People v. Johnson

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CEDRIC JEROME JOHNSON,

Defendant and Appellant.

S075727

Los Angeles County Superior Court

TA037977

December 27, 2018

Justice Cuéllar authored the opinion of the court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Kruger, and Raye* concurred.

*

Administrative Presiding Justice of the Court of Appeal,

Thirds Appellate District, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

PEOPLE v. JOHNSON

S075727

Opinion of the Court by Cuéllar, J.

On November 25, 1998, a Los Angeles County jury

convicted defendant Cedric Jerome Johnson of the first degree

murders of Gregory Hightower and Lawrence Faggins, and

found true the multiple-murder special circumstance, arming,

and personal use of a firearm allegations. (Pen. Code, §§ 187,

subd. (a), 189, 190.2, subd. (a)(3); id., former §§ 12022, subd.

(a)(1), 12022.5, subd. (a); all further undesignated statutory

references are to this code.) Following the penalty phase trial,

the jury returned a verdict of death. This appeal is automatic.

(§ 1239, subd. (b).)

Many of defendant’s claims in this appeal relate to the

consequences of his disruptive behavior during the proceedings.

One such consequence was his absence from the trial. As

described in detail below, defendant’s conduct conveyed a

disregard for courtroom norms as persistent as it was severe.

Beginning with his first trial on these charges, which ended in

a hung jury, defendant unleashed profanity-laced tirades and

accusations of racism against a number of different judges. He

also expressed his dissatisfaction with his attorney, Steven K.

Hauser, by repeatedly spitting on him and threatening to kill

him and his family. Based on his own observations of

defendant’s behavior and reports of defendant’s behavior in

prior proceedings, Judge Jack W. Morgan ordered defendant to

wear a stun belt in the courtroom. During jury selection at the

first trial, defendant called Hauser names and threatened to

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beat him up. He also repeatedly interrupted the proceedings.

Because the jury was unable to reach a verdict as to either count

of murder — the jury was evenly divided as to the Hightower

murder, and voted 11 to 1 for guilt of the Faggins murder — the

court declared a mistrial.

When proceedings resumed, so did defendant’s disruptive

behavior. Once again, defendant interrupted the court, spouted

profanity, and spit on Hauser. Then, as the court, counsel, and

defendant convened in the jury assembly room with the venire

for the retrial, defendant suddenly attacked Hauser, striking

him on the head and knocking him out of his chair. Defendant

could not be controlled with the stun belt and was subdued only

with the assistance of several deputy sheriffs. After dismissing

the venire, the trial court barred defendant from the courtroom

for the rest of the proceedings. Defendant declined to listen to

the proceedings from his lockup cell using a speaker. When

defendant returned to the courtroom for sentencing, defendant

taunted and threatened the court and the attorneys: “What you

gon’ do when I get out? [¶] You and I both all know I’m getting

out. [¶] All you lawyers.”

At various points, the judges presiding over the

proceedings expressed concern that defendant sought to inject

error into the trial through his disruptive behavior. Not

surprisingly, defendant now alleges error arising from the trial

court’s efforts to manage his behavior, including the decision to

bar him from trial and the finding that he forfeited his right to

testify. What we conclude is that defendant’s repeated efforts to

compromise the integrity of a capital trial were unsuccessful. In

each instance where the trial court made decisions now

challenged by the defendant, the court acted within the

permissible scope of its discretion.

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With respect to defendant’s other claims, we find the trial

court either did not err or did not cause prejudice to defendant.

So we affirm the judgment in its entirety.

I.

The Los Angeles County District Attorney charged

defendant Johnson and codefendant Terry Betton with the

murders of Hightower and Faggins. The first trial ended in a

mistrial after the jury deadlocked on all charges. At the second

trial, the jury convicted defendant of both murders and

sentenced him to death. The jury also convicted codefendant

Betton of Faggins’s murder but deadlocked as to Hightower’s.

Betton was sentenced to an indeterminate life term for the

murder, and that judgment was affirmed by the Court of Appeal

(People v. Betton (July 12, 2000, B130960) [nonpub. opn.].)

A. Guilt Phase

On the night of September 26, 1996, Shetema White threw

a party at her Jordan Downs apartment in Watts to celebrate

her brother’s release from custody. Faggins and Hightower

attended the party. But Faggins had reportedly “snitched” on

someone known as “Mo-C.” Many people at the party warned

Faggins he was in danger and suggested he leave.

Their advice was sound. Defendant was in a nearby

apartment with codefendant and Tyrone Newton. They had a

view of Hightower and Faggins at the party. Defendant said,

“You know we can do them right here and right now.” When

defendant asked Newton whether he would kill Hightower,

Newton said, “he ain’t did nothing to me.” “It ain’t the fact he

did something to you,” defendant explained, “we’re getting rid of

all the snitches.”

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Sometime before 10:00 p.m., after being at the party for 20

to 30 minutes, Charles “Pirate” Lewis told Hightower

“something just doesn’t feel right” and suggested they leave.

Hightower got into the driver’s seat of his girlfriend’s car; Lewis

got in the passenger seat. Robert Huggins (Hightower’s half-

brother) got into his own car; he was going to join them at

Hightower’s house. Faggins left the party around the same

time. Around 40 to 50 people from the party were outside.

Newton went outside to smoke a cigarette. As he saw

defendant come out of the apartment, Newton felt his own heart

racing and wondered whether defendant could “really do this.”

Defendant approached Faggins with a gun and fired, hitting him

in the shoulder. Faggins took off running. As Faggins ran

between Huggins’s car and a van, defendant continued shooting.

When defendant stopped shooting, codefendant started

shooting; defendant then resumed shooting. Defendant had a

handgun (perhaps a Beretta) and a fully automatic Uzi.

Codefendant had a handgun in each hand. Faggins fell when

defendant sprayed him with bullets from the Uzi.

Lewis had already exited Hightower’s girlfriend’s car. As

defendant and codefendant were walking back to the party,

Lewis was moving a bicycle that happened to be in the car’s way.

According to Huggins and Newton, defendant approached the

driver’s side of the car and fired several times. Newton reported

that defendant reached into the car with his gun; Huggins, on

the other hand, said that defendant and the gun remained

outside the car the whole time. Neither one saw codefendant

fire at Hightower.

Leonard Greer was a few apartment buildings away when

he heard the gunfire. He ran to see what had happened and

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came upon defendant and codefendant, who were running away.

Defendant had what appeared to be a gun in his hand. A short

time later, Greer saw his sister, Rochelle Johnson (no relation

to defendant), walking towards him. She was crying and

covered in blood. She said, “They didn’t have to kill him. C.J.

[defendant] didn’t have to kill him.” Together they walked to

Rochelle’s apartment. Their mother, Annette Johnson, arrived

about 10 minutes later.

The foregoing account of the homicides came primarily

from the statements of Greer, Huggins, and Newton. But each

had also made statements tending to undermine their accounts

of what happened.

At trial, Newton denied hearing defendant talk about

killing snitches in general or these victims in particular. He

likewise denied knowing about any disagreements between

defendant (or codefendant) and the victims. Newton’s contrary

statements came from a videotaped interview with Los Angeles

Police Detective Chris Waters while Newton was in custody for

possessing cocaine. The videotaped interview, which occurred

two weeks after the murders, was shown to the jury. At trial

Newton disavowed his prior statements. He testified initially

that he was intoxicated during the interview and did not know

why he supplied the false information. He subsequently

testified that he made those statements because he “got caught

with something”; the arresting officer offered to “drop my case”

in exchange for information about the murders; and he just

“followed along with” what the officer was saying. Both victims

were friends of his, as were defendant and codefendant.

During the videotaped interview with Waters, Newton

identified defendant as the shooter of both victims and said

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defendant had used the same gun for each murder. At trial,

though, Newton denied being at White’s party and claimed he

had been at home in Hawthorne with family the whole time. He

denied talking about the incident with Huggins or Greer when

he saw them about a week later, or with defendant and

codefendant at any time. Newton insisted at trial that he did

not know where or when the victims were shot; he had told

Waters the shootings occurred around 4:00 or 5:00 p.m. on

September 25, the day before they actually occurred. During the

interview, he told Detective Waters that he had previously

provided information to the police and had received benefits for

his information. At trial, Newton admitted that he was released

a short time after making his videotaped statement and was

never prosecuted for the cocaine possession. Detective Waters

confirmed that Newton said something like “the more y’all get

me off y’all line, the happier I will be,” but testified that she had

not promised Newton anything in exchange for his statements.

During the interview, Newton also expressed reluctance to

testify at any future trial. He stated that he had “too many

family in the projects” and did not want them to “die[] over me,

man.” He also claimed he himself would “be a dead victim if I

get on that stand and tell you everything I’m telling you, and

he’s sitting there watching me.” Newton added, “I’ll be dead. I’ll

be a dead man walking. I might as well just go on and blow my

head off. Once I get through telling everybody about him, I

might as well go home and kill myself, ’cause I ain’t gonna

survive. . . . I don’t want to be on no stand on nobody. That’s

the one thing I don’t want to do. . . . I will not — never be — I

will never get in court on this thing, ’cause I know his people be

in the courtroom.” At trial, Newton explained that he wouldn’t

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be labeled a “snitch” because his prior statement inculpating

defendant and codefendant “was a lie.”

Huggins, for his part, spoke with Detective James Vena

about defendant’s role in these murders during an in-custody

interview in December 1996. He addressed defendant’s role in

the murders again at trial. Huggins believed defendant had

used an Uzi and a nine-millimeter Beretta, and that

codefendant had used one or two nine millimeters. Huggins had

earlier told Vena that Faggins dropped his gun — possibly a .380

or an Uzi — while running from defendant, and that defendant

picked it up and used it to shoot at Faggins. But at the

preliminary hearing in this case, he said he could not see the

shootings because it was dark. At trial, Huggins explained the

discrepancy by pointing out that at the time of the preliminary

hearing he had been placed in a lockup cell with defendant and

codefendant; that defendant had asked him, in front of

codefendant and two dozen other inmates, “why’d I [Huggins]

say all the stuff I said about him”; that Huggins became afraid

for his safety; that he had asked to see the deputy district

attorney before court that day, where he stated that he did not

want to testify until he got out of jail; and that he did not testify

truthfully at the preliminary hearing because he feared being

labeled a “snitch.” Huggins said he did not volunteer the

information about defendant’s involvement in the shootings

earlier because defendant “was still running around on the

streets.” Indeed, defendant asked Huggins the morning after

the murders whether he believed defendant had shot Huggins’s

brother. Huggins said nothing and walked away. Huggins did

not see Newton or Greer that night, but noted there were a lot

of people at the party.

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Greer had previously been convicted of numerous felonies.

He admitted that during a conversation with Detective Vena in

March 1997 he had falsely claimed to have witnessed the

shooting himself. He also falsely stated that the shootings were

in retaliation for codefendant having been “beaten out of” some

cocaine. Greer admitted that he “wanted to do something about

this case.” But after he learned that Detective Vena had played

a recording of their conversation in court, he “feared for [his]

life”: “[O]n the street, I mean they already got me as a snitch.

So that’s being said in court that I’m testifying, when I told on

C.J., that don’t do nothing but put my life in danger.” Greer

testified at trial that he had told Officer Christian Mrakich what

Rochelle said to him about the shooting, but Mrakich denied any

such conversation occurred.

Other witnesses also offered testimony about the events

that evening.

Lewis testified that he heard gunshots as he neared the

bicycle blocking Hightower’s girlfriend’s car and immediately

ducked down. He then heard more shots as he was about to get

in the car, and instead took off running. He said he did not know

who did the shooting. But Huggins testified at trial that he had

spoken with Lewis shortly after the shooting. In that

conversation, Lewis had said he heard Hightower ask defendant

why he “was doing him [Faggins] like that out there in front of

all them people” before defendant shot Hightower. Lewis

testified at trial, though, that he did not see Huggins at all on

the night of the shooting. While Lewis did see Huggins the next

morning, he denied talking about what happened the night

before.

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Greer’s sister, Rochelle, offered testimony favorable to the

defense. So did their mother, Annette. Rochelle testified that

she had been at the party, along with Hightower and Lewis. She

did not see defendant or Faggins there. She said that

codefendant, who was her boyfriend, stayed at home all evening

with her four-year-old child. Rochelle testified that she had

returned home, which was a couple of buildings away, when she

heard screaming and then a pounding on her door. A woman

told her there had been an accident. Rochelle, a nursing

student, ran to offer help. She claimed codefendant stayed

behind.

Rochelle found Hightower bleeding heavily. She tried to

offer aid, but Hightower was unresponsive. Two other people

put him in a car to take him to the hospital. When she got home,

codefendant noticed the blood on her clothes and asked her what

happened. Rochelle said there must have been a drive-by

shooting, and called her mother to seek comfort. Annette

arrived with Rochelle’s brother, Leonard Greer. When Greer

learned who had been shot, he said, “Oh, my God.” Rochelle

denied walking back with Greer to her apartment after the

shooting, denied ever discussing with him what she saw or knew

about the shooting, and denied saying anything to him about

why it happened. Rochelle was aware that Greer was lying

when he claimed to have seen the shootings and admitted that

they had argued about his statements. Detective Vena heard

Rochelle call Greer a “snitch” outside a courtroom during a prior

proceeding in this case. Greer, too, testified that Rochelle had

called him a “snitch” on that occasion. But Rochelle denied

calling her brother that word.

Annette said she had wanted to go and comfort her

daughter right away, yet it had taken her son over two hours to

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come pick her up. Annette thought she heard codefendant’s

voice when she arrived at Rochelle’s apartment, but did not see

him. Rochelle did not tell Annette she had seen the shooting or

knew who had done it. According to Huggins, Rochelle and

Annette each told him, during the trial, something like, “They

know who did it; why they still calling [me] to court?” Rochelle

denied this.

A pathologist testified that Hightower suffered five

gunshot wounds, all from a large caliber weapon such as a .45.

He did not find any soot or stippling on Hightower’s head or face.

(One would expect to find stippling if the barrel of the gun had

been as close to the victim as Newton described it.) Another

pathologist testified that Faggins suffered four gunshot wounds

from a .25-caliber weapon.

Police found 33 discharged cartridge cases at the scene

from a variety of firearms. These included cases from a .380 (all

fired from the same gun), a .45 (all fired from the same gun), and

a nine millimeter (all fired from the same gun), as well as a lone

cartridge case from a .25. A firearm examiner testified that an

Uzi can fire nine-millimeter or .45-caliber bullets. But an Uzi

(like most fully automatic weapons) typically leaves a

characteristic mark in the shape of a quarter moon at the top of

the shell — and no such markings appeared on the shells here.

No guns related to the shooting were ever recovered.

Shetema White, the party’s host, denied seeing defendant

or codefendant that night. She did not recall hearing gunfire,

either. Jocelyn Smith, who married defendant while he was

awaiting trial, testified that defendant was home asleep around

7:30 or 8:00 p.m. on the night of the murders and that he was

still asleep when she woke him and informed him that

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Hightower and another person had been shot. He did not leave

the apartment that night, to her knowledge. Jocelyn said that

she visits defendant often and discusses the case with him. Her

mother, Joyce Tolliver, testified that she saw two men walking

by her door shortly after the shooting. The shorter one had a

gun (“like a[n] Uzi”) in his hand. Neither of the men was

defendant or codefendant. Maureen Wallace, a neighbor, saw a

couple of men running her way a minute or two after she heard

the gunshots. One had a gun and the other had a dog on a leash,

but neither was defendant or codefendant.

B. Penalty Phase

The jury convicted defendant of both murders. The jury

also found true the multiple-murder special circumstance as

well as the allegations that defendant personally used a firearm

and that a principal was armed with a firearm. At the penalty

phase, the prosecution offered as evidence in aggravation two

incidents: (1) defendant’s conviction for selling marijuana in

1993; and (2) defendant’s assault against his attorney on

September 17, 1998, which occurred in the jury assembly room

in front of 400 prospective jurors.

During the latter incident, defendant and codefendant

were wearing remotely activated control technology (REACT)

stun belts underneath their clothing. There were no visible

restraints. The judge had just taken the podium to address the

prospective jurors “when suddenly, and without any

forewarning, defendant Johnson struck his attorney in the

head.” As defendant continued the attack, a sergeant in the

deputy sheriff’s department activated the REACT belt. When it

did not appear to work, deputies attempted to restrain

defendant directly. But defendant continued kicking at counsel

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and spit at him. Defendant was ultimately subdued and

handcuffed.

Hightower’s father, Larry Hightower, testified that

Hightower had managed to overcome his early criminal history.

He graduated from high school, joined the staff of

Congresswoman Maxine Waters, and ultimately opened his own

business with the help of Waters, Jim Brown, and the Reverend

Jesse Jackson. The business, The Playground, garnered

national attention, and Hightower once hosted President

Clinton there. Hightower also helped create a truce between

gangs after the 1992 Watts riots.

Psychiatrist Marshall Cherkas testified that defendant

was uncooperative when Cherkas sought to meet with

defendant in jail. Even with a cursory (five-minute)

examination, Cherkas could tell defendant suffered from

psychosis with “some kind of a thinking disorder.” Defendant’s

records indicated that he was violent and had problems with

brain functioning.

II.

A. Barring Defendant from Trial Based on His

Misconduct

Defendant had a long history of disruptive behavior

during judicial proceedings and a fraught relationship with his

attorney, Steven Hauser. In a previous prosecution for a

different double homicide, the trial court eventually excluded

defendant from the courtroom, and his attorneys “proceeded in

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his absence.”1 On February 19, 1998, before the first trial in this

prosecution (and while defendant was representing himself),

Judge John J. Cheroske removed defendant from the courtroom

because of his repeated outbursts. The proceedings resumed,

with defendant present, a short time later. On March 5, 1998,

after defendant’s pro se status was revoked, he warned Judge

Cheroske, “You can’t stand up to me. My collateral attack

against you will be unholy in this trial. Remember that.”

Defendant was again removed from the courtroom. On the way

out, he called the court a “fucking racist” and “a Polack.” After

a brief recess, the court announced it had learned, through the

bailiff, that defendant did not wish to return to court and had

declined to listen to an audio feed of the proceedings. Defendant

similarly refused to attend or listen to the proceedings at the

next three hearings on April 7, 8, and 20, 1998, “if Mr. Hauser

is his attorney.” Defendant also refused to appear at a hearing

before Judge Hom on April 22.

Later that day, with Judge Morgan presiding, Hauser

announced that defendant was refusing to appear at trial until

his pro se rights were restored. At a subsequent hearing on May

13, 1998, Hauser reported that defendant “cursed and spit” at

him the last time they spoke, so Hauser requested that the

bailiff be reassigned the task of inquiring whether defendant

wanted to attend or listen to the proceedings. Defendant then

agreed to return to court and was shackled. After the bailiff

warned that defendant “may have a plan to do something” and

the court ordered defendant wear a stun belt, defendant

1

According to the prosecutor below — who had also

prosecuted defendant on these earlier charges — the jury

acquitted defendant of one count and deadlocked on the other.

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vociferously objected, called Judge Morgan a racist, and cursed

at the court. Defendant was again removed from the courtroom.

Defendant later returned to court wearing a stun belt. He

announced that “[m]y record will reflect that I do not use profane

language in a court.”

After the first jury trial ended in a deadlock, the parties

convened for a status conference. Defendant began the hearing

by spitting twice on his attorney and interrupting the court.

When instructed not to speak “unless you raise your hand and I

acknowledge you,” defendant responded, “Fuck you and the

staff. Fuck you and suck my dick.” Defendant tried to exit the

courtroom, but the court instructed the bailiff, “As many people

you need, we’ll keep him here. If you need more people here,

that is fine.” Defendant spit twice more on his attorney. As the

court set forth its reasons for declining to reinstate defendant’s

pro se status — which included the observation that “this man

is not capable of conducting his own trial. He would turn the

trial into a total circus” — defendant warned the court, “I told

you to suck my dick. Remove yourself from my court. Fuck

yourself. Suck my dick. Suck my dick. Fuck your momma.

You’s a racist.”

On August 25, 1998, when the parties convened to discuss

the juror questionnaire, defendant reiterated his lack of faith in

Hauser and claimed to be looking for private counsel. Jury

selection was scheduled to begin on September 17, 1998.

Hauser was still representing defendant at the

proceedings on September 17, 1998, which began in the

courtroom. The plan was for everyone to go down to the jury

assembly room, where the court would introduce the parties to

the 400 prospective jurors, provide a time estimate and hand out

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hardship questionnaires, and then proceed to a full introduction

of the case and distribution of the general questionnaires. After

Hauser objected to the bailiff’s plan to place defendant in leg

chains, Judge Cheroske ruled that defendant and codefendant

would instead wear stun belts.

In the jury room shortly thereafter, as the clerk was

asking the prospective jurors to rise and be sworn, defendant

suddenly and violently attacked Hauser, striking him on the

head. Defendant exclaimed, “That mother fucker. I don’t want

him. Mother fucker. Fucking ho (sic).” Deputy sheriffs rushed

to restrain defendant, and Sergeant McLin instructed him to sit

down. The stun belt was activated twice, but it had little or no

effect. Defendant refused to cooperate, and it “took any number

of deputy sheriffs to attempt to subdue him.” Defendant

complained, “Mother-fucker. Tried to dump me in trial. [¶] I

don’t want you. I do not want this man. He do not represent my

interest, ladies and gentlemen. I’m qualified to represent

myself. This man has intentionally dumped me in trial.” The

court adjourned, but defendant interjected, “They do a lot of

illegal shit in these courtrooms” and attacked Hauser a second

time. A deputy suffered a finger injury in the melee. Hauser

suffered visible facial injuries and swelling. Afterwards,

defendant bragged to the bailiff that he would attack Hauser

again if given the opportunity.

Back in the courtroom, outside the presence of defendant

and the prospective jurors, the court made a finding that

defendant’s actions were intentional and designed “for one more

time to disrupt the proceedings and delay it.” The court added,

“He is out of control. I will not allow him back in this

courtroom.” The court allowed defendant to listen to the

proceedings by way of a speaker in his cell if he so chose — and

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defendant did not choose to do so — but concluded “there is no

other possible solution to prevent such outbursts again.” Back

in the jury assembly room, over half of the prospective jurors

indicated that defendant’s unprovoked attack would prevent

them from being fair jurors. The court accordingly dismissed

the venire.

On September 21, 1998, defendant stated in no uncertain

terms that he did not want to listen to the trial. Sergeant McLin

also overheard defendant threaten Hauser: “I’m going to kill

you and your family, you punk mother-fucker.” The court noted

for the record that defendant had repeatedly disrupted the

hearing by banging or kicking on the bars of the adjacent lockup

cell and making “extremely loud” noises.

At the hearing on October 2, 1998, the court noted that

defendant, who was in the court building, had chosen not to

listen to the proceedings and that he was no longer in the lockup

cell “because of his repeated disruptions in the last proceeding

by continually banging against the lockup door to the point

where we could barely conduct court here.”

At the next hearing, on October 19, 1998, the court found

it “clear” that “despite any promises to the contrary, Mr.

Johnson will continue to do any and everything possible to

prevent the trial from proceeding.” The court identified the

following incidents as proof of defendant’s unwillingness to

correct his behavior: defendant’s spitting on Hauser; defendant

attacking Hauser in front of 400 prospective jurors; defendant

continuing to attack Hauser despite activation of the stun belt,

requiring six bailiffs to subdue him; defendant threatening to

kill Hauser and his family upon learning that Hauser would not

be relieved as counsel and that trial would not be delayed; and

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defendant slamming the lockup doors and creating such a

disturbance that it was difficult to hear in the courtroom. The

court concluded, “I’m not going to have him in this courtroom no

matter what he promises,” since any promise to behave “would

be simply a subterfuge to gain access to the courtroom and allow

him to continue his offensive, violent and outrageous conduct.”

The court reiterated that defendant could choose to listen to an

audio feed of the proceedings. It also ordered daily transcripts

of the trial be made available to defendant.

Prior to voir dire, the court instructed the new venire that

defendant “will not be present for these proceedings. The court

is instructing [] that you are not to speculate as to the reasons

for his absence, nor is this a matter which in any way can affect

you or your verdict in this case.” Over the course of the trial,

defendant consistently declined to listen to the proceedings.

Hauser sought to communicate with defendant “almost on a

daily basis,” but defendant refused to talk (or sometimes even to

come to the attorney-client meeting room) and instead

continued trying to spit on him. The bailiff once overheard

defendant tell Hauser that he should have taken the

opportunity “to slit your throat” in front of the 400 prospective

jurors. The jury panel was instructed about defendant’s absence

as follows: “Defendant Cedric Johnson has voluntarily absented

himself from these proceedings. This is a matter which must

not in any way affect you in this case. [¶] In your deliberations,

do not discuss or consider this subject. It must not in any way

affect your verdict or findings you may be asked to make in

connection with your verdicts.” Neither side mentioned

defendant’s absence during argument.

After the jury found defendant guilty as charged,

defendant continued “refus[ing] to leave his confinement cell.”

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During the penalty phase, defendant was asked to talk with

Hauser about testifying. Defendant told jail personnel he didn’t

want anything to do with Hauser or the trial. Indeed, defendant

refused to participate “in any way” when the jury returned its

penalty verdict, even to watch the proceedings on closed-circuit

television.

For sentencing, defendant came to court “in full

restraints.” Defendant addressed the court at some length. His

contention was that he had tried to conduct himself “courteously

and strictly by the law,” but “[i]n return” had been “disrespected

and penalized because of my abilities to comprehend and

articulate the law.” He claimed that the only reason Hauser

refused to withdraw as counsel was “because his purpose on this

case was to subvert and undermine. [¶] It got so, I started

spitting in this man’s face. I then physically attacked him,

which never should have occurred. The court would like to

switch the problem on me.” After sentence was pronounced,

defendant wondered aloud, “What you gon’ do when I get out?

[¶] You and I both all know I’m getting out. [¶] All you lawyers.

[¶] Yeah.”

1. The adequacy of the October 19, 1998, hearing

barring defendant from the trial

At the hearing on October 19, 1998, the trial court

described defendant’s attack on Hauser in the jury assembly

room, defendant’s threats against Hauser and his family and his

repeatedly spitting on Hauser, and defendant’s disruptive

behavior while in the lockup cell adjacent to the courtroom.

Based on those incidents of misconduct, the court concluded that

defendant –– who was not present at the hearing –– should be

barred from the courtroom. The court conveyed that it would

view any promise of good behavior by defendant as “a subterfuge

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to gain access to the courtroom and allow him to continue his

offensive, violent and outrageous conduct.” At the same

hearing, the court ordered that defendant be offered an audio

feed of the proceedings and daily transcripts of the trial.

Defendant claims the trial court erred in deciding to bar him

from trial during a hearing at which he was not present.

A capital defendant has a federal constitutional right “to

be present at any stage of the criminal proceeding that is critical

to its outcome if his presence would contribute to the fairness of

the procedure” (see Kentucky v. Stincer (1987) 482 U.S. 730, 745)

and a state statutory right to be present at “ ‘critical

proceedings.’ ” (People v. Perry (2006) 38 Cal.4th 302, 311; see

§§ 977, 1043.) Under federal law, a capital defendant may

voluntarily, knowingly, and intelligently waive the right to be

present. (People v. Davis (2005) 36 Cal.4th 510, 531.) Under

California law, a capital defendant may be absent from the

courtroom for only two reasons: “(1) when he has been removed

by the court for disruptive behavior under section 1043,

subdivision (b)(1), and (2) when he voluntarily waives his rights

pursuant to section 977, subdivision (b)(1).” (People v. Jackson

(1996) 13 Cal.4th 1164, 1210.)2 The Attorney General does not

claim defendant waived his right to be present, nor does any

waiver appear in the record. But he does assert that defendant

forfeited his state and federal right to be present by physically

attacking his counsel and disrupting the proceedings.

2

Even so, a capital defendant may not waive the right to be

present at certain proceedings, including those portions of a trial

in which evidence is taken before the trier of fact. (People v.

Jackson, supra, 13 Cal.4th at pp. 1210-1211.)

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We agree. In Illinois v. Allen (1970) 397 U.S. 337 (Allen),

the high court “explicitly” held “that a defendant can lose his

right to be present at trial if, after he has been warned by the

judge that he will be removed if he continues his disruptive

behavior, he nevertheless insists on conducting himself in a

manner so disorderly, disruptive, and disrespectful of the court

that his trial cannot be carried on with him in the courtroom.”

(Id. at p. 343.) Defendant complains he received no such

warning from the judge prior to attacking counsel. But even if

this is so, a warning is not a constitutional prerequisite to a

forfeiture of the right to be present. Some misconduct, such as

a violent assault in court, is so dangerous as to justify a

defendant’s removal even without a prior warning. (See King v.

Superior Court (2003) 107 Cal.App.4th 929, 943 [“We read . . .

Allen . . . to permit loss of a constitutional right in certain

circumstances based on misconduct, even without a prior

warning”]; accord, Gilchrist v. O’Keefe (2d Cir. 2001) 260 F.3d

87, 97; People v. Wilkins (N.Y.App.Div. 2006) 822 N.Y.S.2d 271,

272-273.) Because “dignity, order, and decorum” are essential

to the administration of criminal justice, a trial court “must be

given sufficient discretion to meet the circumstances of each

case.” (Allen, at p. 343.)

In this case, defendant physically assaulted counsel in full

view of hundreds of witnesses. He refused to let up even when

he was set upon by deputy sheriffs and his stun belt was

activated, and managed to launch a second attack on counsel

while swarmed by deputy sheriffs. Defendant visibly injured

counsel and a deputy sheriff, and at no point in the proceedings

expressed any contrition or remorse stemming from these

attacks. The trial court could reasonably conclude that

defendant’s attack justified his exclusion from the courtroom,

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even though he had not specifically been warned about the

consequences of such conduct. (See People v. Staffney

(Mich.Ct.App. 1990) 468 N.W.2d 238, 240 [“Defendant should

not be permitted ‘one free swing’ at his attorney”].)

Nor was the trial court required to undertake a full

evidentiary hearing, with notice to the defendant, an

opportunity to present and cross-examine witnesses, and the

appointment of new counsel, before making any ruling at the

October 19 proceeding. Defendant’s assault took place in open

court, albeit while the court was convening in the jury assembly

room, and was accompanied by profanity that was transcribed

by the court reporter. (Cf. People v. Lewis and Oliver (2006) 39

Cal.4th 970, 1032 [“The court properly found, based on its own

observations, that Oliver was dangerous in the courtroom. It

did not need to summon outside witnesses to resolve the

shackling question”].) The trial court could, and in this case did,

rely on its own observations of the events to determine that

defendant was “out of control,” that “his actions were

intentional,” and that “they were planned for one more time to

try to disrupt the proceedings and delay [the trial].” (See People

v. Huggins (2006) 38 Cal.4th 175, 202; cf. U.S. v. Leggett (3d Cir.

1998) 162 F.3d 237, 250 [upholding forfeiture of the right to

counsel without an evidentiary hearing; “An evidentiary

hearing was not necessary because Leggett assaulted [counsel]

in full view of the district court”]; State v. Lehman

(Minn.Ct.App. 2008) 749 N.W.2d 76, 81 [upholding forfeiture of

the right to counsel, without an evidentiary hearing, where the

defendant attacked counsel and punched him repeatedly;

“various federal and state courts have . . . determined that the

right to counsel can be summarily forfeited for extremely serious

misconduct similar to that which occurred here”].)

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Defendant contends an evidentiary hearing was required

here because the trial court’s ruling relied in part on defendant’s

threats against counsel and his family, which were uttered

outside the court’s presence. We disagree. Defendant’s physical

assault against counsel, followed by his repeated disruption of

the subsequent hearing by banging on the metal door of his

lockup cell, were sufficient in themselves to justify his exclusion

from the courtroom. And defendant himself concedes that his

attack on Hauser was “clearly the primary reason” for excluding

him from the trial. Even if the trial court erred by considering

defendant’s threats against Hauser and his family in addition to

the other instances of misconduct, the error was harmless under

any standard. Before defendant ever uttered those threats, the

court had already indicated that defendant would be excluded

from the courtroom. Its ruling at that time was based on the

attack and “the record,” which was “replete with the outrageous

conduct of Mr. Johnson.” The court determined that defendant

“is out of control. I will not allow him back in this courtroom.”

(See State v. Lehman, supra, 749 N.W.2d at pp. 85-86.)

Moreover, nothing in the record tends to justify or mitigate any

of defendant’s misconduct, suggest that it did not occur, or

indicate that a hearing would otherwise have been beneficial to

defendant. (See People v. Davis, supra, 36 Cal.4th 510, 533;

People v. Douglas (1990) 50 Cal.3d 468, 518; accord, Jones v.

Murphy (2d Cir. 2012) 694 F.3d 225, 239 [“Any argument that

Jones had a right to be present during the discussion of the

consequences of his own violent and disruptive behavior would

be circular, and would imply that a court could never exclude a

defendant under Allen”]; Campbell v. Rice (9th Cir. 2005) 408

F.3d 1166, 1169, fn. 1, 1172-1173; Diaz v. Castalan (C.D.Cal.

2008) 625 F.Supp.2d 903, 921.) Indeed, the trial court

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reasonably believed “that despite any promises to the contrary,

Mr. Johnson will continue to do any and everything possible to

prevent the trial from proceeding.”

We likewise reject defendant’s claim that the trial court

was obligated to appoint new counsel to represent him at the

October 19 hearing. Defendant relies on King v. Superior Court,

supra, 107 Cal.App.4th 929, but that case is different in key

respects. In King, the defendant had uttered threats and

committed violence against a succession of appointed attorneys,

culminating in a hearing at which the trial court determined

that he had thereby forfeited his right to counsel. (Id. at pp. 934-

936.) The Court of Appeal found the trial court erred by allowing

the most recently appointed defense attorney, who had likewise

been threatened by the defendant, to continue representing the

defendant at the forfeiture hearing — but only because that

attorney “violated the duty of loyalty by offering evidence of

King’s other violent behavior, evidence . . . obtained in his

position as King’s attorney” and “actively argued against him.”

(Id. at pp. 950, 949.) In this case, by contrast, Hauser did not

disclose or volunteer any threats or misconduct by defendant,

nor did he disclose privileged information he acquired in the

course of the representation. To the contrary: Hauser

consistently represented defendant’s interests, despite

defendant’s hostility towards him. Even after defendant

repeatedly spit on counsel in court, Hauser successfully objected

to the proposal to bring defendant to the jury room in shackles.

Following the attack, Hauser sought to minimize what had

occurred and pledged that he could “represent Mr. Johnson with

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equal vigor as if this had never happened.”3 Because the trial

court had no reason or basis to conclude that Hauser was unable

to fulfill his duty of loyalty — and had no other indication that

Hauser’s ability to represent defendant was in any way

impaired — the trial court could reasonably conclude that no

actual conflict existed. (See People v. Roldan (2005) 35 Cal.4th

646, 675; cf. King, at p. 950.)

2. The decision to exclude defendant from the trial

The exclusion of a capital defendant from his own trial is

unusual, but not unprecedented. We have previously upheld

death judgments where the trial court excluded the defendant

from part or most of a trial because of the defendant’s disruption

of the proceedings. (See, e.g., People v. Banks (2014) 59 Cal.4th

1113, 1178-1181 [defendant was excluded from the entire

penalty trial]; People v. Welch (1999) 20 Cal.4th 701, 773

[defendant was excluded “on a number of occasions”]; People v.

Medina (1995) 11 Cal.4th 694, 735-740 [defendant was excluded

from voir dire, presentation of the evidence, counsel’s

3

Defendant contends that counsel acted against his

interests when counsel opined in court that defendant’s attack

and his other outbursts were “merely a tool to either delay the

trial or to eventually wind up defending himself, which I believe

is what his goal is.” But counsel’s statement was made at a

subsequent hearing, after the court had already decided to

exclude defendant from the trial. Moreover, Hauser made the

statement in the course of explaining why he was not declaring

a conflict with his client, despite the prosecutor’s intention to

use the assault as evidence in aggravation in a potential penalty

trial, and not to disparage defendant. Finally, Hauser’s

characterization merely echoed the finding the court itself had

made at the earlier hearing: “I suspect that [defendant’s

actions] were planned for one more time to try to disrupt the

proceedings and delay it.”

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arguments, and reading of the jury instructions].) A disruptive

defendant forfeits any constitutional and statutory rights to be

present at trial. (Medina, at p. 738.) In egregious

circumstances, that forfeiture may encompass the remainder of

the trial.

What justifies barring a defendant from the trial, after all,

is the defendant’s insistence on misconduct “so disorderly,

disruptive, and disrespectful of the court that his trial cannot be

carried on with him in the courtroom.” (Allen, supra, 397 U.S.

at p. 343.) Whether it makes sense to expect a defendant in a

given case, once removed from the trial, to actually abandon a

strategy of disruption and conform to courtroom decorum if

allowed to return depends to a large extent on nuanced

assessment of the severity and persistence of the disruptive

conduct. The trial court is best situated to evaluate the

defendant’s conduct and the likelihood of further disruption.

Which is why it makes sense for the decision to bar a defendant

from the remainder of a trial to rest within the broad discretion

of the trial court. (See People v. Welch, supra, 20 Cal.4th at p.

773 [“appellate courts must give considerable deference to the

trial court’s judgment as to when disruption has occurred or may

reasonably be anticipated”].)

The defendant in this case violently attacked his attorney,

in full view of the court and the prospective jurors. He did so

while wearing a stun belt meant to control him in case it was

needed. The attack was preceded by regular, repeated, and

vulgar disparagement of his attorney, including cursing and

spitting, as well as numerous epithets directed at the court and

other outbursts. At subsequent hearings, when defendant was

in the lockup adjacent to the courtroom, he continued his efforts

to disrupt the proceedings by banging or kicking the cell door.

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So by the time the trial court barred defendant from the

remainder of the trial during the October 19, 1988, hearing, it

had ample reason to believe that defendant’s desire to disrupt

and delay the proceedings would not abate: “I’m not going to

have him in this courtroom no matter what he promises,” since

any promise to behave “would be simply a subterfuge to gain

access to the courtroom and allow him to continue his offensive,

violent and outrageous conduct.”

Defendant faults the court for failing to warn him that an

assault against his attorney could specifically lead to his

permanent expulsion from the trial. We disagree. Defendant

was already aware that continued misconduct could result in his

removal, given that the trial court had removed him from the

courtroom based on his outbursts during his first trial. (See

People v. Sully (1991) 53 Cal.3d 1195, 1240; cf. People v. Medina,

supra, 11 Cal.4th at p. 731 [defendant’s outburst in a prior trial

in a different county justified shackling].) Defendant had no

statutory or constitutional right to an estimate of how long he

might be barred from the courtroom if his misconduct were to

escalate. After all, the duration of his removal from the

courtroom depended on the trial court’s assessment of whether

and when he would no longer pose a threat to the court or the

proceedings. In any event, defendant cites no authority

suggesting that a court must explicitly put a defendant on notice

that violence against an attorney — or anyone else in the

courtroom — could result in his removal. (See Com. v. Scionti

(Mass.App.Ct. 2012) 962 N.E.2d 190, 200 [upholding

defendant’s removal without a warning where the defendant

threatened violence if brought into the courtroom]; People v.

Staffney, supra, 468 N.W.2d at p. 240; People v. Wilkins¸ supra,

822 N.Y.S.2d at pp. 272-273.)

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The trial court in this case found that defendant posed a

continuing threat. Defendant’s conduct at trial leaves no doubt

about why the court made this decision. A court need not engage

in the empty ritual of periodically inquiring whether a

defendant is willing to correct his behavior once it has

reasonably determined that the defendant cannot be trusted to

do so. (See Com. v. Scionti, supra, 962 N.E.2d at p. 200 [“If, in

the alternative, she had ordered the defendant to be brought

into court to receive an express warning, the safety of the

defendant as well as court staff would have been at risk”].)

Defendant cites no authority to suggest that a trial court lacks

the power to deploy tools useful in confronting violent conduct.

Nor does he explain why the court is bound to offer a dangerous

defendant repeated — indeed, effectively unlimited —

opportunities to inflict physical injury on counsel or others in

the courtroom. (See People v. Majors (1998) 18 Cal.4th 385, 415

[“ ‘The trial court’s ability to remove a disruptive or potentially

disruptive defendant follows not only from section 1043,

subdivision (b)(1), but also from the trial court’s inherent power

to establish order in its courtroom’ ”].)

In any event, defendant repeatedly manifested his lack of

interest in the trial itself. He refused daily invitations to listen

to the proceedings,4 and demonstrated his unwillingness to

conform to courtroom decorum by his continued misbehavior.

On November 9, 1998, defendant attempted to spit on Hauser,

and three days later, he refused all contact with Hauser and said

4

The trial court declined to offer defendant a video feed of

the entire proceedings, observing that “we have no facilities for

doing that.” (Cf. People v. Mayham (2013) 212 Cal.App.4th 847,

856-857.)

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if given the chance, “he would spit all over Mr. Hauser again.”

Later in the trial, defendant reportedly stated that he should

have taken the opportunity in the jury assembly room to slit

counsel’s throat. And when the court conducted a video

simulation to determine whether defendant would follow the

ordinary rules for a witness’s examination by counsel, defendant

refused to follow the question-and-answer format. Instead, he

accused the court, the prosecutor, and defense counsel of illegal

conduct — including the presentation of false evidence, the

withholding of exculpatory evidence, and “a concerted effort to

intentionally dump me” — and was about to launch into

profanity when the court cut off the audio. Defendant’s

assertion that he could have been trusted to correct his behavior

is not supported by the record.

What defendant argues next is that the trial court should

have considered alternatives to excluding him from the

courtroom, such as allowing him to be present while bound and

gagged. Not once did defendant ask the court to consider this

alternative, so he has forfeited the claim. (See People v. Banks,

supra, 59 Cal.4th at p. 1181.) Even if the claim had been

preserved, we held in Banks that “a trial court does not commit

constitutional error when it opts to exclude a defendant from the

courtroom in response to ‘extreme and aggravated’ conduct,

even when options such as shackling are also available.” (Ibid.)

Indeed, because defendant’s assault on counsel had occurred

while he was wearing a stun belt, the trial court lacked

assurance that restraints would be effective. (See Allen, supra,

397 U.S. at p. 344; State v. Jones (Conn. 2007) 916 A.2d 17, 35-

36.)

Defendant’s final challenge to the court’s removal order is

a technical one. He contends the trial court overstepped its

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bounds by barring him before his trial had even begun. He relies

on section 1043, subdivision (b), which creates an exception to

the requirement that a defendant be personally present at the

trial only “after the trial has commenced in his presence.” (Cf.

Smith v. Mann (2d Cir. 1999) 173 F.3d 73, 76 [“nothing in the

Constitution prohibits a trial from being commenced in the

defendant’s absence so long as the defendant knowingly and

voluntarily waives his right to be present”].) He then points to

dicta in People v. Concepcion (2008) 45 Cal.4th 77, 80, footnote

4, where we observed in passing that commencement of trial

under section 1043 begins at least as early as jury selection.

Defendant reasons that because jury selection did not begin

until November 5, 1998, the trial court acted prematurely when

it barred him from the trial.

Defendant misunderstands the timeline. The parties

convened in the jury assembly room for jury selection on

September 17, 1998. The court would have proceeded to

consider hardships and pass out the general questionnaires, but

was disrupted by defendant’s attack on Hauser. When the court

discovered that the prospective jurors were irrevocably tainted

by defendant’s misconduct, it dismissed the venire. (See People

v. Silva (2001) 25 Cal.4th 345, 372-373; People v. Mayfield

(1997) 14 Cal.4th 668, 722, fn. 7.) Because it would take at least

three weeks to assemble another panel of 400 prospective jurors

and the prosecutor declared a scheduling conflict thereafter, the

trial court found good cause to continue the trial until

November. Consequently, the proceedings on November 5,

1998, were merely a continuation of the trial that had begun, for

purposes of section 1043, on September 17, 1998. (See People v.

Granderson (1998) 67 Cal.App.4th 703, 707.) In any event, the

evident purpose of section 1043’s requirement that trial have

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commenced in the defendant’s presence is to ensure that the

defendant is aware of the right to be present and that the trial

will continue in the defendant’s absence. (See People v. Ruiz

(2001) 92 Cal.App.4th 162, 168; accord, Taylor v. United States

(1973) 414 U.S. 17, 20.) The record shows that defendant was

assuredly aware of these things.

In short, the record supports the trial court’s finding that

defendant would not conform his conduct to the norms of a

criminal trial. We therefore find, under the unusual

circumstances presented, that the trial court did not err in

excluding defendant from the courtroom for the entirety of his

capital trial.

B. Defendant’s Forfeiture and Waiver of His Right

To Testify

Defendant challenges the trial court’s findings that he

forfeited his right to testify at the guilt phase and waived that

right at the penalty phase. The challenges lack merit.

1. Guilt phase

On November 17, 1998, during the guilt phase trial, the

court discussed preparations for defendant’s testimony.

Defendant would not be allowed in the courtroom because of the

security risks he posed, but would be allowed to testify “through

a live TV audio transmission setup” from a secure interview

room in the courthouse. Before granting defense counsel an

opportunity to confer with defendant, the court directed counsel

to tell his client “that he is to conform with the rules concerning

testimony as any other witness”; that “[h]e will not be allowed

to disregard such rules and use the opportunity to again attempt

to disrupt the proceedings, delay the trial, or otherwise attempt

to inject possible error into the proceedings”; and “that should

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he fail to comply with these rules, it may be necessary,

depending on the seriousness of his disruptions, to terminate

the audio-video arrangement entirely, in which event his

testimony will of course terminate.” Counsel reported back that

when asked whether he wanted to testify, defendant said he

would refuse to answer counsel’s questions. So the court asked

defendant, through the live video feed, whether he wanted to

testify. Defendant said that he did.

The court then reviewed the conditions for defendant’s

testimony: “You understand that if you testify, it’s going to be a

question and answer procedure. Mr. Hauser will ask the

questions, and then you’ll respond. [¶] Do you understand and

agree?” Defendant replied, “Oh yes, we understand it. We know

how the proceedings supposed to work, but it don’t seem to be

functioning well in this courthouse.” To emphasize the point,

the court reiterated that “[i]f we use this procedure tomorrow

morning, once again, it will be question and answer by the

lawyers; and you will simply follow the rules as any witness

would in any other trial. [¶] Do you understand how that

works?” The colloquy proceeded as follows:

“DEFENDANT JOHNSON: I think it’s already error been

injected into these proceedings. Lots of them. Lots of errors.

“THE COURT: Do you understand what I’m saying to you,

sir?

“DEFENDANT JOHNSON: I hear what you saying.

“THE COURT: All right. Now, in the event that you don’t

follow the rules, if you try to use the opportunity to do the things

I’ve just mentioned or engage in profanity, which you have done

that enough times, I will then — I have here a master switch in

front of me. I will kill both the audio and video portion. At that

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point in time, you will be given a chance to reconsider your

behavior.

“In the event that you don’t want to conform, or if you say

that you will and we reinstitute your testimony and you once

again violate the rules, I want you to know right now that I

would terminate any further testimony. You will have then

voluntarily given up your right to testify in this trial by your

own actions.

“Do you understand how this is going to work, sir?

“DEFENDANT JOHNSON: I understand y’all been

violating rules in there.

“When did y’all start following rules in there?

“THE COURT: Do you understand what I’m saying, Mr.

Johnson?

“DEFENDANT JOHNSON: I hear what you saying.

“THE COURT: Are you going to follow those rules?

“DEFENDANT JOHNSON: I’m going to do what I think

is best on my own behalf.

“You know, if I write the rules — I understand you trying

to set up criteria how you want me to operate.

“THE COURT: Do you understand what I said to you, sir?

“DEFENDANT JOHNSON: I understand what you would

like me to do.

“THE COURT: It’s not what I’d like you to do. It’s what

you will do, Mr. Johnson.

“DEFENDANT JOHNSON: I understand what you would

like me to do, and there is no need for further discussion. Let’s

wait until tomorrow and see what’s going to happen.”

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The court remained concerned whether defendant

understood the ground rules for his testimony, so it tried once

more:

“THE COURT: I want to know if you have any questions

about what the rules are.

“DEFENDANT JOHNSON: No. No. There ain’t no rules.

Everything open in the courtroom. It ain’t gonna get no rules

until we get some attention to what’s going on here.

“THE COURT: And will you be able to talk with Mr.

Hauser tomorrow?

“DEFENDANT JOHNSON: “It ain’t nothing to discuss

with us.

“THE COURT: Well, you understand he’s the one who is

going to be asking you the questions?”

“DEFENDANT JOHNSON: It doesn’t matter.

“THE COURT: Will you be able to answer his questions?

“DEFENDANT JOHNSON: It’s irrelevant. We’ll see

what goes on tomorrow. Let’s talk about it tomorrow.

“[¶] . . . . [¶]

“THE COURT: No, you listen to me once more. I don’t

want any questions about this. You will testify tomorrow and

follow the rules as any other witness. If you violate those rules,

you know right now I will terminate your testimony; and you

will never have an opportunity to testify before the jury.

“It’s your choice. You can testify or not testify. That’s how

it’s going to work.

“And you have a nice day, Mr. Johnson.

“DEFENDANT JOHNSON: You, too.”

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Following this colloquy, counsel and the court remained

concerned that defendant was not going to follow the rules.

Counsel, who was opposed to defendant’s decision to testify and

feared the effect of his potential misbehavior on the jury,

suggested “prior to him actually testifying, that we have a little

test run, out of the presence of the jury, just to see if he is going

to cooperate.” The court agreed to do so. The next morning, the

court made the following statement for the record: “Based on

his disruptive record and upon yesterday’s comments, ‘we’ll wait

and see what will happen,’ also based on Mr. Hauser’s request

for some sort of a test on how Mr. Johnson will behave in front

of this jury, and also based on my concern as to what sort of

damage, irreparable damage, Mr. Johnson might be able to

cause at this, the end of our second jury trial, I’m going to do the

following:

“The jury will not be present.

“The bailiffs will tell Mr. Johnson that he’s about to be on

the hookup.

“I will activate the TV audio system.

“I will then tell Mr. Hauser to call his next witness. He

will call Mr. Johnson.

“I will administer the oath. And I will then tell Mr.

Johnson that the attorneys will be questioning him.

“I’ll ask each attorney to introduce themselves by their

names so that he becomes familiar with the voice.

“And I will tell him then that Mr. Hauser is going to be

then questioning him as his attorney.

“And then, Mr. Hauser, I’ll ask you to pose the first

question to him, which would be what?

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Opinion of the Court by Cuéllar, J.

“MR. HAUSER: I’ll probably ask him where he was living

on the date of September 26th.

“THE COURT: Based on whatever happens at that point

in time, we’ll make the decision as to whether the jury is going

to be brought out and hear his testimony.”

The clerk activated the video feed. After counsel called

defendant, and defendant was sworn, the court asked counsel to

begin questioning defendant. The exchange proceeded as

follows:

“Q. Mr. Johnson, back on September 26th of 1996, where

were you living?

“A. First of all, I wish to greet the jury.

“Good morning to y’all.

“And I apologize for not being able to be present at my own

so-called trial, but it’s beyond my control.

“First of all, you do not represent my interests and never

have.

“And all three of you attorneys work together. Everything

you got going is totally illegal, and I’m totally opposed to it.

“Q. Is that where you live?

“THE COURT: Did you hear the question?

“THE WITNESS: Excuse me?

“Q. BY MR. HAUSER: Where do you live?

“A. You do not represent my interests and never have.

“What y’all doing is illegal.

“You have never tried to do nothing to benefit me.

“Y’all all working together.

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“I oppose what’s going on.

“I’m not illiterate, neither am I dyfunctional (sic). It

shouldn’t be conducted this way.

“This is reasonable doubt, ladies and gentlemen, what’s

going on in this trial.

“Q. So you don’t want to testify. Is that you’re saying?

“A. You do not represent my — I would appreciate if y’all

read that letter I filed to the court Monday as a form of protest

to what’s going on to the jury to let them know that I’m not fooled

or blind to what’s going on.

“This is a concerted effort to intentionally dump me in that

courtroom, ladies and gentlemen. Consider that.

“Q. Mr. Johnson, this is your chance. Now, are you going

to testify or not?

“A. You do not represent my interest and never have, Mr.

Hauser. I do not need to talk to you.

“Q. Does that mean ‘no’?

“A. You have not — what about the tapes and everything

y’all have to show that these witnesses was lying.

“Y’all knew they was lying and tried to withhold that

evidence. That’s discriminatory in nature, and what y’all doing

is a crime.

“Q. Are you going to answer my questions?

“A. Do you understand that you are committing a crime?

“You do not represent my interests and never have.

“THE COURT: All right. Mr. Johnson, I take it then by

your comments that you do not intend to follow the normal

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witness rules of question and answer, and you will continue to

make these kind of comments.

“Is that what you’re going to do?

“THE WITNESS: Yes, Judge Cheroske.

“THE COURT: Well, I have a little surprise for you, Mr.

Johnson. The jury is not present. This was a test [to] see what

kind of person you would be.

“You have proven by your conduct that you’re not going to

be able to testify in this case.

“THE WITNESS: That’s right.”

At that point, the court deactivated defendant’s audio

“because the profanity was about to begin” — and the trial judge

had already witnessed the depth and breadth of defendant’s

distinctive talents in this area. The court reiterated that

defendant had forfeited his right to testify by his conduct: “I

don’t know how we could have had any more conduct that would

have been disruptive to these proceedings than what we’ve just

witnessed.”

We agree with the trial court: defendant forfeited his right

to testify by his misconduct. The right to testify, like other

constitutional rights such as the right to be present or the right

to confront witnesses, can be forfeited by disorderly or

disruptive behavior that causes the defendant to be barred from

the courtroom. (People v. Hayes (1991) 229 Cal.App.3d 1226,

1233-1234; accord, U.S. v. Nunez (10th Cir. 1989) 877 F.2d 1475,

1478; People v. Menner (N.Y.App.Div. 2003) 769 N.Y.S.2d 569,

570; State v. Mosley (Tenn.Crim.App. 2005) 200 S.W.3d 624,

633-634; State v. Chapple (Wn. 2001) 36 P.3d 1025, 1033-1034;

State v. Anthony (Wis. 2015) 860 N.W.2d 10, 22-25.) We

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explained in part II.A., ante, that the trial court did not err in

excluding defendant from the trial.

In this case, though, the trial court did more than simply

rely on its prior determination that the trial could not proceed

in defendant’s presence. The trial court sought to accommodate

its substantial and documented security concerns with

defendant’s constitutional right to testify by proposing that

defendant testify via closed-circuit television. Defendant was

informed repeatedly his testimony would proceed in a question

and answer format. He was warned at length that his refusal

to comply with that (and other) courtroom procedures would

lead to termination of his testimony and forfeiture of his right to

testify. The court did not succeed in securing defendant’s

agreement to abide by these ground rules –– despite the court’s

best efforts. Instead of promising to behave, defendant candidly

admitted, “I’m going to do what I think is best on my own behalf”

and proposed everyone else “wait until tomorrow and see what’s

going to happen.” When the court tried to probe further into

defendant’s willingness to follow the rules, defendant shot back,

“There ain’t no rules.”

These responses proved unsettling to defense counsel, who

feared that defendant’s behavior would prejudice his chances

with the jury. They were also unsettling to the court, who feared

defendant was attempting to force a mistrial. Even though

defendant had already forfeited his right to appear at trial —

and even though defendant had failed to reassure the court that

he would cooperate if granted the chance to testify remotely

through video — the court agreed to offer defendant one more

chance to show himself capable of testifying in an appropriate

manner. It was defendant’s own counsel who suggested the

plan, which called for a dry run with the preliminaries of

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defendant’s testimony, outside the presence of the jury, to see

how defendant was going to behave. Defendant immediately

demonstrated his refusal to abide by the question and answer

format. He purported to offer unsupported legal conclusions,

referred to alleged facts not in evidence, and declined to actually

answer any questions — save the court’s inquiry whether

defendant intended to continue disregarding the question and

answer format and to continue offering improper and

inadmissible opinions about the proceedings. To that question,

defendant replied, “Yes, Judge Cheroske.” Together,

defendant’s actions impelled the trial court to conclude that

defendant had forfeited his right to testify by his misconduct.

The trial court did not err in this conclusion. (See State v.

Anthony, supra, 860 N.W.2d at pp. 24-29.) Defendant’s claim to

the contrary –– that the trial court “should have given [him]

another warning and chance to conform his behavior” –– ignores

the numerous warnings and chances he had already been given.

Defendant complains next that the trial court

“misrepresented” whether the jury was present, thereby

improperly inducing him to waive his Fifth Amendment

privilege against self-incrimination. We find that defendant

suffered no Fifth Amendment violation. None of the questions

at the Evidence Code section 402 hearing sought answers that

might tend to incriminate him (see Hoffman v. United States

(1951) 341 U.S. 479, 486-487), nor were any of his nonresponsive

statements ever used against him in the trial (see Maldonado v.

Superior Court (2012) 53 Cal.4th 1112, 1128). We likewise reject

defendant’s claim that defendant was denied due process by the

trial court’s failure to inform him of the jury’s absence. Had the

court allowed defendant to begin his testimony in front of the

jury, the events all but certainly would have unfolded exactly as

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they did: Defendant would have offered incompetent and

unsupported legal conclusions, referred to alleged facts not in

evidence, and declined to actually answer any questions — save

the one in which he manifested his unwillingness to abide by the

question and answer format — and the court would have

terminated his testimony. The only difference is that the jury

would have been witnesses to his disruptive conduct. It was not

fundamentally unfair to prevent defendant from prejudicing his

defense in this manner.

Nor can we embrace defendant’s contention that new

counsel ought to have been appointed because Hauser

undermined his interests by cooperating with the “dry run”

procedure. Hauser was legitimately concerned that defendant’s

antics would prejudice him in the jury’s eyes — and defendant’s

scattershot accusations at the Evidence Code section 402

hearing, had they occurred before the jury, might well have done

so. Hauser’s efforts to protect defendant’s right to a fair trial

cannot reasonably be characterized as a breach of his duty of

loyalty.

We disagree, too, that the trial court had an obligation to

suggest that defendant’s testimony from the prior trial be

offered in lieu of defendant’s live testimony. Defendant forfeited

any claim about his prior testimony by failing to offer it in

evidence below. (See Evid. Code, § 354.) Moreover, whether

defendant’s prior testimony would have been helpful to

defendant was a question of strategy reserved to the defense.

Even assuming that defendant’s prior testimony would have

been admissible, it was not a choice the trial court was required

to make or speculate about.

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2. Penalty phase

Near the end of the penalty phase, the prosecution asked

whether the parties should revisit the issue of defendant’s

potential testimony via closed-circuit television. Counsel

reiterated his desire that defendant not testify, and the court

wondered whether there would be “the same type of reaction

that we had from him when he thought a jury was here once

before.” The next day, the prosecutor asked for “some kind of

statement, either on the record or through Mr. Hauser, with Mr.

Johnson saying he would rather not testify or something to that

effect.” The court responded that “the only thing I can do is what

I’ve done throughout the whole trial, is have the deputy take Mr.

Hauser down to the holding area and see if . . . Mr. Johnson will

come out of his cell and go into the interview room so he could

communicate.” The court refused to require Mr. Hauser “to

approach Mr. Johnson in a noninterviewing area where there is

[no] glass to protect him from whatever evils Mr. Johnson has

intended for Mr. Hauser. I don’t think he needs to go through

that that many times.” (The court was evidently referring to

defendant’s regular practice of spitting on his attorney.)

During a pause in the proceedings, defendant was asked

whether he would be willing to talk with counsel about

testifying. According to the bailiff, defendant told the sergeant

that he did not want “anything to do with Mr. Hauser or

anything to do with the trial.” The trial court concluded, “Well,

that answers that then.”

We find no error. Because the record contained nothing to

suggest that defendant disagreed with counsel’s decision not to

call him as a witness, the trial court had no obligation to advise

defendant of his right to testify or elicit an express statement

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confirming counsel’s waiver of that right. (See People v.

Bradford (1997) 15 Cal.4th 1229, 1332-1333.)

C. Denial of Requests for New Counsel

On numerous occasions during defendant’s first trial, the

court facilitated discussions between defendant and Hauser

about their relationship and encouraged defendant to talk with

and listen to counsel. On a couple of those occasions, defendant

requested new counsel be appointed on the ground that Hauser’s

performance was inadequate or that he and Hauser were in

irreconcilable conflict, but those motions were denied. (See

People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) Defendant

concedes that any error in failing to remove Hauser in those

instances “was arguably rendered moot by the mistrial,” and he

does not challenge those rulings here. He claims instead that

the trial court erred in denying what he characterizes as three

separate Marsden motions following the declaration of a

mistrial: on July 7, 1998; on July 14, 1998; and on September

17, 1998, when he attacked Hauser in the jury assembly room.

We find no error because the record does not demonstrate that

defendant ever made a Marsden motion on those dates.

The legal principles governing a Marsden motion are well

settled. “ ‘ “When a defendant seeks to discharge his appointed

counsel and substitute another attorney, and asserts inadequate

representation, the trial court must permit the defendant to

explain the basis of his contention and to relate specific

instances of the attorney’s inadequate performance.” ’ ” (People

v. Vines (2011) 51 Cal.4th 830, 878, italics added; cf. People v.

Wharton (1991) 53 Cal.3d 522, 580 [“When the basis of a

defendant’s dissatisfaction with counsel is set forth in a letter of

sufficient detail, however, a full-blown hearing is not

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required”].) But the trial court has no sua sponte duty to inquire

whether the defendant’s desire to substitute another attorney is

based on inadequate representation or an irreconcilable conflict.

(See People v. Sanchez (2011) 53 Cal.4th 80, 89-90 [“a trial court

is obligated to conduct a Marsden hearing on whether to

discharge counsel for all purposes and appoint new counsel

when a criminal defendant indicates after conviction a desire to

withdraw his plea on the ground that his current counsel

provided ineffective assistance [and] there is ‘at least some clear

indication by defendant’ . . . that defendant ‘wants a substitute

attorney’ ” (italics added)].) So when a defendant asks for new

counsel, a trial court’s duty to undertake the Marsden inquiry

“arises ‘only when the defendant asserts directly or by

implication that his counsel’s performance has been so

inadequate as to deny him his constitutional right to effective

counsel.’ ” (People v. Leonard (2000) 78 Cal.App.4th 776, 787;

see People v. Martinez (2009) 47 Cal.4th 399, 421 [“we agree

with the decisions of the Courts of Appeal holding specifically

that the trial court is not required to conduct a Marsden hearing

on its own motion” (citing Leonard)].)

Defendant did not assert inadequate performance, nor did

he claim an irreconcilable conflict existed, as the basis for

requesting new counsel directly or by implication at the

proceedings on July 7 or July 14, 1998. At the hearing on July

7, which began with defendant spitting on his attorney and

included his repeated outbursts and copious profanity and

insults directed at the court, defendant said “Fuck you” and then

said, “I ask that I be allowed another attorney.” When the court

responded, “I am not getting you another attorney,” defendant

replied, “I’ll get me one.” At another status conference the

following week, defendant interrupted the court to announce he

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“would like a continuance and another counsel. Under the Sixth

Amendment —.” The court said, “Denied,” without specifying

whether it was denying the motion on the ground that defendant

had interrupted the court or was denying it as insufficient. In

any event, though defendant did in the latter instance refer to a

constitutional provision, he still failed to link his request to

counsel’s performance at that point or any earlier point in the

proceedings.

Nor do we discern a valid request for substitute counsel on

September 17, 1998, when defendant attacked Hauser in the

jury assembly room. While defendant was being restrained by

the deputies, defendant said, “That mother fucker. [¶] I don’t

want him. [¶] Mother fucker. [¶] Fucking ho (sic).” He also

added: “I don’t want you. [¶] I do not want this man. He do

not represent my interest, ladies and gentlemen. [¶] I’m

qualified to represent myself. [¶] This man has intentionally

dumped me in trial.” It does not appear that defendant was

addressing the court; rather, he directed his comments at

counsel and at the 400 prospective jurors in the room. Even if

construed as a motion directed at the court, defendant never

requested the appointment of substitute counsel. (See People v.

Clark (1992) 3 Cal.4th 41, 103 (Clark) [“He never asked for

appointment of substitute counsel, but only to discharge

Keith”].)

Defendant, moreover, was well aware of how to trigger the

Marsden inquiry. On May 13, 1998, during his first trial,

defendant said, “I would ask for a Marsden,” noting the “obvious

conflict between Mr. Hauser and myself.” On May 26, 1998,

defendant complained of “irreceiveable [sic] differences. And

nothing I can do could change this. [¶] I’d like him removed if

possible” — although defendant conceded the very next day that

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Hauser was competent. Defendant’s comments in the three

proceedings he has identified on appeal, by contrast, merely

evidenced his displeasure with Hauser. (See Clark, supra, 3

Cal.4th at p. 103 [“Defendant’s diatribes about Keith did not . . .

constitute a Marsden motion”].) So even assuming defendant’s

violent conduct did not relieve the court of its duty to consider

his comments, nothing he said triggered the court’s obligation to

undertake a Marsden inquiry.

We likewise reject defendant’s claim that the trial court

ought to have appointed new counsel on its own —

notwithstanding defendant’s failure to request new counsel or

to justify such an appointment — on the ground that defendant

could no longer get along with his attorney. (See People v. Gay

(1990) 221 Cal.App.3d 1065, 1070 [“unless requested to do so by

[the] defendant, the trial court has no statutory or inherent

power to substitute appointed counsel, sua sponte, based on the

judge’s subjective opinion the attorney is incompetent”].) Nor

may a defendant argue on appeal that the trial court ought to

have discharged counsel for reasons that the defendant failed to

make known to the trial court at the time of the proceedings.

(See People v. Abilez (2007) 41 Cal.4th 472, 489.) A court would

risk interfering with the attorney-client relationship if its

responsibility to substitute counsel could be triggered by such a

meager showing. (See People v. Martinez, supra, 47 Cal.4th at

p. 420.)

Moreover, a defendant may not force the substitution of

counsel by manufacturing a conflict or a breakdown in the

relationship through his own conduct. (People v. Hardy (1992)

2 Cal.4th 86, 138; cf. Daniels v. Woodford (9th Cir. 2005) 428

F.3d 1181, 1197 [noting that “the conflict was not one created by

Daniels or by his counsel”].) Here, it was defendant who

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repeatedly spit on and unilaterally refused to cooperate or even

speak with counsel — and who ultimately assaulted counsel in

open court. A defendant cannot take such steps and then rely

on that same behavior to assert an irreconcilable conflict with

counsel. (See People v. Crandell (1988) 46 Cal.3d 833, 860.)

As it turned out, defendant’s behavior at this trial

confirmed the observation made by the trial court prior to the

first trial, in addressing defendant’s criticism of his attorney: “I

have carefully observed this particular subject matter. And it is

my considered opinion, after an extensive evaluation, that your

only purpose is to try to build up a ground for appeal if you

should be convicted in this case. And that is your entire purpose

for carrying on this way. You have a competent, effective

counsel. You have even acknowledged he was competent. I

think you are simply trying to play games with this court. And

I want that placed clearly in the record because I carefully

observed that. And that is my considered evaluation of the

matter. This is nothing more than gamesmanship by your

trying to develop a ground or grounds for appellate lawyers and

nothing else. And there is no substance, basis, or truth to it.”

D. Trial Court’s Failure To Commence

Competency Proceedings

Relying largely on the disruptive behavior outlined above,

defendant contends the trial court erred in failing sua sponte to

suspend the proceedings and hold a competency hearing. We

conclude that the trial court did not abuse its discretion by

failing to declare a doubt as to whether defendant was

competent to stand trial.

A defendant is incompetent to stand trial when he or she

lacks the ability to consult with defense counsel with a

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reasonable degree of rational understanding or a rational and

factual understanding of the proceedings. (Dusky v. United

States (1960) 362 U.S. 402, 402; People v. Mickel (2016) 2 Cal.5th

181, 195; see § 1367, subd. (a).) A trial judge must suspend

proceedings and hold a 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.” (People v. Rogers (2006)

39 Cal.4th 826, 847; see § 1368.) Unless the record contains

substantial evidence of present mental incompetence, we review

a trial court’s failure to initiate the competency inquiry only for

abuse of discretion. (Mickel, at p. 195.)

As defendant concedes, at no point did any mental health

expert ever opine that defendant was unable to assist his

attorney or understand the proceedings against him. Nor did

counsel or the court ever suggest that was so. To the contrary:

counsel believed that defendant was not incompetent. So

defendant points instead to his repeated outbursts in court, his

rocky relationship with counsel, and his eventual attack on

counsel in the jury room. He asks us to infer that this

misconduct must have been triggered by a mental disorder so

severe that it disabled him from assisting counsel or aiding in

his own defense. The record belies defendant’s proffered

inference.

Defendant’s misconduct in court and his antipathy

towards counsel began well before “the date the trial court

barred [him] from the courtroom for the duration of his retrial”

— which is the date defendant identifies as the trigger for his

competency claim. In an earlier prosecution for a different

crime, defendant was so disruptive that he was removed from

the courtroom. He was again removed from the courtroom

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before the first trial in this case. He repeatedly cursed both the

court and his attorney and made threats against them. In

addition to spitting on his attorney, he declared that he and his

attorney were in irreconcilable conflict and several times

demanded, without any basis, that new counsel be appointed.

All of this misconduct — which prefigured the more aggravated

misconduct that ultimately led to defendant’s removal from the

courtroom at his second trial — occurred at a time when

defendant was nonetheless able to cooperate with counsel and,

as defendant concedes on appeal, “testify effectively.” And all of

it occurred prior to the point at which defendant contends the

trial court should have declared a doubt about his competency.

Defendant’s disruptive and self-defeating behavior

coexisted with his ability to assist counsel and participate

effectively at the first trial. This fact strongly supports the

conclusion that defendant’s continued misconduct during the

second trial was not evidence of incompetence. Rather, it was

evidence that — in the words of one of the judges who “carefully

observed this particular subject matter” at the first trial — he

was “simply trying to play games with this court” and his “only

purpose [was] to try to build up a ground for appeal if [he] should

be convicted in this case.” At the second trial, Judge Cheroske

similarly believed that defendant wanted to return to the

courtroom “for the sole purpose of engaging in more disruptive

behavior.” Because the trial judge is in the best position to

assess the cause of such misconduct, we generally give “great

deference” to the judge’s decision whether to hold a competency

hearing. (People v. Marshall (1997) 15 Cal.4th 1, 33.)

Defendant’s unwillingness to cooperate with counsel does

not demonstrate incompetence. (See People v. Mendoza (2016)

62 Cal.4th 856, 879.) Nor were defendant’s courtroom outbursts

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or other disruptive conduct necessarily an indicator that he was

unable to understand the proceedings or assist in his defense.

(See People v. Mai (2013) 57 Cal.4th 986, 1033.) And defendant’s

belief — even if sincere — that counsel was “in league with the

prosecution” does not establish that the trial court abused its

discretion in failing to order a competency hearing, either.

(People v. Welch, supra, 20 Cal.4th at p. 742.)

Defendant directs our attention to a handful of federal

appellate cases. We can distinguish them all. In each of them,

evidence of the defendant’s outbursts and disturbances was

merely one factor among many that led to the conclusion that

the trial court erred in failing to inquire into the defendant’s

competence. (See U.S. v. Cornejo-Sandoval (10th Cir. 2009) 564

F.3d 1225, 1235 [“certain extreme behavioral manifestations

may, along with other factors, raise reasonable cause to doubt a

defendant’s competency”].) In Torres v. Prunty (9th Cir. 2000)

223 F.3d 1103, for example, a psychologist opined that Torres

had a “severe” delusional disorder and “registered ‘one of the

most disturbed profiles . . . seen by this evaluator.’ ” (Id. at p.

1105.) After Torres withdrew his insanity plea over counsel’s

objection, counsel advised the court that Torres’s paranoid

delusions had expanded to include an elaborate conspiracy

involving himself and the court. But, unlike here, counsel stated

that he consequently had a doubt as to Torres’s competency. (Id.

at pp. 1106, 1108.) True: There is a slight similarity between

the conspiracy described in Torres and defendant’s asserted

belief that counsel, the court, and the prosecutor were

conspiring against him. But Torres had already been diagnosed

as suffering from a severe psychiatric disorder, and the

psychologist had in addition reported that Torres “was ‘fully

credible and not seeking consciously to deceive in any way.’ ”

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(Id. at p. 1106; see id. at p. 1109 [“In light of the previous medical

evaluation . . . , it was unreasonable for the court not to make a

more complete inquiry into the nature of defense counsel’s

statement . . . .” (italics added)]; Maxwell v. Roe (9th Cir. 2010)

606 F.3d 561, 565 [the defendant “had a history of mental

illness, frequently refused to take his prescribed antipsychotic

medications, was unable to verbally or physically control

himself in the courtroom, and exhibited increasingly paranoid

and psychotic behavior that impaired his communication with

defense counsel and reasoning regarding his defense”]; id. at p.

573 [the trial court failed to examine psychological reports at the

time of trial stating that the defendant “ ‘is unable to function

at this time because of his poor mental state’ ” and “ ‘is not

oriented to time or place’ ”]; U.S. v. Williams (10th Cir. 1997)

113 F.3d 1155, 1160 [the defendant, who had a history of drug

addiction, was alternately taking or refusing to take a

psychotropic drug during trial, and was crying uncontrollably,

“misapprehended her attorney’s role”; in addition, she

“cryptically answered” whether her medication interfered with

her ability to communicate with counsel, and counsel wondered

aloud “whether his client understood the proceedings”]; Lafferty

v. Cook (10th Cir. 1991) 949 F.2d 1546, 1552-1556 [finding error

where the four examiners employed by the state all agreed that

the defendant was incompetent and the trial court

misunderstood the applicable legal standard].)

By contrast, no evidence in the record here supports the

conclusion that defendant’s disruptive behavior was the product

of a mental disorder. What ample evidence suggests instead is

that he was malingering: Defendant selectively refused to

cooperate with counsel before his first trial — and claimed that

counsel and the court were part of a conspiracy against him —

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before abruptly shifting strategies, cooperating with counsel,

taking the stand in his own defense, and achieving the favorable

outcome of a hung jury. (See People v. Rogers, supra, 39 Cal.4th

at p. 849.) Because the record showed that defendant could

communicate with and assist counsel when it suited him, the

trial court was not obligated to institute competency

proceedings when defendant resumed and escalated his

oppositional behavior at the second trial.

Finally, we disagree that the trial court was obligated to

suspend proceedings based on Dr. Cherkas’s testimony at the

penalty phase about defendant’s “thinking disorder.” The

expert did not testify that defendant was unable to understand

the proceedings or rationally assist in his defense. Nor did the

expert’s testimony, when considered with the aggregate

evidence before the court, raise a reasonable doubt as to

defendant’s competence to stand trial. (See People v. Ghobrial

(2018) 5 Cal.5th 250, 268-274; People v. Halvorsen (2007) 42

Cal.4th 379, 403.)

E. Trial Court’s Failure To Discharge Counsel

Because of Alleged Conflicts

Defendant contends that his attorney labored under three

actual conflicts of interest, any one of which obligated the trial

court to discharge Hauser and appoint him new counsel. We

disagree.

The state and federal Constitutions guarantee a criminal

defendant the right to representation free from “conflicts of

interest that may compromise the attorney’s loyalty to the client

and impair counsel’s efforts on the client’s behalf.” (People v.

Mai, supra, 57 Cal.4th at p. 1009.) To establish a denial of that

right, the defendant must show that counsel labored under an

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actual conflict that adversely affected counsel’s performance and

that, absent counsel’s deficiencies, there is a reasonable

probability the result would have been different. (People v.

Doolin (2009) 45 Cal.4th 390, 417.) In determining whether an

actual conflict adversely affected counsel’s performance, we ask

“ ‘whether counsel “pulled his punches,” i.e., whether counsel

failed to represent defendant as vigorously as he might have,

had there been no conflict. [Citation.] In undertaking such an

inquiry, we are . . . bound by the record. But where a conflict of

interest causes an attorney not to do something, the record may

not reflect such an omission. We must therefore examine the

record to determine (i) whether arguments or actions omitted

would likely have been made by counsel who did not have a

conflict of interest, and (ii) whether there may have been a

tactical reason (other than the asserted conflict of interest) that

might have caused any such omission.’ ” (Id. at p. 418.)

Defendant claims Hauser suffered from three disabling

conflicts. He fails to demonstrate that any actual conflict

existed.

The first alleged conflict arose from defendant’s attack on

Hauser and subsequent threats against Hauser’s family. Yet

the court inquired about this potential conflict, and Hauser

noted that he had represented difficult clients before. Hauser

then assured the court the attack would not impair his ability to

represent defendant: “I honestly believe that I can represent

Mr. Johnson with equal vigor as if this had never happened.” In

concluding that no conflict existed, the trial court could

reasonably have credited Hauser’s representations. (See People

v. Hardy, supra, 2 Cal.4th at p. 137.)

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The second alleged conflict occurred when the prosecutor

decided to rely on evidence of the assault as aggravating

evidence at the penalty phase. Defendant claims that Hauser

ought to have realized that he needed to withdraw as counsel so

that he could testify as a witness to the assault on defendant’s

behalf. But an attorney must withdraw only when he or she

knows or should know that he or she is or ought to be a material

witness. (See People v. Dunkle (2005) 36 Cal.4th 861, 915.)

Hauser’s testimony was not necessary to establish the assault

itself — and, indeed, the prosecution promised not to call Hauser

to testify. Defendant suggests that Hauser, if called as a

witness, might have testified that he did not fear defendant or

that defendant was perhaps overcome by the emotion of

beginning the trial at the time of the attack. But the latter is

raw speculation: There is no evidence in the record that

defendant was in emotional turmoil at the time he attacked

Hauser, or that Hauser believed he was. As to the former, it is

possible that Hauser, if called, might have testified that he did

not fear defendant. But he could also reasonably believe that

appearing as defendant’s counsel, notwithstanding the attack,

was a more effective way of making the same point. Indeed,

Hauser told the court, “I can’t think of a better advocate for Mr.

Johnson than the victim of his own misdeed.” And Hauser also

sought to minimize the attack in his argument to the jury.

Defendant alleges the existence of a third conflict. This

arose, according to defendant, from Hauser’s acquiescence to the

court’s ruling requiring him –– if he remained defendant’s

counsel –– to refrain from arguing, “in the form of testimony or

any other manner,” certain mitigating aspects concerning the

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assault.5 Defendant contends that Hauser thereby “sold” the

right to argue mitigating circumstances relating to the assault

“for the lucrative opportunity to continue to represent

[defendant].” On this record, though, there is no indication that

Hauser saw his discharge as a “threat to [his] livelihood[], nor is

there the slightest hint that thoughts of compensation, rather

than sincere concern about protecting defendant’s interest in

avoiding a death judgment,” influenced Hauser’s decision to

remain as counsel. (People v. Kirkpatrick (1994) 7 Cal.4th 988,

1009-1010, disapproved on another ground in People v. Doolin,

supra, 45 Cal.4th at p. 421, fn. 22.) Indeed, despite the court’s

ruling, Hauser showed the jury that he was able to continue as

defendant’s advocate. He then argued that the incident was not

a serious factor in aggravation and demonstrated merely

defendant’s frustration and mental impairment. And, as

explained in the preceding paragraph, Hauser would not have

been a material witness for defendant at the penalty phase —

so his inability to testify or otherwise offer more specific

comment about the incident did not impair his ability to

represent defendant.

Even if defendant had established a conflict, he has not

shown that the conflict adversely affected counsel’s

performance. To the contrary, counsel’s decisions may have

5

The court singled out “one, your lack of fear of Mr.

Johnson; two, the fact that you have elected to continue to

represent Mr. Johnson despite the prior incidents; or, three, to

refer to the attack in any way in argument such as the defendant

must have just been overcome by emotion, having sat before the

400 people and realizing his jury trial was about to start, or it

was his attempt to delay the proceedings and/or get another

lawyer, or anything like that.”

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been the result of legitimate strategic and tactical choices. (See

People v. Perez (2018) 4 Cal.5th 421, 437.) For example, Hauser

could reasonably have believed that any objection to defendant’s

exclusion from the trial would have been futile; that defendant

would have been unable to behave in front of the jury, to his

detriment, if called to testify; that defendant’s testimony from

the prior trial, if read into the record, would not have been

helpful or credible; and that he could be more effective as

defendant’s advocate rather than as a witness on what was only

a minor piece of the evidence in aggravation in comparison to

the murders themselves. (See People v. Doolin, supra, 45

Cal.4th at p. 418.)

Finally, defendant was not denied any constitutional or

statutory right when the court inquired into Hauser’s potential

conflict in defendant’s absence. As discussed earlier, defendant

forfeited his right to be in the courtroom by his own misconduct.

Defendant could have listened to the proceedings with a

speaker, but he repeatedly declined to do so. Defendant cannot

fairly complain that he lacked input into the discussions

surrounding counsel’s alleged conflicts, when it was defendant’s

own decision to separate himself from the proceedings that

deprived him of the opportunity.

F. Huggins’s Volunteered Statement That

Defendant “Had Already Beat Two Cases Like

This”

Hightower’s half-brother, Robert Huggins, was the only

witness who testified at trial that defendant shot Faggins and

Hightower. Huggins did not report to the police what he had

seen until a few months after the murders, when he was

arrested on an unrelated charge. Near the end of Huggins’s

direct examination, the prosecutor asked why Huggins had

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allegedly told his girlfriend and his stepfather what he saw but

did not tell police. Huggins replied, “ ’Cause he [defendant] was

still running around on the streets.” When the prosecutor asked

why Huggins was worried about that, Huggins explained, “He

had already beat two cases like this already.”

The defense immediately objected to this last response

and, at sidebar, asked for a mistrial. Hauser added that

Huggins’s statement would also have prejudicial effects at any

penalty trial. The trial court denied the request for a mistrial

and proposed to admonish the jury to disregard Huggins’s

response. The trial court rejected codefendant’s request to voir

dire the jury to determine their ability to disregard the

comment, reasoning that such questioning “would be creating a

bigger problem for Mr. Hauser’s client.” Hauser agreed.

Because some new witnesses had just arrived at court, the trial

court took them out of order. Later that same day, after those

witnesses had testified, the trial court reminded the jury about

the pending objection to Huggins’s testimony. The court stated

that it was sustaining the objection and striking the response:

“So you will disregard that answer.”6 The last remaining

question and answer, the court reminded the jury, was

“something to the effect of why hadn’t he contacted the police,

and he said because C.J. was still on the streets.”

6

Immediately prior to this admonition, the trial court

referred to its earlier instruction that “whenever I order

anything stricken by way of testimony, it’s not in evidence; and

you’re not to consider it for any purpose. As a matter of fact,

you’re to treat it as though you never even heard it.” The jury

collectively responded that it remembered that instruction and

would have no difficulty following it.

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Defendant contends the court’s remedy was insufficient to

dispel the prejudice from Huggins’s response. He believes the

trial court instead should have granted a mistrial. A court

should grant a mistrial “ ‘only when a party’s chances of

receiving a fair trial have been irreparably damaged.’ ” (People

v. Peoples (2016) 62 Cal.4th 718, 802.) This generally occurs

when “ ‘ “ ‘the court is apprised of prejudice that it judges

incurable by admonition or instruction.’ ” ’ ” (People v. Harris

(2013) 57 Cal.4th 804, 848.) We review the trial court’s refusal

to grant a mistrial for abuse of discretion. (People v. Williams

(2016) 1 Cal.5th 1166, 1187.)

No abuse of discretion appears. Huggins testified, without

objection, that his reluctance to implicate defendant earlier was

due to the circumstance that defendant “was still running

around on the streets.” The unstated (but self-evident)

implication was that Huggins was afraid that defendant — who

had already killed Faggins and Hightower — might retaliate if

Huggins were to snitch to police, and that defendant was in a

position to carry out such retaliation. Huggins continued to rely

on his fear of defendant, even after defendant had been arrested,

to explain why he declined to inculpate defendant at the

preliminary hearing: Huggins had been placed in a lockup cell

with defendant and codefendant on a regular basis, at which

time defendant had asked him, in front of codefendant and two

dozen other inmates, “why’d I [Huggins] say all the stuff I said

about him.” Consequently, the evidence that Huggins feared

defendant was quite strong, even leaving aside the reference to

defendant having beaten “two cases like this already.” (See

People v. Williams (1997) 16 Cal.4th 153, 211-212.)

Moreover, Huggins’s volunteered statement was brief and

unaccompanied by anything that might have tended to

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corroborate it or otherwise demonstrate its truth. Nor did the

prosecutor mention it in the guilt or penalty phases. At most,

the jury might have concluded that Huggins believed what he

said. But that inference could easily have been — and was —

dispelled by the admonition the jury received. To the extent the

jury — despite the instruction to disregard Huggins’s statement

— might have relied on it to infer that Huggins had been

reluctant to testify against defendant out of fear, it was

cumulative of the other evidence that Huggins was afraid.

Accordingly, the potential prejudice at both the guilt and

penalty phases from Huggins’s volunteered statement was not

of the sort that could not be cured by an admonition or

instruction. (See People v. Williams, supra, 16 Cal.4th at p. 211

[rejecting a claim of incurable prejudice where a witness

testified she had received telephone calls “ ‘that if I testified I

would be killed,’ ” the statement was stricken, and the jury

admonished]; People v. Osband (1996) 13 Cal.4th 622, 675.)

G. Rochelle Johnson’s Hearsay Statement That

“C.J. Didn’t Have To Kill Him”

Codefendant’s girlfriend Rochelle Johnson gave

conflicting statements as to whether she had been at the party

at the time of the shooting and whether she knew who

committed the shootings. She told Detective Vena at the scene

that the music stopped when Hightower left the party, that

everybody went outside, and that she saw Hightower lying in

the front seat of his girlfriend’s vehicle only after he had been

shot. At trial, though, she testified that the party was still going

on when she left around 11:30 p.m., that after she got home she

heard a lot of screaming, and that someone came to her door

seeking her nursing skills because of an “accident.” She then

ran out and found Hightower sitting in a car, “full of blood.”

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Rochelle told Detective Vena that she did not know who

the shooter was. But her brother, Leonard Greer, testified that

she had told him as she was leaving the scene, “They didn’t have

to kill him. They didn’t have to kill him,” and then revised it,

over defendant’s hearsay objection, as “C.J. didn’t have to kill

him.” Defendant renews his hearsay objection here. We find

that the statement was admissible as a prior inconsistent

statement. (Evid. Code, § 1235.)

An out-of-court statement by a witness that is inconsistent

with his or her trial testimony is admissible to establish the

truth of the matter asserted, so long as the witness has been

given an opportunity while testifying to explain or deny the

statement or is still subject to recall. (Evid. Code, § 1235; see

People v. Chism (2014) 58 Cal.4th 1266, 1294.) Rochelle’s

statement to her brother near the scene of the murder that “C.J.

didn’t have to kill him” was inconsistent with her trial testimony

that she never told anyone that defendant was involved in the

shootings and that she did not see Greer on her way back home

after the shootings or talk to him about what had happened.

Defendant argues that even if the hearsay statement was

inconsistent with Rochelle’s trial testimony, it should not have

been admitted because there was insufficient evidence that she

had personal knowledge of the shooter’s identity. (See Evid.

Code, §§ 403, subd. (a)(2) [proponent of evidence has the burden

of establishing a witness’s personal knowledge], 702; see

generally People v. Cortez (2016) 63 Cal.4th 101, 123-124

[“California courts have extended this personal knowledge

requirement to statements of hearsay declarants”].) A trial

court may exclude a witness’s testimony for lack of knowledge

“ ‘only if no jury could reasonably find that [the witness] has

such knowledge.’ ” (People v. Anderson (2001) 25 Cal.4th 543,

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573.) Once that low threshold is satisfied, “ ‘it is for the jury to

decide whether the witness’s perceptions and recollections are

credible.’ ” (Cortez, at p. 124.) Although the evidence supporting

an inference of Rochelle’s personal knowledge may have been

thin, the trial court did not abuse its discretion in admitting her

hearsay statement.

Rochelle’s statements about whether she was present at

the time of the shooting were vague and inconsistent. She

testified that she arrived at the party around 7:30 p.m. It was

general knowledge that Faggins was in danger, which was why

“[e]verybody at the party was trying to get [him] to leave.”

Faggins, Hightower, and Lewis left the party around the same

time. Rochelle told Detective Vena that at that point, the music

stopped and “everybody went outside.” According to Newton,

defendant and Betton walked down to the sidewalk “where

everybody else at” to attack and then shoot Faggins. Rochelle

told Vena she ran down to 99th Place from the party to find

Hightower had been shot. At trial, though, Rochelle provided a

different account. She denied being at the party at the time of

the shooting and claimed instead that she had been at home,

two buildings away, in her bathroom, until somebody knocked

on her door and told her what had happened. She did not recall

giving Vena a different account of her whereabouts.

Other witnesses, however, placed Rochelle right at the

murder scene. Lewis reportedly told Huggins that Rochelle was

“near” the car at the time Hightower was shot. Lewis also told

him that Rochelle “knew more about the incident than she was

talking about.” This evidence, if credited, supported an

inference that Rochelle’s statement about the shooting was

based on personal knowledge.

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Greer’s testimony likewise tended to show that she was at

the murder scene. Greer testified that he was walking towards

Rochelle’s apartment when he heard gunfire and ran to see what

the shooting was about. It took him less than a minute to notice

the crowd gathered at 99th Place. About 30 seconds to a minute

after defendant and Betton ran off, he saw Rochelle walking

towards him from the murder scene. She was crying and

covered in blood. When she said, “They didn’t have to kill him.

C.J. didn’t have to kill him,” the two embraced. Now perhaps it

was possible that someone left the scene immediately after the

shootings, ran to Rochelle’s apartment, got her attention and

explained what happened — and Rochelle then came out of her

bathroom, made it to the murder scene, began and completed an

unsuccessful attempt to administer CPR to Hightower,

collapsed on the sidewalk in tears for several minutes, and

started walking back home — all within the brief period it took

Greer to approach the scene after hearing gunshots. But the

record did not compel that conclusion. A reasonable juror could

instead have concluded that Rochelle went outside along with

everyone else at the party, witnessed the murders, offered aid

immediately to Hightower, and met up with Greer as she left

the scene.

It is true that each of these alleged eyewitnesses suffered

from substantial attacks on their credibility. Greer was

impeached with numerous felonies. He lied to police about a

number of facts, including whether he had been at the party,

whether he witnessed the murders, and what motivated the

murders. Huggins had given inconsistent accounts to police and

under oath, in addition to being impeached with his prior

misdemeanor spousal abuse. And at trial, both Lewis and

Newton repudiated their prior statements. But it was for the

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jury to decide which account to believe. (See People v. Zilbauer

(1955) 44 Cal.2d 43, 48-49.) A reasonable juror could have

credited the testimony tending to show that Rochelle had

witnessed the murders. Accordingly, defendant’s challenge to

the admission of Rochelle’s hearsay statement must fail.

H. Asserted Exclusion of Evidence That Tyrone

Newton Expected a Benefit from Making

Statements Inculpating Defendant

Tyrone Newton told police in a videotaped interview that

defendant planned and committed the murders of Faggins and

Hightower. At trial, though, Newton insisted that his

videotaped statement, which was taken while he was in custody

for cocaine possession, was a lie. According to Newton’s trial

testimony, an officer promised to “drop” the cocaine charge in

exchange for information about the murders. Newton claimed

not to know anything about the murders, but had just “followed

along” with the story provided to him by police during the time

he was in custody for cocaine possession. Newton explained

that, on prior occasions, he had offered information to the police

in exchange for release from custody.

Detective Waters had conducted the videotaped interview.

She denied promising Newton anything in exchange for his

statements.

To corroborate Newton’s expectation of favorable

treatment in exchange for statements about the murders,

codefendant’s counsel pointed out that Newton had been

released a short time after the videotaped interview and was

never prosecuted for cocaine possession. Counsel also elicited

admissions from Detective Waters that, during their interview,

Newton said something to the effect of “the more y’all get me off

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y’all line, the happier I will be” and talked about the fact that he

had previously been an informant for a detective named Barber.

But when counsel sought to follow up on this line of questioning

— by asking Detective Waters whether Newton had said “that

he supplied information to Detective Barber on other occasions”

— the trial court sustained the People’s relevance objection. At

sidebar, codefendant’s counsel explained that Newton’s history

of involvement with Detective Barber would support the

inference that Newton was hoping to make a deal with Detective

Waters: “In the tape, Your Honor, Mr. Newton tells this

detective that he provided Detective Barber with information

whenever he wanted to and that Detective Barber, on the other

hand, would help him. And he talks about the fact that he got

caught with a lot of drugs on one occasion and how Detective

Barber helps him. [¶] So clearly it goes to the fact that Mr.

Newton is talking to this detective — at least the inference is

that he’s hoping to get some kind of deal, because he was in

custody at the time that he spoke to this detective.” Defendant’s

counsel joined in the offer of proof. The trial court suggested

that this new line of inquiry would be confusing to the jury,

because it referred to a part of the videotape they had not seen

and for which they had not been given a transcript. When

codefendant’s counsel said he intended to call Newton as his own

witness to address those parts of the interview, the court

responded, “Well, for right now, the objection is going to be

sustained.” Codefendant’s counsel did subsequently recall

Newton to the stand — and played portions of the videotape —

yet did not further explore Newton’s relationship with Detective

Barber or his expectation of similar favors from Detective

Waters.

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Defendant claims the trial court erred in barring the

defense from offering certain evidence of Newton’s motivation in

making the videotaped statement and thereby violated his Sixth

Amendment rights. But it is not clear the trial court actually

prevented either defendant from presenting the desired excerpts

of the interview. True, the trial court expressed skepticism

about piecemeal presentation of new videotaped excerpts during

Detective Waters’s testimony, when the videotape had not been

cued to the relevant portion and a transcript had not been

provided to the jury. Based on that concern, the court sustained

the objection “for right now.” Codefendant then offered

additional videotaped excerpts (and a transcript) when Newton

was recalled to the stand, but never tried to include the excerpts

concerning Detective Barber. By failing to press for a final

ruling, defendant forfeited the claim. (See People v. Holloway

(2004) 33 Cal.4th 96, 133; People v. Samaniego (2009) 172

Cal.App.4th 1148, 1181.)

In any event, the trial court did not abuse its discretion in

excluding the evidence described in codefendant’s offer of proof.

Additional evidence of Newton’s history with Detective Barber

would have been cumulative of what the defense had already

elicited from Newton and Detective Waters. (See People v.

Cunningham (2001) 25 Cal.4th 926, 999.) And by confirming

that Newton told her “the more y’all get me off y’all line, the

happier I will be,” Waters’s testimony tended to show that

Newton was indeed interested in making a deal with her. So

defendant already had what he needed for “making real to the

jury that the atmosphere under which Newton’s statements

were made was a barter situation.” Indeed, the prosecutor

conceded in argument that Newton “probably was expecting

something.” Because the jury had a full understanding of

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Newton’s potential motivation, the trial court’s ruling did not

violate defendant’s constitutional or statutory rights. (See

People v. Quartermain (1997) 16 Cal.4th 600, 624.)

I. Error in Failing To Instruct the Jury To View

Defendant’s Out-of-court Oral Statements with

Caution

Newton claimed during his videotaped police interview

that he was present when defendant “was talking about killing”

Faggins and Hightower. According to Newton, defendant

announced, “[W]e’re getting rid of all the snitches” and, pointing

at the victims, said, “[W]e can do them right here and right now.”

At trial, Newton repudiated his videotaped statements and

testified that he had been elsewhere at the time of the shootings.

It was left to the jury to decide which version of Newton’s

testimony to believe and whether defendant ever made these

statements.

Until recently, we had imposed on trial courts a sua sponte

duty to instruct the jury that a defendant’s oral admissions

should be viewed with caution. (See People v. Wilson (2008) 43

Cal.4th 1, 19; CALJIC No. 2.71.7.) In People v. Diaz (2015) 60

Cal.4th 1176 (Diaz), though, we determined that the instruction

need be given only on request. (Id. at p. 1189.) Because jurors

must now be instructed — and were instructed here — with the

“general instructions on witness credibility” (id. at p. 1189; see

CALJIC No. 2.20), the cautionary instruction for oral

admissions no longer qualified as “one of the general principles

of law upon which a court is required to instruct the jury in the

absence of a request” (Diaz, at p. 1189). We also concluded that

defendants should be allowed to decide whether the instruction

would be in their interests, rather than require the trial judge

to give the instruction in every case, since such oral statements

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may sometimes include “both incriminating and exculpatory

elements.” (Id. at p. 1193.) In rejecting the People’s argument

that the instruction never be given, even on request, we

observed that “the [cautionary] instruction may be useful to the

defense in highlighting for the jury the need for care and caution

in evaluating evidence of the defendant’s statements.” (Id. at p.

1189.)

The trial court here failed to instruct the jury that it

should consider defendant’s oral statements with caution. The

Attorney General concedes that the trial court erred in failing to

instruct the jury in accordance with CALJIC No. 2.71.77 or some

equivalent instruction. Yet his concession predated our decision

in Diaz, which declared that the instruction need be given only

on request. We therefore consider whether our Diaz decision,

which was issued well after the trial in this case, should be given

retroactive effect — and whether defendant was therefore

obligated to request a cautionary instruction if he desired one.

We conclude the answer to both questions is no. The law in

effect at the time of trial was clear: A trial court had the duty

to instruct the jury sua sponte to view a defendant’s oral

admissions with caution. The required instruction dated from

1872 and was codified in the Code of Civil Procedure, former

section 2061, subdivision 4. (See Diaz, supra, 60 Cal.4th at p.

1184.) Although the Legislature repealed that provision when

7

At the time of trial, CALJIC No. 2.71.7, as given, provided:

“Evidence has been received from which you may find that an

oral statement of intent, plan, and motive was made by the

defendant before the offense with which he is charged was

committed. [¶] It is for you to decide whether the statement

was made by the defendant. [¶] Evidence of an oral statement

ought to be viewed with caution.”

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it adopted the Evidence Code in 1965, we subsequently held that

the repeal had no effect on a court’s obligation to give the

instruction contained in the former statute. (People v. Beagle

(1972) 6 Cal.3d 441, 455, fn. 4.) And this court reaffirmed a trial

court’s sua sponte duty to give the cautionary instruction just a

year before the trial in this case. (See People v. Carpenter (1997)

15 Cal.4th 312, 392-393.) Because defendant would have had no

reason to anticipate that the burden was on him to request the

instruction, we conclude that the Diaz rule should be applied

only prospectively. (See People v. Simon (2001) 25 Cal.4th 1082,

1108 [new rule requiring a defendant to object to venue before

trial “should be applied only prospectively”].) Accordingly, we

accept the Attorney General’s concession that the trial court

erred under state law in failing to give the instruction. (See

Diaz, supra, 60 Cal.4th at p. 1195 [“We apply the standard for

state law error . . . . Failure to give the cautionary instruction

is not a violation of federal due process . . . .” (citation omitted)].)

But ultimately, the error was harmless. The jury was fully

aware of its duty to resolve whether defendant made these

statements. After viewing Newton’s videotaped statement

purporting to describe what defendant said, the jury saw

Newton testify under oath that he had falsely inculpated

defendant and Betton in an effort to secure a favorable

resolution of a pending drug charge. Moreover, Newton’s

videotaped statement was riddled with factual errors: He told

Waters that the murders occurred during the daytime, around

4:00 or 5:00 p.m., on September 25, 1996 — but they actually

occurred around 10:00 p.m., well after dark, the next day. He

said the shootings took place on 97th Street, but they actually

happened on 99th Place. He said that defendant shot both

victims with the same gun — but the forensic analysis showed

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they had been shot with different guns. He said that the shooter

reached inside the car to shoot Hightower, but that was

contradicted by the medical examiner and by Detective Vena.

At trial, Newton attributed the discrepancies in his videotaped

statement to his failure to attend the party. Accordingly, before

the jury could credit Newton’s videotaped account of defendant’s

statements, it necessarily had to decide which version of

Newton’s account should be believed.

So we do not dispute that the jury needed to determine

whether defendant made the statements described by Newton.

But the other jury instructions made that reasonably apparent,

and alerted the jury of the need to carefully consider Newton’s

account. In particular, the jury was instructed about the

significance of a witness’s prior consistent and inconsistent

statements (CALJIC No. 2.13), discrepancies in a witness’s

testimony or between the witness’s testimony and that of others

(CALJIC No. 2.21.1), a witness’s willfully false statement in

material part (CALJIC No. 2.21.2), conflicting testimony

(CALJIC No. 2.22), the believability of a witness convicted of a

felony (CALJIC No. 2.23), and a witness’s credibility in general

(CALJIC No. 2.20). Under these circumstances, it is not

reasonably likely or possible that the error in omitting a

cautionary instruction affected the outcome at the guilt or

penalty phases. (See Diaz, supra, 60 Cal.4th at pp. 1196-1197;

People v. Dickey (2005) 35 Cal.4th 884, 906-907.)

J. Challenge to the Instruction That Defendant

Voluntarily Absented Himself from the

Proceedings

The trial court instructed the venire not to consider

defendant’s absence from the trial: “[T]he defendant Johnson

will not be present for these proceedings. The court is

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instructing [] that you are not to speculate as to the reasons for

his absence, nor is this a matter which in any way can affect you

or your verdict in this case.” No one raised a hand in response

to the court’s inquiry whether anyone would be unable to follow

this instruction. At the end of trial, the court instructed the jury

that defendant “has voluntarily absented himself from these

proceedings. This is a matter which must not in any way affect

you in this case. [¶] In your deliberations, do not discuss or

consider this subject. It must not in any way affect your verdicts

or findings you may be asked to make in connection with your

verdicts.” The trial court overruled the defense objection to the

word “voluntarily,” reasoning that “it’s been his choice on a daily

basis to never even listen to this case” and that “he, by his

conduct, waived his right to testify” and to be present in court.

Defendant renews his claim that the word “voluntarily”

injected an untrue and unnecessary concept into the instruction.

He relies on the trial court’s acknowledgement that defendant

probably would want to be present in the courtroom. We need

not decide whether a defendant who knowingly and voluntarily

disrupts the proceedings such that the trial cannot continue in

his presence has voluntarily absented himself. (But see

Maxwell v. Roe, supra, 606 F.3d at p. 570; U.S. v. Hemsi (2d Cir.

1990) 901 F.2d 293, 296.) We find instead that even if the word

should have been omitted, the jury did not construe the

instruction to his detriment. The jurors were instructed — twice

— that defendant’s absence must not “in any way” affect their

consideration of the case or their verdicts. The jury was also

warned not to consider or discuss the topic in its deliberations.

We presume the jury followed those instructions. (See People v.

Young (2005) 34 Cal.4th 1149, 1214.)

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We also reject defendant’s claim that the court’s

instruction to disregard defendant’s absence was undermined by

the standard flight instruction (CALJIC No. 2.52), which, as

given, provided: “The flight of a person immediately after the

commission of a crime or after he’s accused of a crime is not

sufficient in itself to establish his guilt, but is a fact which, if

proved, may be considered by you in the light of all other proved

facts in deciding whether a defendant is guilty or not guilty. The

weight to which this circumstance is entitled is a matter for you

to decide.” (Italics added.) Defendant proposes that the jury, in

reliance on the italicized language and his voluntary absence

from trial, may have inferred (1) that he fled to escape trial, and

(2) that they could consider that flight in deciding his guilt. But

there was no evidence that defendant fled after being accused —

nor did the prosecutor make any such argument to the jury. So

any claim that the jury might have thought he fled would be

entirely speculative. After all, the jury would have understood

that it could consider such flight only “if proved” — and it was

not proved here.

Defendant is correct that the italicized phrase in CALJIC

No. 2.52 was unnecessary in this case and could have been

deleted. But the jury was instructed to “[d]isregard any

instruction which applies to facts determined by you not to exist”

and warned “not [to] conclude that because an instruction has

been given that I’m expressing an opinion as to the facts.” So

there was little risk that the jury misapplied the instruction to

defendant’s detriment. (See People v. Barnett (1998) 17 Cal.4th

1044, 1153-1154; People v. Carrera (1989) 49 Cal.3d 291, 314.)

Commonwealth v. Muckle (Mass.App.Ct. 2003) 797 N.E.2d

456, on which defendant relies to suggest that the standard

instruction may lead a jury to infer flight from the defendant’s

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absence in some circumstances, is distinguishable. In that case,

the defendant failed to appear at trial following the second day’s

lunch break. (Id. at p. 459.) The trial court gave the standard

instruction on flight for the sole purpose of enabling the

prosecution to argue that his absence from the trial “reflected a

consciousness of guilt” — even though the evidence before the

jury did not establish the voluntariness of the defendant’s

absence or any other type of flight. (Id. at p. 461; cf. People v.

Snyder (1976) 56 Cal.App.3d 195, 199 [upholding the flight

instruction where the defendant, who was free on bail,

absconded after the first day of trial].) In fact, the Muckle court

determined that “the consciousness of guilt instruction should

not have been given at all.” (Muckle, at p. 462.) Here, by

contrast, the flight instruction was justified by evidence that

defendant fled the murder scene: Greer testified that he saw

defendant and codefendant running from the area where the

murders occurred. Moreover, the prosecution in this case never

argued that defendant’s absence from the trial constituted flight

or reflected a consciousness of guilt, and the jury was instructed

not to consider defendant’s absence from trial “in any way.” We

therefore see no reasonable likelihood that the jury considered

defendant’s absence from trial as evidence of his guilt.

K. Failure To Instruct the Jury That It Could

Consider Huggins’s Misdemeanor Conduct in

Evaluating His Credibility

At trial, Huggins admitted he had been convicted of

misdemeanor spousal abuse in 1997. The trial court instructed

the jury in accordance with CALJIC No. 2.20 that “[i]n

determining the believability of a witness, you may consider

anything that has a tendency to prove or disprove the

truthfulness of the testimony, including, but not limited to . . . a

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witness’s prior conviction of a felony.” But the court did not

append the standard language allowing the jury also to consider

“[p]ast criminal conduct of a witness amounting to a

misdemeanor.” (CALJIC No. 2.20 (6th ed. 1996).)

Even assuming that the trial court had a sua sponte duty

to include the reference to misdemeanor conduct (see People v.

Contreras (2013) 58 Cal.4th 123, 157), the instructions, viewed

as a whole, nonetheless allowed the jury to consider any

evidence of Huggins’s moral turpitude, including his

misdemeanor spousal abuse. CALJIC No. 2.20, quoted above,

instructed the jury to consider everything that has a bearing on

a witness’s credibility, and its list of suggested factors explicitly

stated it was not exhaustive. (See People v. Horning (2004) 34

Cal.4th 871, 911.) So it is not reasonably likely that the jury

believed it was precluded from considering Huggins’s

misdemeanor conduct in evaluating his credibility.

L. Instruction Concerning Juror Misconduct

(CALJIC Former No. 17.41.1)

The trial court instructed the jury that “[t]he integrity of

a trial requires that jurors at all times during their deliberations

conduct themselves as required by these instructions.

Accordingly, should it occur that any juror refuses to deliberate

or expresses an intention to disregard the law or to decide the

case based on penalty or punishment or any other improper

basis, it is the obligation of the other jurors to immediately

advise the court of the situation.” (CALJIC former No. 17.41.1)

Although we disapproved of this instruction as an exercise of our

supervisory power in People v. Engelman (2002) 28 Cal.4th 436,

we acknowledged that the instruction does not infringe on a

defendant’s right to a jury trial, a unanimous verdict, or due

process. (Id. at pp. 439-440.) Defendant cites nothing in the

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record indicating that the instruction nonetheless affected the

deliberations in the guilt or penalty phases, nor does he offer a

persuasive reason to reconsider our conclusion in Engelman.

(See People v. Banks, supra, 59 Cal.4th at p. 1171; People v.

Brown (2004) 33 Cal.4th 382, 400-401.) Accordingly, we reject

the claim.

M. Instructions Concerning Reasonable Doubt

Defendant contends that certain instructions — CALJIC

Nos. 2.01, 2.02, and 8.83.1 — undermined the requirement of

proof beyond a reasonable doubt, and that certain other

instructions — CALJIC Nos. 2.21.2, 2.22, 2.27, 2.51, and 8.20 —

individually and collectively diluted the reasonable doubt

standard. Defendant acknowledges that we have repeatedly

rejected similar challenges. (See People v. Cage (2015) 62

Cal.4th 256, 286; People v. Friend (2009) 47 Cal.4th 1, 53.) We

reject his claim too.

N. Judicial Bias

Defendant contends that the trial court was biased against

him. As evidence, he submits a “grab bag” of the court’s rulings.

Yet defendant never objected to the vast majority of these

rulings — and not once on the ground of bias — nor did he ever

move to disqualify the court on the ground of bias. A defendant

may not go to trial before a judge, betting on a favorable result

and failing to raise objections of bias, and then argue on appeal

that the judge was biased. (People v. Johnson (2015) 60 Cal.4th

966, 978-979, quoting People v. Rodriguez (2014) 58 Cal.4th 587,

626.) So we deem the claim of judicial bias to be forfeited. (See

Johnson, at pp. 978-979; Rodriguez, at p. 626; People v. Farley

(2009) 46 Cal.4th 1053, 1110; People v. Guerra (2006) 37 Cal.4th

1067, 1111, overruled on another ground in People v. Rundle

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(2008) 43 Cal.4th 76, 151.)8 Even if the court’s rulings were

erroneous — a question we do not reach — it would not in itself

establish that the court was biased. (See People v. Pearson

(2013) 56 Cal.4th 393, 447.) We likewise note that defendant’s

willingness to let the entire trial pass without articulating an

appropriate objection “strongly suggests” his claim is without

merit. (Guerra, at p. 1112.)

O. Penalty Phase Instructions

The trial court declined to give defendant’s requested

instruction informing the jury that it “was permitted to consider

pity, sympathy or mercy for the defendant in deciding whether

to give life without parole or death.” The court pointed out that

CALJIC No. 8.85 adequately covered the topic. Factor (k) in

that instruction, as it was given in this case, directed the jury to

consider “[a]ny other circumstance which extenuates the gravity

of the crime . . . and any sympathetic or other aspect of the

defendant’s character or record that the defendant offers as a

basis for a sentence less than death, whether or not related to

the offense for which he is on trial.” Accordingly, the trial court

did not err. (See People v. Ervine (2009) 47 Cal.4th 745, 801;

People v. Berryman (1993) 6 Cal.4th 1048, 1098.)

The court also denied defendant’s request to instruct the

jury that “the sentence of death is to be considered a worse

sentence than that of life without the possibility of parole, even

though you may personally disagree.” As we have previously

held, the other jury instructions, particularly CALJIC No. 8.88,

as well as the penalty trial itself make clear that death is the

8

Defendant was well aware of the procedure to disqualify a

judge for bias. He had filed a motion to disqualify a different

judge prior to his first trial, but the motion was denied.

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most severe penalty. (See People v. Contreras, supra, 58 Cal.4th

at p. 170.) Once again, the trial court did not err.

P. Cumulative Error

Defendant contends that the cumulative effect of the

errors in this case was so prejudicial as to require reversal of the

judgment. But the only fact finder-related issues we have

resolved on harmless error grounds are the trial court’s failure

to instruct the jury to view Newton’s account of defendant’s out-

of-court statements with caution, and its passing assertion that

defendant had “voluntarily absented” himself in the course of

instructing the jury not to allow his absence to affect their

decisionmaking in any way. Neither of these errors or potential

errors, nor their cumulative effect, warrants reversal. (See

People v. Perez, supra, 4 Cal.5th at p. 466.) Nor does the trial

court’s asserted error in considering defendant’s threats against

Hauser and his family in deciding whether to exclude defendant

from the courtroom.

Q. California’s Death Penalty Statute

Defendant articulates several challenges to the

constitutionality of California’s capital sentencing scheme, but

concedes these have each been “consistently rejected” by this

court. Defendant’s arguments do not persuade us to reconsider

our precedent. (People v. Winbush (2017) 2 Cal.5th 402, 488.)

The state’s death penalty scheme does not violate the federal

Constitution by failing to adequately narrow the class of

offenders eligible for the death penalty (see, e.g., Winbush, at

p. 488); apply a limiting construction to section 190.3, factor (a)

(see, e.g., People v. Bennett (2009) 45 Cal.4th 577, 630-631);

require jurors to find aggravating factors (other than § 190.3,

factor (b) or (c) evidence) beyond a reasonable doubt (see, e.g.,

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People v. Rangel (2016) 62 Cal.4th 1192, 1235); assign the

burden of proof to the prosecution or inform the jury there was

no burden of proof (see, e.g., Bennett, at pp. 631-632); require

jurors to find unadjudicated criminal activity or other

aggravating factors unanimously (see, e.g., Winbush, at p. 489;

see also People v. Thompson (2016) 1 Cal.5th 1043, 1130); define

what it means for the aggravating factors to be “so substantial”

in comparison to the mitigating factors (Thompson, at p. 1128);

instruct the jury to select the “appropriate” penalty (People v.

Farley, supra, 46 Cal.4th at p. 1133), to return a verdict of life if

the mitigating factors outweighed the aggravating factors (see,

e.g. People v. Carrington (2009) 47 Cal.4th 145, 199), and to

presume that the appropriate penalty is life (see, e.g., People v.

Henriquez (2017) 4 Cal.5th 1, 46); instruct the jury that there

was no burden of proof as to mitigating factors and that such

factors need not be found unanimously (see, e.g., Winbush, at p.

490); require written findings from the jury as to aggravating

and mitigating factors (see, e.g., ibid.); or require either

“intercase proportionality review” or “the disparate sentence

review that is afforded under the determinate sentence law”

(People v. Williams, supra, 1 Cal.5th at p. 1205). Nor did the

trial court err by instructing the jury about the aggravating and

mitigating factors using a unitary list (see, e.g., People v. Myles

(2012) 53 Cal.4th 1181, 1222), by using the word “extreme” in

CALJIC No. 8.85 (see, e.g., Myles, at p. 1223); or by telling jurors

to consider section 190.3 factors “if applicable” (see, e.g., People

v. Maury (2003) 30 Cal.4th 342, 439).

Defendant also concedes that we have repeatedly held that

certain procedural distinctions between capital and noncapital

sentences are sufficiently justified (see, e.g., People v. Virgil

(2011) 51 Cal.4th 1210, 1290 [“ ‘[C]apital and noncapital

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defendants are not similarly situated and therefore may be

treated differently without violating constitutional guarantees

of equal protection of the laws’ ”]), and that arguments based on

international law along the lines of what defendant advances in

this case are not a basis to invalidate death sentences that are

lawful under domestic law. (See, e.g., People v. Jennings (2010)

50 Cal.4th 616, 690.) We do the same today.

III.

We affirm the judgment in its entirety.

CUÉLLAR, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

RAYE, J.*

*

Administrative Presiding Justice of the Court of Appeal,

Third Appellate District, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

77

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Johnson

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S075727

Date Filed: December 27, 2018

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: John J. Cheroske

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointment by the Supreme

Court, Joseph E. Chabot, Mai Linh Spencer and Nina Wilder, Deputy State Public Defenders, for

Defendant and Appellant.

Edmund G. Brown, Jr., and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler,

Chief Assistant Attorneys General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys

General, Sharlene A. Honnaka, Jaime L. Fuster and Marc A. Kohm, Deputy Attorneys General, for

Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Nina Wilder

Deputy State Public Defender

1111 Broadway, 10th Floor

Oakland, CA 94607

(510) 267-3300

Marc A. Kohm

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6175