequently found no abuse of
discretion and no prejudice in denying severance in a “classic
case” for a joint trial, that is, when the defendants are charged
together with the same crimes arising from the same events.
(Coffman and Marlow, supra, 34 Cal.4th at p. 40; Letner and
Tobin, supra, 50 Cal.4th at p. 150; Bryant, Smith and Wheeler,
at p. 379; Cummings, supra, 4 Cal.4th at pp. 1287–1288.)
Initially, because the crimes charged here involved
common events and a common victim, the trial court was
presented with a “ ‘ “classic case” ’ ” for a joint trial. (Coffman
and Marlow, supra, 34 Cal.4th at p. 40.) Bertsch and Hronis
were jointly charged with the kidnapping, robbery, rape,
sodomy, and first degree murder of Canady, and they faced
kidnapping-murder, robbery-murder, sodomy-murder, and
rape-murder special-circumstance allegations. “Virtually no
reason existed for severance.” (People v. Sánchez, supra,
63 Cal.4th at p. 464.) There was no incriminating confession or
suggestion that a codefendant might provide exonerating
testimony at a separate trial. Nor was there a risk of prejudicial
association or likely confusion due to evidence that might be
offered on counts alleged against only one defendant, given that
Bertsch and Hronis committed the offenses together and were
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Opinion of the Court by Guerrero, C. J.
both charged with all counts. To the extent there was a
possibility of conflicting defenses at the time the trial court
denied Bertsch’s and Hronis’s severance motions — and
assuming without deciding whether antagonistic defenses can
ever require severance in the context of separately empaneled
juries (see People v. Flinner (2020) 10 Cal.5th 686, 714
(Flinner)) — we have made clear that “the possible or even
actual presentation of antagonistic defenses by codefendants
does not . . . require severance” unless “the conflict between the
defendants alone will demonstrate to the jury that they are
guilty.” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at
p. 380.) In this case, there was strong independent evidence,
including DNA evidence, connecting Bertsch and Hronis to the
charges. (Ibid.) Accordingly, the court did not abuse its
discretion when it denied the motions for severance.
Bertsch and Hronis raise a multitude of claims
challenging the use of dual juries, both in general and as
implemented in their case. We find none of their contentions
persuasive.
Bertsch and Hronis contend the dual jury procedure
prejudiced them by inviting jury speculation. We have rejected
as “sheer speculation” the claim that the use of dual juries
“invites each jury to speculate that, during the time it is
excluded, evidence damaging to the defendant whose case that
jury is trying is being presented to the second jury.” (Harris,
supra, 47 Cal.3d at p. 1071; id. at p. 1072; People v. Powell
(2018) 6 Cal.5th 136, 146; accord, Lambright, supra, 191 F.3d at
p. 1186, fn. 5 [“The argument that each defendant’s jury will
‘necessarily speculate’ about the evidence being heard by the
other defendant’s jury is itself rank speculation”].) In Harris,
we found no evidence that the defendant’s jury speculated in its
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
absence that the codefendant’s jury was hearing different
testimony that was highly incriminatory as to the defendant, or
that the defendant’s jury “was even aware that evidence was
being presented to the [codefendant’s] jury or that the court was
in session on some of the occasions when it was excluded.”
(Harris, at p. 1072.) In this case, although both juries were
aware of instances where evidence was heard in their absence,
this awareness itself does not suggest improper juror
speculation took place or that it informed their views of
Bertsch’s or Hronis’s guilt. Moreover, the trial court
admonished prospective jurors to decide the case “solely as it
pertain[ed] to [their particular defendant] based on the evidence
received.” We presume the jurors understood and followed the
court’s instructions absent evidence to the contrary. (People v.
Romero and Self (2015) 62 Cal.4th 1, 28 (Romero and Self).)
Bertsch and Hronis also claim courtroom conditions
distracted and inconvenienced their counsel. Specifically,
Bertsch claims one of his attorneys was forced to sit in a
cramped area while another was required to stand whenever the
projector was used, and the courtroom arrangement made it
difficult for counsel to observe the jurors and witnesses at the
same time. Hronis asserts the “persistent” and “uncomfortable”
crowding must have had a detrimental impact on the general
disposition of the lawyers and jurors. These inconveniences
“fall[] well short of establishing identifiable prejudice or gross
unfairness.” (People v. Powell (2018) 6 Cal.5th 136, 146
(Powell).) This conclusion finds support in the trial court’s
factual findings made at the conclusion of trial proceedings
regarding the adequacy of the courtroom arrangement,
including that defense counsel had been able to maintain visual
contact with the witnesses and the jury by turning or
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
repositioning their chairs and the courtroom arrangements had
been more than sufficiently workable and did not infringe on
Bertsch’s or Hronis’s right to a fair trial.
Bertsch and Hronis similarly maintain that dual jury
procedure caused delay and inconvenience, which frustrated
jurors and gave them reason to “retaliate against” Bertsch and
Hronis. Our Harris decision also rejected as “sheer speculation”
the argument that empaneling two juries in a joint trial “creates
a danger that jurors frustrated by the delay and inconveniences
caused by the procedure will blame the defendant for their
discomfiture.” (Harris, supra, 47 Cal.3d at pp. 1071–1072.)
Here, as in Harris, Bertsch and Hronis make “no effort to
substantiate [their] theory that such breaks, whether in a dual
jury trial or otherwise, affect the jury’s attitude toward the
defendant.” (Id. at p. 1072.) To the contrary, the trial court
noted “the juries . . . seem to be in a surprisingly good mood,”
even “given the total amount of bouncing around we have done
on this case.”
Bertsch and Hronis further argue the dual jury procedure
prejudiced them because they were forced to defend against each
other’s counsel in addition to the prosecutor. We have
previously rejected similar claims of prejudice based on
codefendant’s counsel acting as a purported “second prosecutor,”
explaining that just “because the prosecution’s case will be
stronger if defendants are tried together, or that one defense
undermines another, does not render a joint trial unfair.”
(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 379;
Flinner, supra, 10 Cal.5th at p. 715 [same]; Letner and Tobin,
supra, 50 Cal.4th at p. 153 [same]; People v. Winbush (2017)
2 Cal.5th 402, 457 (Winbush) [“The mere fact that damaging
testimony is presented by codefendant’s counsel instead of the
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
prosecutor does not deprive a defendant of constitutional or
statutory rights”]; Jackson, supra, 13 Cal.4th at p. 1208 [same].)
This case is no different.
Separately, Hronis raises several policy arguments
against the dual jury procedure. As even Hronis acknowledges,
however, “[s]uch arguments are more properly addressed to the
Legislature.” (Burnett v. Superior Court (1974) 12 Cal.3d 865,
874.) Consistent with our prior case law, we decline to consider
such policy arguments on their merits or reconsider our prior
decisions reaffirming the use of separate juries for jointly tried
defendants. (Thompson, supra, 1 Cal.5th at p. 1085 [case law
upholding the use of dual juries for jointly tried defendants in
lieu of outright severance “is settled”]; see also Turrieta v. Lyft,
Inc. (2024) 16 Cal.5th 664, 711 [policy arguments “should be
evaluated and addressed by the Legislature in its policymaking
role, not by this court”].)
Hronis also contends the trial court abused its discretion
when it kept his jury in the courtroom while Bertsch testified,
despite allegedly expecting such testimony “to be false and filled
with outbursts that would violate court orders.” Specifically, he
maintains that by allowing his jury to be present when Bertsch
blurted out over the prosecutor’s objection that “Jeff Hronis
confided in me” “that him and Jerry [B.] killed Linda Canady,”
the trial court rendered the trial fundamentally unfair and
deprived him of his due process rights.
We find no error. Hronis has not shown that the trial court
expected Bertsch’s testimony to be false and filled with improper
outbursts. Moreover, immediately after Bertsch’s outburst, the
trial court admonished the jurors to disregard the statement.
“We presume the jury understood and followed this instruction.”
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Opinion of the Court by Guerrero, C. J.
(Romero and Self, supra, 62 Cal.4th at p. 28.) Indeed, as the
trial court later found in denying Hronis’s motion for mistrial
based on Bertsch’s outburst, Bertsch’s credibility was “severely
impugned,” which likely assisted the jury’s ability to follow the
court’s admonition to disregard the statement. Moreover,
outburst aside, portions of Bertsch’s testimony were clearly
relevant to Hronis’s guilt given the intertwined nature of their
involvement in Canady’s murder. Accordingly, the trial court
properly denied Hronis’s request to exclude his jury while
Bertsch testified.
Hronis further maintains the dual jury procedure
prejudiced him by forcing his counsel to “chop up” cross-
examination of prosecution witnesses Jerry B. and Martha R. to
minimize the number of times the Bertsch jury was excused
from hearing portions of their testimony. Hronis does not
explain how these types of minor disruptions to his counsel’s
desired order and flow of the cross-examination establishes
identifiable prejudice or gross unfairness. Moreover, we find the
record devoid of any support for this argument as well. (Powell,
supra, 6 Cal.5th at p. 146; Harris, supra, 47 Cal.3d at pp. 1071–
1072.)
Hronis additionally claims the dual jury procedure
prejudiced him when the trial court denied his request to
exclude his jury from the testimony of David Moore, Bertsch’s
expert document examiner. Moore was expected to testify that,
based on his comparison of known writings by Bertsch and the
signatures of receipts for items purchased with Canady’s credit
card, Bertsch probably did not sign any of the credit card
receipts and that one person probably signed most or perhaps
all the receipts. We conclude the trial court acted within its
discretion when it denied the motion to exclude the Hronis jury
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Opinion of the Court by Guerrero, C. J.
and allowed the prosecution to elicit the fact that Moore never
compared the credit card receipts with Hronis’s known writings.
The trial court properly reasoned this was a joint trial and the
handwriting evidence was relevant to Hronis as well as Bertsch.
No gross unfairness resulted from its admission. (Winbush,
supra, 2 Cal.5th at p. 457; Jackson, supra, 13 Cal.4th at
p. 1208.)
In his final claim of error regarding dual juries, Hronis
asserts their use violated his right to a speedy trial.11 He
contends that Bertsch caused most of the trial delays, which
gave the prosecution more time to utilize new advancements in
DNA technology. Even assuming the use of such advancements
could constitute prejudice in this context, the record does not
support Hronis’s claim. To the contrary, pretrial litigation
regarding the issue of DNA partition caused most of the delay.
To the extent some small delay in bringing Hronis to trial could
be attributed to Bertsch, we find the substantial state interests
served by a joint trial outweighed Hronis’s interests under the
circumstances. (Smith v. Superior Court (2012) 54 Cal.4th 592,
604 (Smith); People v. Sutton (2010) 48 Cal.4th 533, 558
(Sutton); accord, § 1050.1 [“In any case in which two or more
defendants are jointly charged in the same complaint . . . and
the court . . . , for good cause shown, continues the . . . trial of
one or more defendants, the continuance shall . . . constitute
good cause to continue the remaining defendants’ cases so as to
maintain joinder”].)
11
We address Hronis’s standalone claim that he was
deprived of his statutory right to a speedy trial in more detail in
part II.A.3., below.
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
Bertsch separately insists the dual jury procedure
prejudiced him because it allowed his jury to infer that he was
a security threat and more violent than Hronis because Bertsch
was shackled while Hronis was not, and a bailiff was seated
close to Bertsch.12 These claims are speculative. There is no
evidence to suggest the jury’s possible observation that only
Bertsch was restrained influenced its finding of guilt. Nor is
there any reasonable probability Bertsch would have received a
more favorable verdict had the courtroom seating arrangements
been different.
Bertsch additionally contends the use of separate juries
was prejudicial because it allowed his jury to see expressions of
disapproval from two members of Hronis’s jury while Bertsch’s
counsel cross-examined a prosecution DNA expert witness.
Again, we find Bertsch’s assertion speculative. In any event, the
trial court’s contemporaneous admonition to Bertsch’s jury not
to consider such expressions, and its prior instruction to decide
the case solely based on evidence admitted against Bertsch,
provided sufficient safeguards. (See, e.g., People v. Pride (1992)
3 Cal.4th 195, 241 [“We assume the jury followed the court’s
instruction”].) Bertsch’s claim to the contrary is unsupported.
Finally, Bertsch maintains the dual jury procedure
prejudiced him because it allowed his jury to compare his and
Hronis’s behavior at trial. Bertsch points out that he was absent
from part of the guilt phase of trial while Hronis was present
throughout. However, the trial court instructed Bertsch’s jury
that Bertsch had chosen not to attend part of the trial and that
the jury could not consider his absence on any issue it would be
12
Bertsch did not object to the use of restraints at trial, and
he does not otherwise challenge their use on appeal.
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
asked to decide. Bertsch also points out that he failed to follow
court instructions during his testimony while Hronis sat quietly
throughout the trial. Any inference by the jury based on this
conduct likely stemmed from the conduct itself, rather than a
comparison with Hronis. In other words, to the extent there
could have been any prejudice impacting Bertsch, it was based
on Bertsch’s actions and not the dual jury system itself. In any
event, as we have observed, the court likewise admonished the
jury not to consider Bertsch’s outburst while testifying. We
assume the jury followed the court’s instructions. (People v. Bell
(2019) 7 Cal.5th 70, 116.)
In sum, we conclude that the trial court acted within its
discretion when it denied Bertsch’s and Hronis’s motions for
severance and conducted a joint trial with dual juries, and that
no gross unfairness resulted therefrom.
3. Hronis’s right to a speedy trial
Hronis maintains the nearly 16-month delay between his
agreed-upon trial date and the start of trial violated his
statutory right to a speedy trial. (§ 1382.) We conclude good
cause supported the delay; thus, no violation occurred.
a. Background
After the prosecution filed a felony complaint against
Bertsch and Hronis, both waived their right to a speedy trial and
sought and received numerous continuances. For example,
Hronis waived time to July 14, 1998, a date the parties agreed
to start motions in limine. During this time, the parties briefed
and litigated several discovery and evidentiary motions related
to DNA evidence.
On July 14, 1998, Bertsch and Hronis moved for a
continuance to review additional DNA evidence the prosecution
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Opinion of the Court by Guerrero, C. J.
had recently provided. The trial court denied the request
because the newly discovered DNA material, which the
prosecution intended to analyze using new STR DNA testing
technology, did not impact the defense’s ability to proceed with
planned hearings relating to the admissibility of other types of
DNA testing. The in limine motions proceeded.
Three months later, Hronis filed a motion to dismiss based
on the court’s failure to bring him to trial within the statutory
period. The trial court denied the motion. It cited the unique
and complicated nature of the case, and it found that the
ongoing in limine proceedings, based on motions brought by all
parties, constituted good cause to delay jury empaneling.
In limine proceedings continued for several months, with
all three parties filing motions and calling witnesses. During
this time, Hronis sought and obtained numerous lengthy
continuances after one of his attorneys withdrew due to a family
health emergency. Hronis also agreed to recess proceedings for
several weeks to accommodate a trial conflict for one of Bertsch’s
attorneys.
In September 1999, after the prosecution completed its
presentation on the in limine DNA issues, Hronis complained
that his speedy trial rights had been violated due to the
prosecution’s insistence on introducing DNA evidence at trial.
The prosecution responded that defense counsel’s objections to
the use of DNA evidence had caused the delay of trial, and that
it was prepared to select a jury if Hronis withdrew his objection
to the use of all DNA evidence. The trial court observed that it
was “entirely appropriate for the People to request that the DNA
be admitted and to have the Court make determinations
consistent with the law.” The court found good cause to continue
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PEOPLE v. BERTSCH and HRONIS
Opinion of the Court by Guerrero, C. J.
the trial, with a planned ruling on the DNA admissibility in
October 1999. It cited the extensive evidentiary record, the
nature of anticipated pleadings by all parties, and the court’s
need to review those pleadings.
On October 13, 1999, Hronis agreed to waive his speedy
trial rights to November 2 to accommodate his attorneys’ plan
to attend a DNA conference in late October. On November 3,
Hronis’s jury selection commenced.
b. Analysis
“Penal Code section 1382 — one of the principal provisions
implementing California’s statutory right to a speedy trial —
provides that when a defendant charged with a felony is not
brought to trial within 60 days of arraignment on an indictment
or information (and the defendant has not expressly or impliedly
consented to having trial set for a date beyond that period), the
criminal charges against the defendant shall be dismissed
unless there is ‘good cause’ for the delay.” (Sutton, supra,
48 Cal.4th at p. 537; see former § 1382, subd. (a)(2); Stats. 1998,
ch. 931, § 405.5.)
“Section 1382 does not define ‘good cause’ as that term is
used in the provision, but numerous California appellate
decisions that have reviewed good-cause determinations under
this statute demonstrate that, in general, a number of factors
are relevant to a determination of good cause: (1) the nature
and strength of the justification for the delay, (2) the duration of
the delay, and (3) the prejudice to either the defendant or the
prosecution that is likely to result from the delay. [Citations.]
Past decisions further establish that in making its good-cause
determination, a trial court must consider all of the relevant
circumstances of the particular case, ‘applying principles of
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Opinion of the Court by Guerrero, C. J.
common sense to the totality of circumstances.’ ” (Sutton, supra,
48 Cal.4th at p. 546.)
“Good cause within the meaning of section 1382 exists, for
example, when the delay beyond the statutory period is caused
by the conduct of the defendant or occurs for his or her benefit,
or there are unforeseen circumstances such as unexpected
illness, unanticipated unavailability of counsel, or the absence
of a witness despite due diligence to secure his or her
attendance.” (People v. Hajjaj (2010) 50 Cal.4th 1184, 1198;
People v. Lomax (2010) 49 Cal.4th 530, 554 [delay caused by
defendant constitutes good cause for delay of criminal trial].)
“[A] trial court ‘has broad discretion to determine whether
good cause exists to grant a continuance of the trial.’ ” (Sutton,
supra, 48 Cal.4th at p. 546.) We review a trial court’s good-
cause determination for abuse of discretion. (Ibid.)
The trial court acted within its discretion when it found
good cause supported the nearly 16-month delay of Hronis’s
trial. In limine proceedings concerning the admissibility of DNA
evidence caused much of the delay. This evidence was highly
probative of Hronis’s and Bertsch’s guilt, and as the trial court
discerned, it was “entirely appropriate” for the prosecution to
seek its admission. Hronis’s motions objecting to the
admissibility of DNA evidence, while certainly permissible,
contributed to the delay. Moreover, the delay of trial due to
DNA evidence-related litigation cannot be said to have
prejudiced Hronis, as the proceedings ensured such evidence
met a level of general acceptance in the scientific community.
(See People v. Kelly (1976) 17 Cal.3d 24, 31–32 (Kelly).) Hronis
was also responsible for delay caused by the several
continuances he sought or agreed to between January 5, 1999,
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Opinion of the Court by Guerrero, C. J.
and November 2, 1999. (See People v. Williams (2013)
58 Cal.4th 197, 240.) Finally, our analysis of Hronis’s claim does
not change even if we consider that Bertsch’s separate motions
may have caused brief delays in Hronis’s trial. We have
previously held that such delays generally do not undermine a
finding of good cause, especially considering the substantial
state interests that are served in proceeding with a joint trial.
(Smith, supra, 54 Cal.4th at p. 604; Sutton, supra, 48 Cal.4th at
p. 545; accord, § 1050.1.) In short, Hronis suffered no violation
of his speedy trial rights under section 1382.
4. Hronis’s jury selection claims
a. For-cause challenges not based on views of the
death penalty
Hronis contends the trial court abused its discretion when
it denied his challenge for cause to Juror No. 206630.
Additionally, he argues the trial court abused its discretion in
granting the prosecution’s for-cause challenges to Prospective
Jurors Kendra M. and Judith W. and denying his challenges for
cause as to Prospective Jurors Linda S. and Trieu C. We
conclude the trial court did not abuse its discretion in denying
Hronis’s for-cause challenge to Juror No. 206630. Further, as to
the four prospective jurors, we find that Hronis has not shown
he was prejudiced by the court’s grant or denial of those
challenges. The court’s rulings provide no basis for reversing
the judgment.
i. Legal principles
“Under both state and federal Constitutions, a criminal
defendant is guaranteed the right to be tried by an impartial
jury. (Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)
To prevail on a claim that the court erroneously denied a
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challenge for cause, ‘defendant must demonstrate that the
court’s rulings affected his right to a fair and impartial jury.’ ”
(People v. Ramirez (2022) 13 Cal.5th 997, 1048 (Ramirez).) “ ‘A
party may challenge a prospective juror for actual bias, defined
as a state of mind that would prevent that person from acting
impartially and without prejudice to the substantial rights of
any party.’ ” (Id. at p. 1049.)
The trial court has broad discretion to assess the
qualifications of jurors challenged for cause. (Uttecht v. Brown
(2007) 551 U.S. 1, 9.) “The trial court must determine whether
the prospective juror will be ‘unable to faithfully and impartially
apply the law in the case.’ [Citation.] A juror will often give
conflicting or confusing answers regarding his or her
impartiality or capacity to serve, and the trial court must weigh
the juror’s responses in deciding whether to remove the juror for
cause. The trial court’s resolution of these factual matters is
binding on the appellate court if supported by substantial
evidence.” (Weaver, supra, 26 Cal.4th at p. 910; see People v.
Clark (2011) 52 Cal.4th 856, 895 (Clark) [“The trial court is in
the best position to determine the potential juror’s true state of
mind because it has observed firsthand the prospective juror’s
demeanor and verbal responses”]; People v. Hillhouse (2002)
27 Cal.4th 469, 489 [“The trial court is present and able to
observe the juror itself” and “can judge the person’s sincerity
and actual state of mind far more reliably than an appellate
court reviewing only a cold transcript”].)
“ ‘ “As a general rule, a party may not complain on appeal
of an allegedly erroneous denial of a challenge for cause because
the party need not tolerate having the prospective juror serve on
the jury; a litigant retains the power to remove the juror by
exercising a peremptory challenge. Thus, to preserve this claim
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for appeal we require, first, that a litigant actually exercise a
peremptory challenge and remove the prospective juror in
question. Next, the litigant must exhaust all of the peremptory
challenges allotted by statute and hold none in reserve. Finally,
counsel . . . must express to the trial court dissatisfaction with
the jury as presently constituted.” ’ ” (People v. Westerfield
(2019) 6 Cal.5th 632, 665.)
ii. Analysis
aa. Juror No. 206630.
Juror No. 206630 indicated in her questionnaire that she
was an attorney and had been hired recently by the state
Department of General Services. She was married to another
attorney and had two young children. She had previously
represented the Department of Corrections in a case while
working at a law firm. She wrote that she knew several people
who worked at the district attorney’s office but did not socialize
with them. She wrote that she had no prior knowledge of the
case and added that even if she did hear something from an
outside source in the future, she would base her decision solely
on the evidence presented. She expressed concern about having
to view photographs showing significant injuries to Canady but
affirmed that she would still be fair and consider all the
evidence.
When asked whether there was any reason why she would
prefer not to serve as a juror in this case, Juror No. 206630
answered in the affirmative, explaining that she had just
started a new job and was on a one-year probationary period.
She added that she had a one-year-old baby, and it could distract
her if he was sick. She wrote that she was willing to serve as a
juror if these reasons were not sufficient to be excused.
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Juror No. 206630 subsequently submitted a request to be
excused for undue hardship based on her new employment and
family obligations. She wrote that she had just started a new
job and that serving as a juror would seriously interfere with her
training and probationary period. She also explained that her
two young children were in daycare, but if they were sick and
her husband was unavailable due to work that she would have
sole responsibility to care for them. She added that she was
planning to have a baby in about 18 months and was concerned
that she could not take maternity leave at her new job if she was
selected as a juror and had to miss six months of work.
Following voir dire on this issue, the trial court denied the
hardship request. It acknowledged Juror No. 206630’s concerns
regarding potential adverse impact on her career if she were to
serve as a juror and then seek maternity leave soon after, but it
noted that her right to do so was legally protected.
Juror No. 206630 also submitted an update to her jury
questionnaire, relaying that her son was in the same second
grade class and catechism class as the child of a deputy district
attorney. She wrote that she had never spoken with this deputy
district attorney and only made the connection after she saw
him at a church event over the weekend. In subsequent voir
dire, Juror No. 206630 assured the court she had no initial
leaning in favor of the prosecution in this case and that she could
be fair and impartial to Hronis. She also affirmed that she
would not feel awkward or embarrassed if she voted to find
Hronis not guilty and then saw the deputy district attorney in
the future.
The defense challenged Juror No. 206630 for cause
“[b]ased on the relationship with [the deputy district attorney]
if for no other reason.” The court denied the challenge,
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explaining that there was no relationship between them. The
court also credited Juror No. 206630’s voir dire assurance that
she could keep any indirect relationship between the children
separate from this case. Juror No. 206630 was ultimately
seated as a juror on Hronis’s panel.
We conclude that substantial evidence supports the trial
court’s denial of the challenge for cause. Although Juror
No. 206630 expressed concern regarding potentially negative
career impacts were she to serve as a juror, become pregnant,
and request maternity leave in short succession, nothing in the
record suggests the court’s denial of her hardship request
resulted in any bias against the defense. Nor did the fact that
she and her husband were attorneys indicate she could not be
fair and impartial. Her tangential acquaintance to a deputy
district attorney involved in the case did not undermine her
representations. Instead, her written and voir dire responses
consistently affirmed her ability to be fair and impartial and to
follow the court’s instructions in evaluating evidence and
making a decision. The record supports the trial court’s
conclusion that Juror No. 206630 could be a fair juror. Thus,
the court did not err by denying Hronis’s challenge for cause.
bb. Prospective Jurors Kendra M., Judith W.,
Linda S., and Trieu C.
Hronis also claims the trial court abused its discretion in
granting the prosecution’s for-cause challenges to Prospective
Jurors Kendra M. and Judith W. and denying his challenges for
cause as to Prospective Jurors Linda S. and Trieu C. As to
Kendra M. and Judith W., even if we were to assume error, any
such error would be harmless because it did not adversely affect
the resulting trial. (See People v. Holt (1997) 15 Cal.4th 619,
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656 [“ ‘[T]he general rule [is] that an erroneous exclusion of a
juror for cause provides no basis for overturning a judgment’ ”].)
Regarding Linda S. and Trieu C., Hronis’s argument
proves no more effective. Even if the trial court erred in denying
Hronis’s challenge for cause, he would still need to establish
prejudice. (People v. Boyette (2002) 29 Cal.4th 381, 419.)
Neither prospective juror sat on Hronis’s jury, so it was
unaffected. (Ibid.) Hronis attempts to demonstrate prejudice
by arguing he was forced to exhaust his peremptory challenges,
and he further argues the court denied his request for additional
peremptory challenges.13 But even if the court’s rulings forced
Hronis to exhaust his peremptory challenges, it is insufficient to
show prejudice. Hronis must still show that any error resulted
in a jury that was not impartial. “When a defendant uses
peremptory challenges to excuse prospective jurors who should
have been removed for cause, a defendant’s right to an impartial
jury is affected only when he exhausts his peremptory
challenges and an incompetent juror, meaning a juror who
should have been removed for cause, sits on the jury that decides
the case.” (People v. Black (2014) 58 Cal.4th 912, 920, italics
added (Black); see id. at p. 921 [“the fact that defendant
requested additional peremptory challenges that the court did
not grant him does not support his claim, because he has failed
to show that an incompetent juror sat on his case” (italics
omitted)].) Because Hronis has not shown that an incompetent
juror sat on his jury, he has not shown prejudice based on the
court’s denial of his for-cause challenges, even assuming the
court erred.
13
Hronis exercised a peremptory challenge on Linda S.
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b. Voir dire of prospective jurors on their death
penalty views
Hronis next asserts the trial court’s death-qualification
voir dire was unfairly one-sided in violation of the Eighth and
Fourteenth Amendments to the federal Constitution and
deprived him of his right to a fair and impartial jury. He
contends the court removed prospective jurors opposed to the
death penalty with little to no questioning while going to great
lengths to rehabilitate prospective jurors who were overly
enthusiastic in favor of the death penalty. We conclude the trial
court did not err.
i. Legal principles
“Trial courts possess broad discretion over both
‘[d]ecisions concerning the qualifications of prospective jurors to
serve’ [citation] and the manner of conducting voir dire.” (People
v. Whalen (2013) 56 Cal.4th 1, 29 (Whalen).) Although trial
courts must be evenhanded in their death-qualification
questions, which are designed to discern whether prospective
jurors’ attitudes both for and against the death penalty will
impair their ability to serve as jurors, they retain extensive
discretion regarding the number and nature of the questions
about the death penalty that are posed to each prospective juror.
(Id. at p. 30; see People v. Mills (2010) 48 Cal.4th 158, 190 [“[W]e
cannot predicate a finding of error merely on the number of
questions the court asks” death-leaning and life-leaning jurors].)
This court has counseled against requiring a trial court’s death-
qualification voir dire to be similar for each prospective juror,
“lest the court feel compelled to conduct a needlessly broad voir
dire, receiving answers to questions it does not need to ask.”
(People v. Thornton (2007) 41 Cal.4th 391, 425 (Thornton).) We
have likewise cautioned reviewing courts that, “ ‘ “ ‘[d]espite its
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importance, the adequacy of voir dire is not easily subject to
appellate review. The trial judge’s function at this point in the
trial is not unlike that of the jurors later on in the trial. Both
must reach conclusions as to impartiality and credibility by
relying on their own evaluations of demeanor evidence and of
responses to questions.’ ” ’ ” (Whalen, at p. 30, italics omitted.)
Accordingly, “the court’s manner of conducting voir dire will not
be disturbed on appeal unless it renders the trial fundamentally
unfair.” (Id. at p. 31.)
Here, Hronis points to the court’s voir dire of 11
prospective jurors, five of whom expressed that they favored the
death penalty and six of whom expressed opposition to it, as
evidence that the court engaged in one-sided questioning that
resulted in a pro-death panel. A review of the questionnaire
responses and voir dire transcripts of these jurors supports the
conclusion that the court did not abuse its discretion or display
bias in questioning either death-leaning or life-leaning jurors.
ii. Voir dire of death-leaning prospective jurors
Hronis first highlights Prospective Juror Kenneth O. This
prospective juror was a retired sergeant of the California
Highway Patrol. He stated in his written questionnaire that he
was strongly in favor of the death penalty and viewed it as
necessary. He also indicated, however, that he could keep an
open mind about what the penalty should be and would listen to
all the evidence and the court’s instructions on the law before
reaching a decision. During voir dire, he affirmed several times
that it was possible he would have an initial leaning in favor of
the prosecution based on his decades of service on the California
Highway Patrol. He also said that, based on his experience, he
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would hold an officer’s testimony in higher esteem than a
civilian’s testimony.
Hronis contends the court used a leading question when it
asked Kenneth O. if he could weigh aggravating and mitigating
factors to arrive at a verdict of life without the possibility of
parole, and he complains that after the prospective juror
responded in the affirmative, the court did not further explore
this issue. But the trial court granted the defense’s challenge
for cause based on the juror’s pro-prosecution bias and favorable
views on the death penalty. Accordingly, the court’s brief voir
dire of Kenneth O. before excusing him for cause does not
support Hronis’s claim that it went to great lengths to
rehabilitate death-leaning prospective jurors.
Hronis also points to voir dire of Prospective Juror
Karrie W., who was not removed for cause. In her written
questionnaire, this prospective juror indicated she was strongly
in favor of the death penalty. But she also wrote that her
feelings on the death penalty were not so strong that she would
always vote for the death penalty. She likewise affirmed that
she would base a penalty determination on the evidence, and
she agreed that she would be able to listen to all the evidence
and the court’s instructions on the law and consider both death
and life without the possibility of parole before reaching a
decision on penalty.
During voir dire, the trial court asked Karrie W. whether,
despite her personal feelings on the death penalty, she could see
herself in an “appropriate case” imposing life without the
possibility of parole. The prospective juror responded that she
could. The court also asked whether she could honestly consider
both penalty options before reaching a verdict based on the
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evidence of the case and the court’s instructions on the law. She
answered, “yes.”
These questions were sufficient to allow the court to decide
whether Karrie W. could perform her duties in this capital case.
Hronis’s claim that she may have interpreted the court’s use of
the phrase “appropriate case” to mean one involving self-defense
or vehicular manslaughter is speculative and finds no support
in the record.
Next, Hronis highlights the voir dire of Prospective Juror
Gary C., who provided somewhat ambiguous questionnaire
responses. These responses indicated he was strongly in favor
of the death penalty based on an “eye for an eye” principle. But
he also wrote that he was “all for” life imprisonment without the
possibility of parole. He responded in the affirmative when
asked whether he felt so strongly in favor of the death penalty
that he would vote to find any circumstance true, yet answered
“no” when asked whether he had such strong feelings in favor of
the death penalty that he would always vote for death, no
matter what the evidence presented. He also indicated he
believed he was open minded about what the penalty should be
in this case and would be able to listen to all the evidence and
the court’s instructions on the law and consider both penalties
before reaching a decision.
During voir dire, the court asked Gary C. whether, given
his views in favor of the death penalty, he could consider life
without the possibility of parole as an option. He stated that he
could. The court rephrased the question, asking whether the
prospective juror’s feelings about the death penalty would
impair his ability “to give good faith, reasonable, honest
consideration to life without the possibility of parole as a
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sentencing option.” He responded that he understood the
question, and that his feelings about the death penalty would
not impair him. When the court asked whether he could see
himself, in an appropriate case, voting for life without the
possibility of parole, he said “yes.”
The court’s probing of Gary C.’s death penalty views, given
his somewhat conflicting questionnaire responses, was entirely
appropriate. (Whalen, supra, 56 Cal.4th at p. 34 [“As we have
explained, ‘we ordinarily defer to the court’s determination that
a prospective juror’s answers require clarification’ ”].) Here
again, Hronis’s claim that the prospective juror may have
interpreted “appropriate case” unduly narrowly is without
record support.
Hronis also points to the voir dire of Prospective Jurors
Linda E., Rosemary D., and Barbara B. as examples of the
court’s engaging in uneven questioning. He argues that the
court did not sufficiently question Linda E. and Rosemary D.
about their pro-death penalty views, while it posed too many
questions to Barbara B. about her opposition to it. But Linda E.
and Rosemary D. gave consistent written and oral responses
regarding their ability to put aside their personal feelings on the
death penalty and consider both penalties based on the evidence
and the court’s instructions before reaching a decision. Given
their unvarying answers regarding their ability to give fair and
honest consideration to both penalties based on the evidence and
instructions on the law, we see no error in the court’s
determination that additional questioning was unnecessary.
Moreover, Hronis’s counsel could have engaged in follow-up
questioning of Linda E. and Rosemary D., but they elected not
to do so.
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In contrast, Barbara B. gave somewhat conflicting
responses regarding her ability to impose the death penalty.
Although she described her feelings on the death penalty as
neutral, she added “it would only be [appropriate] in the most
extreme and heinous situations.” During voir dire, the court
probed the prospective juror on the latter answer, asking
whether it was limited to offenses such as war crimes or
horrendous mass activity, or if she would be willing to consider
the death penalty in a less severe case. She answered, “I think
it would be problematic for me to impose death on another
human being. Um, it seems an extreme form of punishment to
me.” When the court asked the juror whether she could see
herself in an appropriate case imposing the death penalty, she
responded that although she could see where it was appropriate
in the abstract, she had difficulty envisioning herself actually
doing it. When the court inquired whether the prospective juror
could give good faith, reasonable consideration to both penalties
after hearing all the evidence and law in this case and then
select the proper sentence, she responded, “I think that would
be a decision that would — that would haunt me.” The court
asked her to clarify whether she could make a decision, even
though it bothered her, or whether she could not make it at all,
she stated, “I think the, the outstanding fear of having to live
with that would prohibit me from making that decision.”
Given Barbara B.’s questionnaire responses and initial
voir dire answers, the court acted well within its discretion when
it probed her views regarding the death penalty through
additional questioning. A comparative review of the court’s
questioning of Linda E. and Rosemary D. does not indicate
judicial bias.
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iii. Voir dire of life-leaning prospective jurors
Hronis also points to the court’s questioning of several
other life-leaning prospective jurors as evidence that it engaged
in one-sided questioning. First, Hronis highlights the court’s
voir dire of Prospective Juror Selina B. He contends that
because she was a life-leaning juror, the court did not attempt
to rehabilitate her in the same manner that it dealt with death-
leaning jurors.
Selina B.’s questionnaire responses raised serious doubts
about her ability to impose death at all. She wrote, for example,
that, “Killing one person will not bring back the life of another.
Therefore [i]t will be difficult for me to end a life.” She also
explained that for her to consider voting for the death penalty,
“[t]he evidence would have to be so overwhelming and evil.”
Nonetheless, during questioning, the court sought to
understand whether Selina B. would truly be unable to impose
the death penalty. The court asked, “Is it so difficult to you to
do that that you would be unable, for example, to weigh the
factors in aggravation and mitigation and impose the death
penalty if, in fact, you thought that were the proper penalty?”
She responded, “Your honor, I have not been in a situation like
that, so it is hard for me to say what I would do at that time.”
The court stated: “I understand that, and I am asking you in
the context here really of an abstract question. When you look
in your heart and mind, do you see that it is a reasonable
possibility that if the aggravators substantially outweighed the
mitigators in this case and we get to a penalty phase that you
could go for the death penalty in that situation?” The juror
answered, “I don’t think I could.” The court later granted the
People’s challenge for cause, noting it found the juror’s oral
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statement that she could not impose the death penalty to be
credible, and her manner was sincere and reflective.
The court acted within its discretion when it asked the
clarifying questions it did. (Whalen, supra, 56 Cal.4th at p. 33
[trial court did not abuse its discretion when it asked questions
testing prospective juror’s questionnaire responses that were
inconsistent or indicated confusion, to clarify her beliefs and to
assess how firmly she held these beliefs before deciding whether
she could perform juror duties]; People v. Martinez (2009)
47 Cal.4th 399, 446.) In light of Selina B.’s questionnaire
responses, the trial court’s follow-up questions were sufficient to
ascertain whether her views regarding the death penalty would
substantially impair her performance as a juror. (Thornton,
supra, 41 Cal.4th at p. 425.)
Hronis also points to Prospective Juror Jennifer C.’s voir
dire, contending the court engaged in leading questioning by
asking the juror whether her conscience would allow her to elect
a penalty rather than inquiring if she could weigh aggravating
and mitigating circumstances. But Jennifer C.’s questionnaire
responses strongly suggested she would be unable to vote for
death. She answered in the affirmative when asked whether
she had any moral or religious beliefs that might conflict with
her duties as a juror. She explained that as a Jehovah’s Witness,
biblical standards governed her thinking and beliefs. When
asked for her general feelings on the death penalty, she wrote,
“I feel that I would not want to bear that responsibility to choose
death for an individual. I believe that if that person were to be
put to death, and then later found innocent, I would biblically
be responsible for his or her life.” Although she characterized
her position on the death penalty as neutral, she added, “I would
not want to bear the responsibility for the individual’s life if I
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should choose incorrectly.” She later wrote that she would not
want the case to get to the penalty phase for fear she would have
to choose, and she indicated she was unsure if she could be open
minded about what the penalty should be before trial began.
She responded in the negative when asked whether she would
be able to listen to the evidence and legal instructions and
consider both penalties before reaching a decision, explaining
that her conscience would not allow her to choose either way. In
the concluding questions section, Jennifer C. wrote that she
would prefer not to serve as a juror because she did not want to
stand in judgment for the life of another and she “would not
want to vote either way.”
During voir dire, Jennifer C. confirmed that her
conscience would not allow her to choose a penalty. When the
court asked whether she would abstain from voting if the case
went to the penalty phase, she confirmed she would. The court
later granted the People’s challenge for cause. The court’s
succinct questioning regarding the juror’s ability to consider
both penalties was appropriate in light of the prospective juror’s
consistent written and oral statements affirming she could not
do so.
Similarly, the court’s relatively brief questioning of
Prospective Juror JoAnn Z. was warranted given the juror’s
forceful oral responses indicating she would be unable to vote to
impose the death penalty. In her questionnaire, this prospective
juror conveyed a general degree of discomfort with the death
penalty. She wrote that her feelings about the death penalty
were “[v]ery difficult,” her feelings about life imprisonment
without the possibility of parole were “[g]ood in capital cases,”
and she was opposed to the death penalty. She added that it
would be a “very, very difficult thing
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