People v. Frederickson

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE

Plaintiff and Respondent,

v.

DANIEL CARL FREDERICKSON,

Defendant and Appellant.

S067392

Orange County Superior Court

96CF1713

February 3, 2020

Justice Chin authored the opinion of the Court, in which Chief

Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,

Kruger, and Groban concurred.

Justice Liu filed a concurring opinion.

PEOPLE v. FREDERICKSON

S067392

Opinion of the Court by Chin, J.

A jury convicted defendant, Daniel Carl Frederickson, of

the first degree murder of Scott Wilson. (Pen. Code,1

§ 187, subd. (a).) It found true the special circumstance

allegation that defendant committed the murder while engaged

in the commission of the attempted robbery (§ 190.2, subd.

(a)(l7)(i)), and it also found true that defendant personally used

a firearm while committing the crime (§§ 1203.06, subd. (a)(1),

12022.5, subd. (a)). Following a sanity trial, the jury found

defendant was sane at the time of the crimes. After a penalty

trial, the jury returned a verdict of death, and the trial court

imposed a judgment of death. This appeal is automatic.

We strike an improperly imposed restitution fine and

affirm the judgment in all other respects.

I. FACTUAL BACKGROUND

On June 13, 1996, defendant walked into a home

improvement store and shot the store manager once in the head,

killing him. Defendant represented himself at trial with the

assistance of advisory counsel.

1

All further undesignated statutory references are to this

code.

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A. Guilt Phase

1. Prosecution Case

On June 13, 1996, 30-year-old Scott Wilson was working

as a customer service manager at the HomeBase home

improvement store in Santa Ana. The store was crowded due to

a relocation sale. Around 11:30 a.m., cashier Maricela Saucedo

asked Wilson to make change for her to give to a customer.

Wilson walked to the store’s safe, which was located behind the

customer service area. Saucedo turned back to her customer.

Within seconds, she heard a gunshot. She turned and saw

defendant waving his gun while running out of the store.

Saucedo saw Wilson lying bleeding on the ground, holding 10

five-dollar bills in his hand.

Cashier Susan Bernal saw Wilson walking toward the

customer service area and a man following him. Wilson did not

argue with anyone and did not call out for help. Bernal saw the

man shoot Wilson in the head at close range and then run out of

the store.

Loss prevention employee Christopher Rodriguez saw

defendant run out of the store carrying what appeared to be a

silver revolver. Rodriguez followed defendant outside to an

alleyway. The man entered the passenger side of a white van,

which then drove away. Rodriguez memorized the license plate

number and provided it to the police.

Santa Ana police officers arrived at HomeBase within a

few minutes of the shooting. Officer Ronald Dryva was on the

scene for two to three hours interviewing witnesses. During

that time, defendant called and spoke to an employee.

Defendant did not identify himself by name. The employee

handed the phone to Dryva. Defendant, who believed he was

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PEOPLE v. FREDERICKSON,

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still speaking with the employee, told Dryva, “I’ve never killed

or shot anyone before. This is stupid. That is what I do for a

living. Do you understand?” Defendant continued, “You need to

tell your employees that money is not worth getting killed over.”

Dryva asked defendant why he “pull[ed] the trigger.”

Defendant replied, “Because I was flustrated [sic]. He didn’t do

what I told him. Do you understand?” Defendant explained that

he followed Wilson to the safe. “While I pointed the gun at him

and told him to put the money in the bag, he just started

counting the money. I told him not to count the fucking money.

I told him to put the money in the box. He just closed the safe

and started walking away. The man continued — continued to

say [that] he didn’t believe I was serious. I got mad, flustrated

[sic], so I shot him.” Defendant told Dryva he would “probably”

turn himself in that night.

The next day, June 14, 1996, police officers conducted

surveillance outside defendant’s residence. In the driveway,

officers observed a white van matching the description

Rodriguez had given. Approximately three hours after

beginning their surveillance, officers observed the van, driven

by defendant, pull out of the driveway. An officer ordered

defendant to stop and exit the vehicle. Officers arrested him and

searched his residence, a camper located on his grandparents’

property. They found a .32-caliber revolver containing five live

rounds and one empty round.

Santa Ana police investigators Phillip Lozano and Mark

Steen interviewed defendant shortly after his arrest on June 14,

1996. Steen advised him of his Miranda rights. (Miranda v.

Arizona (1966) 384 U.S. 436 (Miranda).) Defendant

acknowledged he understood his rights and agreed to speak with

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the officers. The prosecution played an audiotape recording of

the interview for the jury. Defendant admitted he had been

committing robberies for nearly 15 years and that he walked

into the HomeBase on June 13 with “a game plan.” Defendant

first looked around to “get a feel for the place” and to identify

the manager. After he identified Wilson as the manager, he

waited until Wilson needed to retrieve change for a customer.

He followed Wilson to the safe and said, “Excuse me?” When

Wilson looked up, defendant said, “Can you put that money in

this box?” Wilson ignored defendant and began counting five-

dollar bills. Defendant showed Wilson part of his gun, and

Wilson closed the safe door and stood up. Defendant said that

“the next thing I knew, you know, [the gun] was at his temple.”

He expected Wilson to hand over the money and was surprised

and “pissed off” that Wilson refused. After firing the shot, he

ran out of the store and into his van.

Defendant explained that he called the HomeBase store

approximately one hour later and asked to speak with a

manager. Crying, he told the officers, “I just laid into him. I

told him, ‘You son of a bitch. That fucker didn’t need to die.’ . . .

I just told him man. He ought to make his fucking life mission

to instruct all of his employees of the proper procedures. Just

giving the money up, and that fucker died protecting [the

money].” He said he was “just tired of . . . being broke all the

time” and “just got frustrated with life and shit, and said, well,

fuck it man, if I get caught, you know, I’ll go back in for about

two or three years and, you know, . . . get out and try it again

later.”

The following day, newspaper reporter Marla Jo Fisher

interviewed defendant in jail. Defendant admitted that he was

attempting to rob the store and shot Wilson during the attempt.

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He explained that Wilson did not hand over the money, and after

Wilson shut the safe door, defendant shot him. According to

Fisher, defendant thought “Wilson was brave but stupid. He

admired Wilson’s courage but thought [Wilson] was foolish for

defying him and that he should have complied with his request

for money.” He blamed HomeBase management for failing to

train their managers to hand over the money if they were

robbed.

On July 25, 1996, defendant sent Officer Lozano a letter

asking to speak with the investigators again. Lozano and Steen

interviewed defendant at the jail on August 12. Defendant

explained that he had “held back some info” regarding

accomplices. He stated that he got the gun from his “associate”

John McCanns. McCanns met defendant in January or

February of 1996 and, at some point, moved into defendant’s

camper. McCanns and defendant discussed the robbery

beforehand, and after the murder, McCanns took the spent shell

casing.

Dr. Richard Fukomoto, the pathologist who performed the

autopsy on Wilson’s body, testified that Wilson died from a

single gunshot wound to the head. He opined that the barrel of

the gun was six to twelve inches from the wound when the gun

discharged.

2. Defense Case

Defendant represented himself during the guilt phase. He

called as a witness clinical psychologist Dr. Martha Rogers, who

had evaluated defendant regarding his sanity at the time of the

offense. Dr. Rogers met with defendant for almost 15 hours and

reviewed defendant’s juvenile records and prior psychological

testing records. Dr. Rogers found no neurological injury or

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PEOPLE v. FREDERICKSON,

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impairment, and no loss of cognitive function. She found him to

be “a pretty high functioning individual.” She noted in her

report that defendant “most likely has not had a memory lapse

or loss of functioning such that he did not know or understand

his behavior was wrong or illegal as he claims.”

The defense also called psychologist Dr. Roberto Flores de

Apodaca. Dr. Flores interviewed defendant for approximately

four hours and reviewed several relevant records. Dr. Flores did

not conduct any clinical testing, although he reviewed reports

from testing previously conducted. He opined that defendant

suffered from a personality disorder that expressed itself with

narcissistic and antisocial features. He concluded that no

psychiatric condition prevented defendant from knowing the

difference between right and wrong, and that defendant was not

insane.

Attorney Wayne Dapser testified that he was defendant’s

mentor through an organization called Volunteers in Parole.

Dapser explained that he was struck by defendant’s high degree

of optimism, but there were also times when defendant got very

depressed. Defendant often told Dapser that he turned down

criminal activity, such as using stolen credit cards or getting

involved in drugs. Dapser never felt that defendant was a

danger to society. Dapser agreed that defendant had “fairly

good cognitive abilities,” including the ability to plot and

strategize.

Defendant’s 22-year-old cousin, Nick Peres, testified that

defendant had previously asked Peres to kill him. When Peres

refused, defendant asked him to find an assassin to kill him. He

also asked Peres to help him get a gun. Peres testified that

defendant used drugs “all the time.”

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PEOPLE v. FREDERICKSON,

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Jan Moorehead testified that she became defendant’s

probation officer when he was 14 years old. Moorehead said that

defendant was a “high control” parolee because of his high

violence potential and mental instability. She tested him for

drugs approximately twice a month. When defendant told

Moorehead he felt depressed, she encouraged him to write down

positive thoughts. Moorehead had referred defendant to the

Volunteers in Parole program because she thought he was

“worth taking a chance on.”

B. Sanity Phase

1. Defense Case

Defendant’s advisory counsel conducted the sanity phase.

Roger Wunderlich, a staff psychiatrist at Atascadero State

Hospital, testified that he examined defendant on June 17,

1994, to determine, in connection with a different case, whether

defendant was a Mentally Disordered Offender (MDO).2 After

interviewing defendant for 30 minutes, Dr. Wunderlich

concluded defendant was an MDO. As a result, defendant was

paroled to the hospital for treatment. Dr. Wunderlich testified

that defendant wanted treatment under the MDO law because

he “was afraid of what he might do if paroled” to the streets. On

2

The Mentally Disordered Offenders Act (§ 2960 et seq.)

“addresses the treatment and civil commitment of offenders who

suffer from a ‘severe mental disorder.’ ” (People v. Blackburn

(2015) 61 Cal.4th 1113, 1127.) “The term ‘severe mental

disorder’ means an illness or disease or condition that

substantially impairs the person’s thought, perception of reality,

emotional process, or judgment; or which grossly impairs

behavior; or that demonstrates evidence of an acute brain

syndrome for which prompt remission, in the absence of

treatment, is unlikely.” (§ 2962, subd. (a)(2).)

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cross-examination, Dr. Wunderlich said that the basis of his

MDO determination was that defendant had “violent fantasies”

that had, in fact, resulted in an assault. He further testified

that defendant was a “coherent, fairly intelligent individual.”

Dr. Wunderlich opined that defendant was able to distinguish

between right and wrong.

Psychiatrist Joseph Chong-Sang Wu testified that he

performed positron emission tomography (PET) scans on

defendant. Defendant’s scans showed an impairment in his

frontal lobe function, which has been reported in patients with

attention deficit hyperactivity disorder. The scans also showed

increased activity in defendant’s temporal lobes, which is found

in people with “aggressive, explosive, [and] violent” behavior.

Steven Clagett, a therapist and case manager for Health

Care Agency of Orange County, testified that he evaluated

defendant at the state hospital on May 5, 1995, about a year

before the Wilson murder, and concluded that defendant was

not suitable for release into the community. Clagett explained

that defendant had not met the agency’s release criteria, which

included 12 months of nonaggressive behavior, cooperation with

the treatment plan, and participation in the groups, programs,

and activities that the agency recommended. During the

evaluation, Clagett saw no evidence of a thought disorder,

hallucinations, or suicidal or homicidal ideation. Defendant told

Clagett that he had “played up” psychiatric symptoms in the

past, trying to “get out of the prison system” and “into the

hospital.”

Defendant testified at the sanity trial. He said he was first

hospitalized when he was 13 years old. He had been running

away from home, sleeping on the streets, and getting into fights

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at school. Defendant described “thought patterns” and

“fantasies” that led him to “act out and to destroy or to hurt

things.” Sometime after his first hospital stay, defendant

started taking medication that helped him control these

thoughts. Defendant was hospitalized again two years later. At

that time, he was diagnosed as having latent schizophrenia with

explosive personality disorder.

Defendant spent his juvenile and adult life in and out of

institutions. He underwent several mental health evaluations

while incarcerated and testified that he functioned better while

medicated, both in and out of prison. Defendant was in prison

in 1994, and before his scheduled release, defendant indicated

to prison mental health professionals that he wanted to be sent

to the state hospital as an MDO because he did not receive

mental health treatment on the streets. Following two

evaluations and a parole hearing, he was committed to

Atascadero on July 1, 1994. Defendant was released from the

state hospital on August 22, 1995. He did not meet with the

parolee outpatient doctor between the date of his release and the

date of the instant offense, nearly 11 months later. He

developed suicidal thoughts and, on June 13, 1996 (the date of

the Wilson murder), acquired a gun with which to commit

suicide. He drove to HomeBase later that day to buy material

for a project he was working on with a friend. He carried the

gun with him in case he found the opportunity to commit suicide

while running errands. Defendant testified that he did not

intend to rob the store.

On cross-examination, the prosecutor questioned

defendant about several theft incidents: stealing cigarettes in

1977; possession of a stolen moped in 1978; stealing clothing

from a department store in 1979; possession of a stolen moped

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in 1980; stealing a car in 1981; and armed robbery of a market

in 1982. Defendant also acknowledged that he pleaded guilty

for stabbing a fellow inmate in September 1984, although he

claimed he did not actually stab the individual. Regarding a

conviction for assault with a deadly weapon in 1991, defendant

testified that someone was attacking another person, and

defendant tried to intervene. The family of the attacker paid

defendant to plead guilty, and he agreed to do so because he

“needed an excuse” to go back to prison. He denied that he

committed the instant offense in order to go back to prison.

The prosecutor asked defendant about his testimony on

October 7, 1997, when he testified as a gang expert for the

defense in an unrelated trial. The prosecutor in that case had

asked defendant if he considered himself to be insane, and

defendant replied, “No.” The prosecutor asked if he considered

himself insane at the time he murdered Wilson, and defendant

replied, “No, sir. I presented that as a defense, and it’s up to a

jury to decide whether I was insane at the time the crime

occurred.” Defendant also admitted testifying in the other trial

that he had claimed to have violent fantasies so that he could

get into Atascadero.

2. Prosecution Case

The prosecution recalled Drs. Flores and Rogers. Dr.

Flores testified that he reviewed defendant’s medical records

and spoke with defendant, and that he did not believe defendant

met the criteria for insanity under section 1026, which governs

insanity pleas. Dr. Flores opined that at the time of Wilson’s

murder, defendant knew the difference between right and

wrong, and he chose to ignore it. Dr. Flores believed defendant’s

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diagnosis of attention deficit hyperactivity disorder was

“debatable” and irrelevant to the issue of insanity.

Dr. Rogers reviewed defendant’s medical records and

examined his behavior before, during, and after the Wilson

murder. In her opinion, defendant was sane when he murdered

Wilson.

Phillip Kelly, a staff psychiatrist at Atascadero, testified

that he had daily contact with defendant between July 1994 and

September 1995. Defendant told Dr. Kelly that he had

“manipulated the examiners” into declaring him to be an MDO.

When Dr. Kelly told defendant that because he manipulated

himself into the hospital, he would “have to deal with the

problem,” defendant replied, “Well you are the experts, you

shouldn’t have let me get away with it.” Dr. Kelly ultimately

diagnosed defendant with antisocial personality disorder and

substance abuse. He did not believe defendant belonged in the

MDO program, concluding he did not have a mental illness.

The jury found that defendant was sane at the time he

committed the crime.

C. Penalty Phase

1. Prosecution Evidence

Four witnesses testified regarding defendant’s prior

criminal activity. Jeff Tawasha testified that he was working as

a cashier at a market on October 25, 1981. Around 3:00 p.m.,

defendant, wearing a stocking over his face, entered the market

with a sawed-off shotgun and said, “This is a robbery. Give me

the money or I’ll blow your head off.” A female customer walked

into the store, and defendant pointed the shotgun at her and

ordered her behind the counter. He then ordered Tawasha to

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take cash out of the cash register and put the money in his bag.

Defendant ran out on foot and entered a waiting vehicle.

Correctional Officer Grant Henry testified that on

January 12, 1983, he conducted a search of defendant’s jail cell

and found a “manufactured stabbing implement.” The weapon

had been made by sharpening a metal rod.

Correctional Lieutenant Richard Martinez testified that

on March 7, 1984, he was working as a floor officer in the prison

where defendant was housed. At approximately 8:00 p.m.,

Martinez was talking to an inmate when defendant began

stabbing the inmate. Defendant stabbed the inmate three to

seven times before Martinez separated them.

Deputy Sheriff Bradford Blakely testified that on

November 15, 1990, he was working in a men’s jail where

defendant was housed. While searching defendant’s cell, he

found a five-inch stabbing instrument fabricated from a mop

bucket.

The prosecutor also introduced defendant’s testimony

from an unrelated trial, in which he admitted that in 1991 he

had stabbed a man six times.

Four witnesses testified regarding defendant’s mental

health. Dr. Flores testified that defendant’s personality

disorder had minimal to no impact on his free will. He explained

that defendant’s “history is not indicative of someone who acts

in an irrational manner, out of touch with reality in ways that

don’t make sense. His history is consistent with someone who

violates the rights of others, consistently.” Dr. Hannah

McGregor, a psychiatrist with the California Department of

Corrections, testified that she certified defendant as an MDO in

1994 after she reviewed reports from Dr. Wunderlich and

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another psychiatrist, Dr. Steven Moberg. Neurologist Dr. Helen

Mayberg testified that she reviewed defendant’s PET scans. She

disagreed with many of Dr. Wu’s findings and methods. She

further opined that defendant’s frontal lobes were “relatively

normal” and that his temporal lobes were normal. Psychologist

Dr. Leisla Howell testified that she had evaluated defendant in

1982 at a state prison following his armed robbery conviction.

She testified that defendant did not take responsibility for his

actions and blamed “everything on everybody for his

difficulties.”

The prosecution also recalled reporter Marla Jo Fisher,

who testified that defendant had told her that he had committed

the robbery because he wanted to go back to prison. He told

Fisher that he did not like “life on the outside.” He appeared

apologetic for shooting Wilson, but blamed HomeBase officials

for failing to teach employees to hand over money without

arguing.

Officer Mark Steen testified regarding his interview of

defendant, conducted with Officer Lozano, on June 14, 1996.

When Steen asked defendant why he tried to commit a robbery,

defendant replied that he was “tired of being broke all the time”

and “want[ed] to be rich.” Defendant told the investigators that

he was “in [his] right mind” during the attempted robbery.

Three witnesses provided victim impact testimony.

Maricela Saucedo, the cashier who asked Wilson for change,

testified that Wilson had been her manager for two months,

during which time she saw him nearly every day. She described

Wilson as outgoing, understanding, friendly, and a hard worker.

She felt responsible for his death, because if she had not asked

him for change, he would not have walked to the safe and would

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not have been killed. Wilson’s aunt, Joyce Fyock, testified that

Wilson’s father had died when he was a toddler and that she had

helped his mother care for him. She described Wilson as

outgoing and said he cared about people. She discussed visiting

Wilson in the hospital before he died and having to take Wilson’s

mother to the mortuary. Wilson’s brother Kirk testified that

because he was 10 years older than Wilson and because their

father had died, the brothers had a father-son relationship. He

described walking into Wilson’s hospital room and staying in the

room until Wilson was pronounced dead about five hours later.

He testified that Wilson enjoyed working at HomeBase because

he liked being around people, but he said that Wilson was also

trying to pursue a career in sports broadcasting. Wilson had

just become an intern at a local network and produced one sports

promotional segment before he died.

2. Defense Evidence

The defense recalled Dr. Wu, who disagreed with Dr.

Mayberg’s conclusions and interpretations of defendant’s PET

scans.

Defendant testified on his own behalf, with advisory

counsel conducting the examination. He explained that his

family moved frequently and that his father left when he was

five years old. He struggled to fit in with his peers and even

with members of his own family, because he was a “mixture of

Scandinavian and Hispanic.” He attended school through

seventh grade and applied for his General Educational

Development (GED) certificate in 1982, at the age of 19, while

incarcerated. Defendant served in the United States Navy for

five months in 1982, receiving an honorable discharge. From

the time he was 12 years old until trial, when he was 34 years

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old, defendant estimated that he spent 15 years in group homes,

juvenile halls, or state institutions.

Defendant studied religion and language while

incarcerated, and he spent time with several different religious

communities. In 1992, he earned vocational certificates in

drywall installation and small engine repair. In 1995, he earned

four computer and programming certificates. Defendant

explained that he felt motivated and was able to focus on his

studies because of the “external controls” that existed in prison

and because of the guidance provided by deputies, counselors,

and correctional officers.

Defendant further testified that he was “groomed” to join

the Mexican Mafia gang beginning in 1981 and that he officially

joined the gang in 1984. He withdrew from the gang in 1985

after he disagreed with the gang’s decision to go to war with

other prisoners. Shortly after, a fellow Mexican Mafia member

stabbed defendant with a welding rod, because leaving a gang

was punishable with death. Defendant’s subsequent prison

sentences had to be served in protective custody.

He said that he asked his mother several times to attend

the penalty phase of his trial, but she did not want to testify,

because her husband’s parents did not know about the offense,

and she worried they would find out about it if she testified on

behalf of her son.

Defendant asked the jury to return a verdict of death. He

explained that he had wanted to be put to death since the day of

his arrest. The death penalty would be a “fitting end to a ruined

life.” He also said that he would “like to apologize” and that he

had never denied his guilt. He said that he had tried to plead

guilty and “acknowledge full responsibility to all of the charges,

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including the special circumstances, even though I don’t believe

in my mind that they’re true.”

The defense recalled Volunteers in Parole mentor Wayne

Dapser. Dapser testified that he knew defendant “probably

better than anyone in this courtroom.” He believed defendant

was one of the most intelligent men he knew. He stated that

defendant “had a childhood from hell” and “a history that very

few of us can even comprehend.” Dapser did not believe

defendant deserved the death penalty.

II. GUILT PHASE ISSUES

A. Self-Representation and Desire to Plead Guilty

Defendant raises several arguments in relation to his

decision to represent himself and his desire to plead guilty in

the municipal court prior to his preliminary hearing. Before

addressing the specific arguments, a detailed description of the

relevant procedural history is necessary.

1. Procedural Background

On June 18, 1996, defendant appeared for arraignment

before a municipal court magistrate. (Former §§ 859, 859b,

860.) At defendant’s request, the court appointed the public

defender to represent him, and the arraignment was continued

to a later date. On July 16, 1996, defendant filed a handwritten

motion seeking to proceed in propria persona (in pro. per.). At a

hearing in the municipal court on August 22, 1996, the court

asked defendant, “You are willing to roll the dice all by yourself

without any skills of an experienced attorney to assist you?”

Defendant replied that he did not trust the public defender’s

office. The court warned defendant that, as a self-represented

defendant, he would not have special privileges, that his

“opposition will be a skilled and talented attorney,” that if

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convicted he could not later complain he did not have effective

assistance of counsel, and that he would be unable to change his

mind during the trial. Defendant’s counsel then asked the court

to defer ruling on the motion, and the court continued the matter

to the date of the scheduled arraignment.

At the arraignment on October 30, 1996, defendant

informed the municipal court that he did not then want to

represent himself, but he reserved the right to represent himself

at some later point. Additionally, defendant requested a

hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118

(Marsden), asking the judge to replace one or both of his

attorneys. The court conducted a Marsden hearing in chambers.

Defendant explained that he had “zero confidence” in his two

attorneys and that he did not want “that vigorous of a defense.”

He continued, “I want them to let me — allow me to steer them

away from certain witnesses that I don’t want called onto the

stand because of — you know, I just — I just don’t want certain

information coming out.” Defendant clarified that he was

concerned about information coming out in the penalty phase of

the case, not the guilt phase. The court explained, “Well, you’re

here now facing just a preliminary hearing, where the People

put on some of their evidence and the defense puts on nothing.

So you’re talking about way down the line at trial and then

sentencing rights.” Defendant replied that he wanted to waive

the preliminary hearing and plead guilty. He acknowledged

that his attorneys were not ineffective and that he was not yet

ready to represent himself, but he wanted counsel who would

not work as hard. The court explained that it could not remove

counsel for working too hard and denied the Marsden motion.

After holding the Marsden hearing, the municipal court

arraigned defendant. Defense counsel acknowledged receipt of

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a copy of the complaint, waived reading and advisement, and

entered a plea of not guilty. Defendant then said, “Over my

objection.” Defense counsel clarified, “What he means is he

would like to have the complaint read.” Defendant did not offer

any further clarification, and the court noted his objection on the

record.

One week later, on November 7, 1996, defendant made an

oral motion in the municipal court to proceed in propria persona.

Defendant said that he had a GED certificate, was aware he

faced the death penalty, and had previously represented himself

in superior court proceedings. Defendant’s only concern was

whether, as a self-represented defendant, he would still have the

ability to request funding for an investigator, and the court

assured him he would. The court stated that it found defendant

to be “a very bright person, mentally alert,” and it granted the

motion to proceed in propria persona. Defendant then accepted

the court’s offer to appoint advisory counsel, and the court

appointed Edgar Freeman. The court went through defendant’s

list of requested jail privileges related to his status as a self-

represented defendant, and it granted much of what defendant

sought.

At an in camera hearing on December 5, 1996, defendant

asked the municipal court to award funds for a guilt phase

investigator and a penalty phase investigator. The court

explained that the district attorney had not yet declared an

intent to pursue the death penalty and therefore the case was

not yet a capital case. Defendant responded that the prosecutor

had stated in open court that it was a capital case. Defendant

also informed the court that he had submitted a letter to the

prosecution offering “to stipulate to the murder in the first

degree and admit all special circumstances and waive all

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appellate rights in order for a sentence of life without the

possibility of parole.” Defendant said, “The district attorney has

refused that. It’s a death penalty case, your honor. I wish it

wasn’t.” The court then explained that it only needed to provide

sufficient investigation funding to allow defendant to have a fair

preliminary hearing; after that, assuming defendant was held

to answer in the superior court, the superior court would be

responsible for disbursing investigation funds. The court then

appointed an investigator and explained that the investigator

could submit bills to the court for the court’s discretionary

consideration.

On December 17, 1996, the municipal court called

defendant back for another in camera hearing, revoking all prior

orders concerning jail privileges and substituting a new order

that, among other things, granted no more than $3,000 in

investigative funds. When the court denied defendant’s request

for an additional $3,000 for office supplies, defendant

complained that the county provided the public defender’s office

with money for office supplies, and he accused the court of not

taking his case seriously. The court replied that “this is a very

serious case. I want you to appreciate your life is on the line and

that you’re not, despite what you think, you are not, I don’t

believe, capable of adequately representing yourself, that is,

doing a legally competent job. . . . I want you to know that my

offer to appoint counsel for you remains outstanding.”

Defendant replied, “I’ll accept if you are going to appoint

secondary counsel on the case under [section] 987, subsection

(d), which grants a second attorney to a capital defendant.” The

court asked whether defendant intended to continue to act as

his own lead counsel, and defendant responded in the

affirmative, indicating that his request was for appointment of

19

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

cocounsel in place of advisory counsel. The court denied the

request without prejudice.

On December 20, 1996, the municipal court called

defendant back once again, this time to make clarifications

regarding its prior orders. Defendant expressed frustration

with some of his self-representation jail privileges, mentioning

in particular his inability to reach his investigator via collect

calls. The court then acknowledged its previous denial of

defendant’s request for secondary counsel, and it offered

defendant the opportunity to show a need for such counsel.

Defendant argued that, given the limitations of his jail

privileges, it would help him to have second counsel to prepare

briefs and motions, and to make appearances on minor matters.

He told the court that writing motions was “a little bit above”

him but added, “I am stubborn enough that if the court does not

grant me a second chair, I will continue to fight the case as best

I can.” The court granted defendant’s request and appointed

Edgar Freeman as “second counsel,” vacating Freeman’s

appointment as advisory counsel. The significance of that

change was apparently that Freeman could make appearances

on behalf of defendant.

As of December 24, 1996, the case was being formally

treated as a capital case, and a superior court judge, sitting in

camera, was handling disbursements of investigative funds

under section 987.9. (See Anderson v. Justice Court (1979) 99

Cal.App.3d 398, 402 [“[T]he superior court is the only court with

jurisdiction to entertain an application for funds under section

987.9. . . . A magistrate has only such powers as are statutorily

granted and it cannot be said that section 987.9 clearly grants

this power to the magistrate.”].) For purposes of the preliminary

20

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

hearing, however, the case was still before a municipal court

magistrate. (See former § 860.)

On January 23, 1997, a superior court judge held an in

camera hearing to discuss defendant’s request to replace his

investigator. The court stated at the outset of the hearing that

it had received notice that an officer had discovered a file folder

containing nude photographs in defendant’s jail cell. This

discovery indicated a violation of defendant’s self-representation

jail privileges, because the photographs were being stored in

plastic sheet protectors that defendant had requested from the

court for purposes of preparing his defense. When the superior

court judge raised the issue, defendant stated, “Well, if the court

would please hear my first motion, this matter could become

moot very fast.”

Defendant then informed the superior court that he

wanted to “go public” — as opposed to in camera — and plead

guilty. He requested the court schedule the penalty phase for

February 5, 1997, and reappoint the public defender’s office to

represent him. He stated that he had already spoken with his

previous attorneys and that they had agreed to take the case for

the penalty phase after he pleaded guilty. The superior court

judge asked defendant if he had spoken to cocounsel Freeman

and received advice about pleading guilty. Defendant replied

that he had spoken to Freeman but “this is not on the advice of

anyone, sir. This is a decision that I have made based on the

fact that there is absolutely zero potential for me receiving any

type of justice whatsoever.” He expressed frustration over his

inability to get a working computer in jail and his difficulty

placing unmonitored telephone calls. He continued, “I do not

care to allow the State of California, the government, to run over

me. I just want to go ahead, plead guilty, go and put my life in

21

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

front of a jury, and let the jury decide whether or not I should

get this death penalty, or whether I should get life

imprisonment. But as to the matter of death, I don’t even want

to play these games anymore. I want to just go ahead, I want to

enter a plea of guilty. I have a right to do so, and I wish to do so

at this time. [¶] I’ve spoken with counsel. And like I said, I

would drop my pro. per. status and accept the public defender’s

office to represent me as far as the penalty phase is concerned.

And if the court would take my waiver, I’m making a knowing

and . . . intelligent waiver.”

As noted, this request to plead guilty arose while the

superior court was holding an in camera hearing solely to

address the disbursement of investigative funds under section

987.9. The case was not otherwise in the superior court, since

the preliminary hearing had not occurred and defendant had not

been held to answer. The superior court therefore explained to

defendant that “the issue as to whether or not you’re going to

plead guilty or waive a preliminary hearing is really not before

me today.” Defendant replied, “I would like it to be before you

because it would handle a lot of these other matters.”

Defendant explained that he had received money from the

court for investigation services but had not received an

investigative report, and he had to “keep coming to this court

and begging for phone calls, begging for materials, begging for

this, while a criminal investigation needs to proceed.” The court

then stated that it would hold a hearing the following week on

the allegations surrounding defendant’s jail violation, and it

temporarily suspended his self-representation jail privileges.

The court continued, “But I would be frank with you and say this

is one of the things I tried to talk to you [about] out front when

I kind of bottom-lined it [on] one of the first days you were in

22

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

court. I sincerely hope you’re sincere in wanting these privileges

to defend yourself.” Defendant replied that he did not believe

the court had ever been sincere in its efforts to assist him. He

added that he would “still like to make the matter moot” by

waiving the preliminary hearing, pleading guilty, and accepting

the appointment of the public defender’s office for the penalty

phase.

The court then agreed to help defendant. It said, “With

your permission and request, I’ll contact — or have my clerk

contact — the judicial officer in Division [311 (where the

preliminary hearing was scheduled to be held)] and request your

matter be calendared as soon as possible because you

want [¶] . . . [¶] . . . to consider a change of plea or waiver of

preliminary hearing . . . .” Later, defendant said, “I’m pleading

guilty and that’s that.” The court responded, “Well, you haven’t

done that yet,” and defendant said, “Well, I’m attempting to

very, very, very hard.” When asked whether he had discussed

the matter with cocounsel Freeman, defendant answered that

he had done so. Defendant discussed the difficulties he was

having with his investigator, and he repeated that the problem

would be moot if the court would allow him to plead guilty. The

court then told defendant, “That part of the matter’s not before

me. [¶] . . . [¶] Okay. Those matters are pending in [Division]

311 [of the municipal court] [¶] . . . [¶] We’re going to make

arrangements to have you brought over to [Division] 311, and

you can discuss your desires there.”

After more discussion concerning defendant’s request to

replace his investigator, the court denied that request. The

court then made clear that it intended to assist defendant in his

effort to waive the preliminary examination and plead guilty.

The court said, “[We]’ll do our best to get you calendared in

23

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

[Division] 311 [of the municipal court] as soon as possible. I

can’t guarantee when that will be. As soon as we’re in recess,

I’m sure my clerk will call over there. If I have to call over there

personally, I would do it.” The hearing then came to an end.

The minute order for the hearing reflected the court’s effort to

help defendant achieve his aim of pleading guilty. It states:

“Defendant’s oral request that preliminary hearing in Div. 311

be advanced and waived, that defendant be allowed to change

his plea to a guilty plea and that the Public Defender be

appointed to represent defendant. Court orders that Div. 311 be

contacted by the Court clerk and that defendant’s requests be

expedited in Div. 311.”

A few days later, on January 27, 1997, the superior court

held another in camera hearing, this time to address defendant’s

violation of his self-representation jail privileges. The court

stated, “It appears to me in this short time that I have been

involved in this case that Mr. Frederickson at least has a dual

focus in what he is doing. Part of it he is trying to defend

himself, and part of it he is trying to use his pro. per. privileges

to do other things that common sense would indicate just aren’t

appropriate and are a violation of the implicit terms of the pro.

per. privilege. [¶] . . . He was in court the other day on the 23rd.

He indicated that, well, judge, you don’t have to worry about it.

I am going to waive the preliminary hearing. I am going to plead

guilty. . . . [¶] He wanted me to contact the judge at [Division]

311 to see if he could be brought over there to waive [the]

preliminary hearing or whatever he was talking about doing.”

Cocounsel Freeman then represented to the court that

defendant was dedicated and committed but had, in his opinion,

a low tolerance for frustration. Freeman stated that after a

“series of frustrations,” including a poorly functioning computer,

24

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

defendant told him that he wanted to “ ‘go in and plead guilty in

muni[cipal] court and get this over with and get it on the road

and let the public defender handle [the] penalty phase.’ ”

Freeman continued, “I told him, ‘Well, Daniel, that is your

decision. That is up to you. I will not participate in entering

into a plea with you in your case.’ I have told him that.”

Lieutenant Danny Jarvis, a facility master at the intake

center that housed defendant, then testified about defendant’s

violation of his self-representation jail privileges. Jarvis

explained that defendant was “very, very inconvenient to care

for,” because he was in protective custody due to his self-

representation. He continued, “What I see that he is doing

within the jail environment, he is using his pro. per. status to

manipulate his status within the areas that he is housed to try

to bring more credence on him so he can have some sort of status

and role within the jail population, which makes it doubly

difficult.” After more discussion among the court, defendant,

and cocounsel Freeman, the court revoked defendant’s self-

representation jail privileges. It closed the hearing by again

offering to help defendant to waive his preliminary hearing and

plead guilty, if that was what defendant still wanted: “We will

call [the municipal court judge assigned to your case] and see if

she can work it in sometime late this morning, or sometime this

afternoon.”

That afternoon, defendant appeared in the department of

the municipal court assigned to his case. He explained to the

court, “[T]he guilt of my crime has been weighing heavily on me

with a remorseful heart. I would like to offer a change of plea

and enter a plea of guilty to murder in the first degree and admit

the special circumstances and waive all appellate rights at this

time.” The prosecutor then requested to speak with both

25

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

defendant and Freeman off the record. Following that

conversation, the prosecutor informed the municipal court that

he had explained to defendant that “by law he cannot plead

guilty to a special circumstances allegation case.” The

prosecutor continued, “I told him no judge can accept your

plea. [¶] Furthermore, I told him that it was my opinion Mr.

Freeman would offer him the best possible representation and

suggested that he follow Mr. Freeman’s advice on the

matter. [¶] It’s my understanding Mr. Frederickson — despite

Mr. Freeman’s conversations with him and my own

conversations with him in Mr. Freeman’s presence — Mr.

Frederickson still wants to plead guilty, although I think he

realizes that he cannot.” The prosecutor added, “I think it’s his

desire to actually waive the preliminary hearing which is still

scheduled for February 5th. My last suggestion to him was not

to do anything today. That we just come on February 5th and

have more of a chance to think about it. To talk to Mr. Freeman,

or talk to his investigator, and then he can decide what he wants

to do on the 5th.”

The court reminded the parties that the People also have

a right to a preliminary hearing, and even if defendant waived

his right, the People could choose not to do so. The prosecutor

stated that the People were not prepared to waive the

preliminary hearing at that time, although the People might be

willing to do so on the scheduled date of the hearing. The court

then explained to defendant, “If the People are unwilling at this

time, or at any time, to waive the preliminary hearing, it doesn’t

really matter [that you want to do so], because they have the

right to have a preliminary hearing in your case. . . . [¶] So [the

prosecutor] is telling me that he is not prepared today to make

that decision even if you are. So to have further discussions and

26

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

undertake further proceedings today would be — for lack of a

better word — a waste of time, and I am going to suggest that

we terminate these proceedings today and that you come back

on February 5th. [¶] . . . You will have had another nine days

to think about this and decide whether or not you truly want to

waive [the] preliminary hearing or not.”3 Defendant agreed

with that solution.

On the scheduled date of the preliminary hearing,

February 5, 1997, defendant never requested to waive the

hearing, and the hearing proceeded. At the end of the hearing,

defendant was held to answer the allegations of the complaint

in the superior court.

By information filed in the superior court on February 18,

1997, the People formally charged defendant with one count of

first degree murder, an enhancement allegation of personal use

of a firearm, and a robbery-murder special circumstance

allegation. On February 24, 1997, defendant appeared in

superior court with cocounsel Freeman and entered pleas of not

3

The magistrate’s statement implied that defendant could

waive the preliminary hearing despite his self-represented

status. The text of former section 860 and relevant case law

suggest otherwise. (See former § 860, Stats. 1963, ch. 1174, § 2,

p. 2670 [“. . . a defendant represented by counsel may . . . waive

his right to an examination . . . ,” italics added]; People v. White

(1963) 213 Cal.App.2d 171, 174 [“Unless represented by counsel

a felony defendant who appears before a committing magistrate

may not . . . waive a preliminary examination (Pen. Code, §

860).”].) Defendant did, however, have the assistance of Edgar

Freeman who, per the magistrate’s order, was serving as

“second counsel.” We need not decide whether, with Freeman

serving in that role, defendant could waive the preliminary

hearing, because, as noted in the main text, the People were not

prepared to join such a waiver.

27

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

guilty and not guilty by reason of insanity. Defendant said

nothing about a desire to plead guilty. At an appearance the

following day, defendant confirmed that despite the revocation

of his self-representation jail privileges, he still intended to

represent himself. Then, during an in camera hearing on

February 28, 1997, the court granted defendant’s request to

appoint a second investigator, tasked solely with interviewing

his family. The court also reinstated defendant’s jail privileges.

On March 14, 1997, the assigned trial judge began

presiding over defendant’s case. On the same date, the

prosecutor requested the court take a second waiver of

defendant’s right to counsel (see Faretta v. California (1975) 422

U.S. 806 (Faretta)), because the first waiver occurred before the

People had formally declared an intent to seek the death

penalty. Defendant stated he understood his rights and the

maximum sentence he faced, and he signed a written Faretta

waiver.

At a pretrial hearing on July 25, 1997, defendant told the

court, “I’m contemplating withdrawing my right to . . . plead in

propria persona and ask for counsel to start representing me.”

Later in the hearing, defendant explained, “[O]ne of the reasons

why I would even be considering giving up my pro. per. status

would be [that] I feel, if counsel represents me, the court will

give counsel the funds to do it, whereas they won’t give it to me.”

The judge presiding over the trial of a capital case does not

oversee disbursement of investigative funds (§ 987.9, subd. (a)),

and therefore the court responded, “It’s an issue I’m not involved

in, so I really can’t comment.”

On August 1, 1997, the trial court held a Marsden hearing

at defendant’s request, despite the circumstance that defendant

28

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

was representing himself. Defendant explained, “I wanted to let

the court know, if the court was not aware, that I’m in pro. per.

I’m lead counsel; he is second chair. . . . This hearing was not

about [cocounsel] Freeman or whether or not he was effectively

representing me. It’s about whether I’m effectively representing

myself as a pro. per. defendant. It sounds funny, a pro. per.

defendant stating that he’s complaining of ineffective

representation, but through all the information that I’ve been

filing, the court has doggedly refused to give me funds for my

investigation. . . . And if that continues, your honor, then

obviously I’m going to lose. And I feel if I continue to represent

myself, it would be a danger to my life, and therefore, if the court

steadfastly refuse[s] to acknowledge that the defendant needs

[section] 987.9 funds for an investigation, then the defendant

would request that the court appoint counsel, [so] that the court

will give money to defend me, which is wrong. I shouldn’t have

to waive my right for defending myself just so I can have money

to effectively represent myself, that’s what I’m complaining of.”

The court reminded defendant that by representing

himself, he could not claim incompetence of counsel. Defendant

replied, “I’m complaining actually of incompetence of judiciary

in this case.” The court then informed defendant that an

appointed attorney would not be given unlimited investigative

funds, and it asked, “So I just need to know if you want to

represent yourself, or do you want [the] court to appoint counsel

for you?” Defendant said that he was withdrawing his Marsden

motion and would continue to represent himself.

The same issue came up again on September 25, 1997.

During an in camera hearing, the court read aloud a note it had

received from defendant: “ ‘Sir, I am requesting an ex parte, in

camera hearing with you to discuss the very possible mechanics

29

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

of turning my case over to appointed counsel. My reasons are

legion, but the biggest is the fact that the court will not give me

investigative funds to fully investigate my cause. I know that it

is only due to my persistence of wanting pro. per. that this is the

case. [¶] So the issues to be discussed by us in camera and ex

parte are: 1. Appointment of new lead counsel; 2. Appointment

of new second chair; 3. Hear any argument by defendant and

counsel for the purpose of retaining some of the pro. per.

privileges now enjoyed to assist in the speedy transition of case

information.’ ” The note continued: “ ‘Sir, I know that a lot of

men go pro. per. just to confound the court’s process. I assure

you my intention was honorable. It is still my desire to defend

myself, but I cannot present a case to [the] jury without a full

and proper investigation. The court will be open to new

counsel’s requests, where they were closed to mine. I know that

this will also probably make me waive more time, a thing the

court knows I do not want to do, but if we could just sit down

and work out a good plan of action immediately, I am sure the

end of justice will be served. Thank you, sir.’ ”

After a lengthy discussion, the court explained: “I’ve

always been prepared to work with you, sir, the problem, sir, I

can’t hold you to a lower standard than I hold everybody else.

Someone who represents himself or herself basically steps into

the shoes of someone that is represented by counsel, and so there

aren’t any special privileges. Your pro. per. privileges I don’t

think are special privileges; we basically afford you . . . the

privileges so you can basically be able to do the same things that

a lawyer can do if the lawyer were representing you.” Defendant

then asked to speak with cocounsel Freeman off the record. On

return, the court asked defendant to state his “desire with

respect to representation.” Defendant asked to discuss funding

30

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

first, “because that’s the primary motivation of whether or not I

will continue in pro. per. or give the case over to counsel, but I

mean it seems dangerous . . . for me to set precedent for the rest

of the pro. per. [litigant]s if all the court has to do is set a few

harsh standards, and then the pro. per. [litigant] can lay down,

and counsel can step in and automatically start getting funds

available to do the case. It would be dangerous to future pro.

per. [litigant]s of the United States of America.” The court then

reminded defendant that there was no guarantee that an

attorney would receive investigative funds that defendant had

not received, and the court asked defendant if he wished to

continue to represent himself. Defendant said, “I intend to

proceed in pro. per.”

On October 20, 1997, during a pretrial conference, the

court initiated a discussion on cocounsel Freeman’s role during

trial. The court opined that “advisory counsel is just that, an

advisory counsel. There is no such thing as a pro. per.

cocounsel.” Defendant explained that Freeman had been

relieved as advisory counsel and appointed as cocounsel under

section 987, subdivision (d). Defendant further related that he

planned to present the opening statement and closing

argument, and to conduct the examination of witnesses during

the guilt phase, while Freeman would conduct the sanity phase.

Defendant and Freeman planned to share responsibilities

during the penalty phase, with defendant conducting the

opening statement and the examination of witnesses, Freeman

conducting the direct and redirect examination of defendant,

and both of them conducting the closing argument.

The court responded, “I’m somewhat puzzled at [the

municipal court’s] order, because the research that I’ve done

indicates that there is no such thing as cocounsel when the

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PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

defendant is pro. per.” The court continued, “The reason I need

to sort that out is because in my opinion, if you are going to be

representing yourself, you need to represent yourself in all

processes — all stages of the trial.” After defendant requested

that Freeman be permitted to object on his behalf throughout

trial, the court said, “No. You either represent yourself or you

don’t. He can certainly advise you. . . . But in terms of him

acting as your attorney, either he is your attorney or he’s

advisory counsel, which means it’s up to you.” After more

discussion, the court concluded that the previous appointment

of Freeman as second chair was inappropriate. It said: “So I’m

going to be conducting this trial as if you are representing

yourself in pro. per., and Mr. Freeman is your advisory counsel.”

Shortly thereafter, the prosecutor asked the court to order

defendant not to mention any discussion of a proposed plea deal

in front of the jury. Defendant replied by bringing up his earlier

attempt to plead guilty: “In Division 311 and on several

occasions the defendant has attempted to plead guilty, and the

prosecution has refused to accept that. Counsel at that time

refused to join, and the court refused to accept that or

acknowledge my plea of guilty, but it was placed on the record.”

The prosecutor acknowledged that “[i]t was placed on the

record” but pointed out that “the Penal Code specifically

disallows a guilty plea while he’s in pro. per., and no counsel has

ever agreed to join in his plea, so technically it’s an illegal,

unacceptable plea and still should not be mentioned to this

jury.” The court agreed that defendant’s attempts to plead

guilty were not relevant for the guilt phase, but the question was

“open to argument” for the sanity and penalty phases.

On October 27, 1997, defendant again asked the court to

allow him to introduce evidence of his attempts to plead guilty.

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PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

He said, “Your honor, a clear and distinct part of my testimony

and evidence is the fact of my remorse and confession. It would

appear to a trier of fact that I am playing a game by pleading

not guilty yet introducing evidence of my confessions of guilt.

Just because my attorneys have refused to join my plea

pursuant to [section] 1018 does not alter the truth. The truth is

that I have attempted to plead guilty and accept responsibility

for the [violation of section] 187. [¶] . . . [¶] . . . The jury is going

to feel like, well, if he’s confessing and now coming in front of us

and saying he’s not guilty, he’s pulling the wool over our eyes.

My veracity is at stake here, your honor.” Defendant then asked

the court to introduce evidence that defendant had “accepted

responsibility and guilt for [his] crime and [had] attempted to

plead guilty.” The court reminded defendant that such

information was relevant at the penalty phase but not at the

guilt phase. Defendant nonetheless asked the court to “instruct

the jury on [section] 1018.” He asked that the court explain to

the jury “that the defendant has attempted to plead guilty” but

that, by law, he could not do so. The court again ruled that the

information was relevant only at the penalty phase, not at the

guilt phase.

2. Right to Plead Guilty

Defendant contends that he was denied his personal and

fundamental right to control his defense when the trial court,

acting under compulsion of section 1018, refused to permit him

to plead guilty without the consent of counsel. We conclude his

claim is forfeited because he never moved to plead guilty in the

superior court, thereby causing that court to invoke section

1018.

33

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

a. Legal Background

Section 1018 provides in relevant part: “No plea of guilty

of a felony for which the maximum punishment is death, or life

imprisonment without the possibility of parole, shall be received

from a defendant who does not appear with counsel, nor

shall that plea be received without the consent of the

defendant’s counsel.” This portion of section 1018 was added in

1973 as part of an extensive revision to the death penalty laws.

(Stats.1973, ch. 719, § 11, p. 1301.) “The fact that the

requirement of counsel’s consent to guilty pleas in capital cases

was enacted as part of [an extensive revision of the state’s death

penalty laws in response to Furman v. Georgia (1972) 408 U.S.

238] demonstrates that the Legislature intended it to serve as a

further independent safeguard against erroneous imposition of

a death sentence.” (People v. Chadd (1981) 28 Cal.3d 739, 750

(Chadd).)

Two years after the 1973 amendment to section 1018, the

high court recognized a defendant’s constitutional right to self-

representation in Faretta, supra, 422 U.S. 806. In Chadd,

supra, 28 Cal.3d 739, we reconciled the right of self-

representation with section 1018’s requirement that counsel

consent to a guilty plea in a capital offense. Defense counsel in

Chadd informed the trial court that the defendant wanted to

plead guilty against counsel’s advice, and counsel explained that

he would not consent to his client entering such a plea, because

the defendant’s desire was to commit suicide. (Id. at p.

744.) The defendant admitted to the court that he had

attempted suicide, and if he did not receive the death penalty,

he would “just have to do it myself.” (Id. at p. 745.) Defense

counsel reminded the court that a guilty plea by his client was

without his consent, and the prosecutor agreed that section 1018

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PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

prohibited the court from accepting such a plea. (Chadd, at p.

745.)

The trial court ruled that if it found the defendant

competent to act as his own attorney under Faretta, it could

accept his guilty plea despite section 1018. (Chadd, supra, 28

Cal.3d at p. 745.) The court questioned the defendant, found

him competent under Faretta, and then, without actually

dismissing defense counsel, allowed the defendant to plead

guilty to the information. (Chadd, at p. 745.) On appeal, the

Attorney General argued that section 1018 could be construed

to permit a capital defendant to discharge his attorney,

represent himself, and plead guilty. (Chadd, at p. 746.) We

rejected this contention, however, stating that the language of

section 1018 plainly required the consent of counsel to plead

guilty. (Chadd, at p. 746.) Construing the statute “to permit a

capital defendant to discharge his attorney and plead guilty if

he knowingly, voluntarily, and openly waives his right to

counsel” “would make a major portion of the statute redundant,”

we reasoned, because “that is precisely what the third sentence

of section 1018 expressly authorizes noncapital defendants to

do.” (Chadd, at p. 747.)

We noted the larger public interest at stake in guilty pleas

in capital offenses, as well as the Legislature’s “increasing

concern to insure that no defendant enter a guilty plea in our

courts without fully understanding the nature and

consequences of his act.” (Chadd, supra, 28 Cal.3d at pp. 748–

749.)

We read Faretta as not affecting the Legislature’s

authority to condition guilty pleas on counsel’s consent. (Chadd,

supra, 28 Cal.3d at p. 750.) “Nothing in Faretta, either

35

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

expressly or impliedly, deprives the state of the right to conclude

that the danger of erroneously imposing a death sentence

outweighs the minor infringement of the right of self-

representation resulting when defendant’s right to plead guilty

in capital cases is subjected to the requirement of his counsel’s

consent.” (Chadd, at p. 751.) We further concluded that Faretta

did not grant a capital defendant the right to discharge counsel

and waive his automatic appeal, explaining that the state, too,

had an indisputable interest in correct judgments in capital

cases. (Chadd, at p. 752.)

We again held section 1018 to be constitutional more than

25 years later in People v. Alfaro (2007) 41 Cal.4th 1277 (Alfaro).

In Alfaro, the defendant accepted complete responsibility for the

offenses in a videotaped confession on the day of her arrest. (Id.

at p. 1295.) Eleven days before jury selection began, defense

counsel informed the trial court that the defendant wanted to

plead guilty to the special circumstances against counsel’s

advice and asked the court whether it believed he should

withdraw from the case. (Ibid.) The defendant explained to the

court that she wanted to plead guilty because she feared for her

safety and that of her family should she implicate her

accomplice in the crime. (Id. at p. 1296.) The court responded

that under section 1018 she could not plead guilty against her

attorney’s advice. The court also declined to remove defense

counsel from the case, concluding that the disagreement

between counsel and the defendant involved trial tactics and

therefore did not require counsel’s removal. (Alfaro, at p. 1296.)

The prosecutor then argued during the penalty phase that the

defendant had not accepted responsibility and lacked remorse,

and the jury did not hear evidence that the defendant had

attempted to enter a guilty plea. (Id. at pp. 1296–1297.)

36

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

We acknowledged the defendant’s argument that “a

defendant has the ultimate, fundamental right to control his or

her own defense,” but concluded that section 1018 was “one of

several exceptions to the general rule.” (Alfaro, supra, 41

Cal.4th at p. 1298.) We noted that “[t]he statute constitutes a

legislative recognition of the severe consequences of a guilty plea

in a capital case, and provides protection against an ill-advised

guilty plea and the erroneous imposition of a death sentence.”

(Id. at p. 1300.) We rejected the defendant’s assertion that the

trial court improperly failed to inquire into her reasons for

desiring to plead guilty and that had it done so, it would have

discovered her intent to demonstrate remorse. We noted that

nothing in the record supported the defendant’s assertion on

appeal that her desire to plead guilty was motivated by a desire

to establish a defense of remorse or to establish that she

accepted responsibility for the murder. (Id. at p. 1302.)

“Accordingly, the trial court reasonably concluded that the

dispute between defendant and her counsel did not implicate a

constitutionally protected fundamental interest that might

override the plain terms of section 1018.” (Alfaro, at p. 1302.)

We left undecided whether a defendant might be able to make a

successful as-applied challenge to the constitutionality of

section 1018 in a case in which the evidence of guilt was very

strong and the defendant’s express reason for wanting to plead

guilty was to lay the foundation for a remorse argument at the

penalty phase.

Most recently, in McCoy v. Louisiana (2018) __ U.S. __

[138 S.Ct. 1500] (McCoy), the United States Supreme Court held

that “it is the defendant’s prerogative, not counsel’s, to decide on

the objective of his defense: to admit guilt in the hope of gaining

mercy at the sentencing stage [of a capital case], or to maintain

37

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

his innocence, leaving it to the State to prove his guilt beyond a

reasonable doubt.” (Id. at p. __ [138 S.Ct. at p. 1505], italics

added.) In McCoy, the defendant’s retained counsel determined

that the best strategy for avoiding a death sentence was to

concede guilt as to the three murders during the guilt phase and

plead for mercy during the penalty phase. (Id. at p. __ [138 S.Ct.

at p. 1506].) The defendant was “ ‘furious’ ” with counsel’s

strategy and wanted to pursue acquittal instead. (Ibid.) The

trial court denied the defendant’s request to remove his counsel,

as well as defense counsel’s request to be relieved if the

defendant secured other counsel. (Ibid.) The court told counsel

that it was his decision whether to concede guilt or put on a

defense case. (Ibid.) Defense counsel then acknowledged during

his opening statement to the jury that the evidence

unambiguously showed that the defendant had committed the

murders. Nonetheless, the defendant testified he was innocent.

(Id. at p. __ [138 S.Ct. at p. 1507].) The jury found the defendant

guilty and then returned three death verdicts. (Ibid.)

The defendant, represented by new counsel,

unsuccessfully moved for a new trial on the ground that the

court had violated his constitutional rights by allowing counsel

to concede his guilt over his objection. (McCoy, supra, __ U.S. at

p. __ [138 S.Ct. at p. 1507].) The Louisiana Supreme Court

affirmed the trial court’s ruling, concluding that the concession

was permissible because defense counsel reasonably believed

that admitting guilt offered the defendant the best chance to

avoid a death sentence. (Id. at p. __ [138 S.Ct. at p. 1507].)

The United States Supreme Court reversed the judgment.

(McCoy, supra, __ U.S. at p. __ [138 S.Ct. at p. 1512].) It

explained that the Sixth Amendment guarantees a defendant

the right to make a defense; it “ ‘speaks of the “assistance” of

38

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

counsel, and an assistant, however expert, is still an assistant.’ ”

(Id. at p. __ [138 S.Ct. at p. 1508].) While some decisions, such

as trial management, are best left to counsel, “[s]ome

decisions . . . are reserved for the client — notably, whether to

plead guilty, waive the right to a jury trial, testify in one’s own

behalf, and forgo an appeal.” (Id. at p. __ [138 S.Ct. at p. 1508],

italics added.) The high court held that a defendant who

“insist[s] on maintaining her innocence at the guilt phase of a

capital trial” cannot be forced by counsel to concede guilt.

Defense counsel can make strategic choices regarding how best

to achieve a defendant’s objectives, but the defendant chooses

those objectives. (Ibid.)

b. Analysis

If defendant wanted to challenge the constitutionality of

section 1018, whether on the ground that it precluded him from

using a guilty plea to lay the foundation for a penalty phase

remorse argument or on some other ground, he needed to

request to plead guilty in the superior court and ask that court

to make a ruling based on section 1018, thus preserving the

issue on appeal. He never did so. The claim is therefore

forfeited.

Before 1992, there were clear jurisdictional lines

separating misdemeanor cases from felony cases: The

municipal court had no jurisdiction in felony cases, and the

superior court had no jurisdiction in misdemeanor cases.

Therefore, in a felony case, the municipal court could not convict

a defendant on a plea of guilty, because it was not authorized to

39

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

render a felony judgment. (See, e.g., former § 1462,4 Stats. 1976,

ch. 1288, § 21, p. 5765; People v. Callahan (1997) 54 Cal.App.4th

1419, 1424–1425 [magistrate had no authority under the pre-

1992 amendment to section 1462 to impose judgment in

noncapital felony cases]; People v. Miskiewicz (1984) 158

Cal.App.3d 820, 824–825; People v. Denton (1978) 84 Cal.App.3d

Supp. 1, Supp. 4–Supp. 6.) A municipal court judge, sitting as a

magistrate (not as a judge), could arraign a defendant in a

noncapital felony case, and if the defendant pleaded guilty (or

nolo contendere), the magistrate could accept the plea and

certify the case to the superior court for entry of judgment.

(Former § 859a,5 Stats. 1980, ch. 540, § 1, pp. 1495–1496; People

4

Before 1992, former section 1462 provided: “Each

municipal and justice court shall have jurisdiction in all

criminal cases amounting to misdemeanor, where the offense

charged was committed within the county in which such

municipal or justice court is established except those of which

the juvenile court is given jurisdiction and those of which other

courts are given exclusive jurisdiction. Each municipal and

justice court shall have exclusive jurisdiction in all cases

involving the violation of ordinances of cities or towns situated

within the district in which such court is established.”

5

Before 1992, former section 859a provided in relevant

part: “(a) If the public offense charged is a felony not punishable

with death, the magistrate shall immediately upon the

appearance of counsel for the defendant read the complaint to

the defendant and ask him whether he pleads guilty or not

guilty to the offense charged therein . . . ; thereupon, or at any

time thereafter, while the charge remains pending before the

magistrate and when his counsel is present, the defendant may

plead guilty to the offense charged . . . . [¶] (b) . . . [T]he

magistrate shall, upon the receipt of a plea of guilty . . . ,

immediately appoint a time for pronouncing judgment in the

superior court . . . .” (Italics added.)

40

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

v. Miskiewicz, at pp. 824–825 [upon entry of felony plea,

magistrate must immediately certify case to superior court].)

And, conversely, if the defendant pleaded not guilty, a municipal

court judge, again sitting as a magistrate, could preside at the

preliminary hearing and hold the defendant to answer. (Former

§ 859b, Stats. 1989, ch. 897, § 26.5, p. 3066–3067; former § 860,

Stats. 1963, ch. 1174, § 2, p. 2670.) But, as stated, the municipal

court lacked jurisdiction to render a felony judgment. Moreover,

under former section 859a, its judges, sitting as magistrates,

also lacked authority to accept a guilty plea to a felony

punishable by death.

These jurisdictional lines began to blur in 1992. Former

section 1462 was amended, effective that year, to allow the

municipal courts to accept guilty pleas in “noncapital” felony

cases and to pronounce judgment in such cases, thus reducing

the burden on the superior courts. (Former § 1462,6 Stats. 1991,

6

As a result of this change, former section 1462 provided:

“(a) Each municipal and justice court shall have jurisdiction in

all criminal cases amounting to misdemeanor, where the offense

charged was committed within the county in which the

municipal or justice court is established except those of which

the juvenile court is given jurisdiction and those of which other

courts are given exclusive jurisdiction. Each municipal and

justice court shall have exclusive jurisdiction in all cases

involving the violation of ordinances of cities or towns situated

within the district in which the court is established. [¶] (b)

Each municipal and justice court shall have jurisdiction in all

noncapital criminal cases to receive a plea of guilty or nolo

contendere, appoint a time for pronouncing judgment

under Section 859a, pronounce judgment, and refer the case to

the probation officer if eligible for probation. [¶] (c) The

superior courts shall have jurisdiction in all misdemeanor

criminal cases to receive a plea of guilty or nolo contendere,

41

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

ch. 613, § 8, p. 2886; see former § 859a,7 Stats. 1991, ch. 613, §

6, pp. 2884–2885.) The same amendment allowed superior

courts to take guilty pleas in misdemeanor cases, thus giving

superior courts flexibility to accept misdemeanor plea bargains

as a way of resolving felony charges. (Stats. 1991, ch. 613, § 8,

p. 2886.) But the law remained unchanged for capital cases —

that is, the law continued to be that the municipal court lacked

jurisdiction to pronounce judgment in such cases, and its judges,

sitting as magistrates, lacked statutory authority to accept

guilty pleas in such cases. Former section 1462 was again

amended in 1998 in ways that are not relevant here. (Stats.

1998, ch. 931, § 417, p. 6633.) Finally, in 2002, due to unification

of the municipal and superior courts, former section 1462 was

repealed. (Stats. 2002, ch. 784, § 554.1.)

Therefore, when defendant was in the municipal court in

1996, the judicial officers before whom he appeared were not

acting as judges; rather, they were sitting as magistrates. (See

former §§ 859, 859b, 860.) Moreover, because the offense

appoint a time for pronouncing judgment, and pronounce

judgment.” (Italics added.)

7

As a result of this change, former section 859a provided in

relevant part: “(a) If the public offense charged is a felony not

punishable with death, the magistrate shall immediately upon

the appearance of counsel for the defendant read the complaint

to the defendant and ask him or her whether he or she pleads

guilty or not guilty to the offense charged therein . . . . While

the charge remains pending before the magistrate and when the

defendant’s counsel is present, the defendant may plead guilty

to the offense charged . . . . [¶] (b) . . . [T]he magistrate shall,

upon the receipt of a plea of guilty . . . , immediately appoint a

time for pronouncing judgment in the superior court, municipal

court, or justice court . . . .” (Italics added.)

42

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

charged was a felony “punishable with death” (former § 859a,

subd. (a), Stats. 1992, ch. 78, § 1, pp. 274–275), the municipal

court judge (sitting as a magistrate) was, at most, empowered to

deliver to defendant a copy of the complaint (former § 859,

amended by initiative, Primary Elec. (June 5, 1990), commonly

known as Prop. 115), inform defendant that, if needed, counsel

would be provided for him at the public’s expense (ibid.), set a

time for the preliminary hearing (former § 859b, Stats. 1989, ch.

897, § 26.5, pp. 3066–3067), and, at that appointed time,

“proceed to examine the case,” unless such examination was

waived (former § 860, Stats. 1963, ch. 1174, § 2, p. 2670). The

magistrate was simply not authorized to accept a plea of guilty

and pronounce judgment, because former section 859a — which

authorized that procedure — only applied “[i]f the public offense

charged is a felony not punishable with death.” (Former

§ 859a.)8

Hence, if defendant wanted to plead guilty before his

preliminary hearing, when his case was before a magistrate, his

only option was (1) to waive the preliminary hearing, and then

(2) enter his guilty plea in superior court to the information filed

in that court. (Former § 860, Stats. 1963, ch. 1174, § 2, p. 2670.)

Defendant was required to follow that two-step process. (See,

e.g., In re Van Brunt (1966) 242 Cal.App.2d 96, 101–102.)

Moreover, the People could insist on a preliminary hearing

8

In a letter brief filed after oral argument, defendant

concedes this point, saying, “As it appears that the municipal

court could not accept his guilty plea under former section 1462,

the municipal court should have certified or transferred the case

to the superior court for acceptance of the plea.”

43

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

notwithstanding defendant’s willingness to waive it. (Former

§ 860, Stats. 1963, ch. 1174, § 2, p. 2670 [“nothing contained

herein shall prevent the district attorney . . . from requiring that

[a preliminary] examination be held as provided in this

chapter”].)9

Here, defendant’s attempts to plead guilty, all of which

occurred before the preliminary hearing, were all rejected for

procedural reasons unrelated to section 1018. Defendant first

mentioned wanting to plead guilty on October 30, 1996, during

a Marsden hearing. He complained that his attorneys were

working too hard and that he did not want “certain information

getting out” during the penalty phase. When the court

explained that the penalty phase was a long time away,

defendant stated that he wanted to waive the preliminary

hearing and plead guilty. He acknowledged that his counsel

were not ineffective, but he did not want attorneys who would

work so hard. The court denied the Marsden motion and

arraigned defendant that same day. Defense counsel waived

reading of the complaint and entered a plea of not guilty.

Defendant objected, but counsel explained that defendant’s

objection meant that he wanted the complaint read. Defendant

did not further clarify his reason for objecting. The case was one

in which the punishment might be death, and the municipal

court had no power to accept a guilty plea. At no point did the

municipal court rule that, based on section 1018, it would not

accept defendant’s guilty plea.

9

As noted in footnote 3 on page 27, ante, defendant may also

have been precluded from waiving the preliminary hearing

because of his self-represented status.

44

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

On January 23, 1997, defendant was before a superior

court judge for an in camera hearing regarding investigative

funds under section 987.9, but the preliminary hearing had not

occurred and the case was still before the municipal court.

Defendant told the superior court judge that he wanted to “go

public” and plead guilty. He expressed frustration, saying, “I

don’t even want to play these games anymore. I want to just go

ahead, I want to enter a plea of guilty. I have a right to do so,

and I wish to do so at this time.” Because defendant was only

before a superior court judge on a section 987.9 hearing, the

superior court explained that “the issue as to whether or not

you’re going to plead guilty or waive a preliminary hearing is

really not before me today.” Defendant was insistent, and the

court agreed to help defendant to achieve his aim. As noted,

pleading guilty required a two-step process: (1) waiver of the

preliminary hearing; and (2) entry of a guilty plea in superior

court.10 Therefore, the superior court judge said, “With your

permission and request, I’ll contact — or have my clerk contact

— the judicial officer in Division [311 of the municipal court] and

request your matter be calendared as soon as possible because

you want [¶] . . . [¶] . . . to consider a change of plea or waiver of

preliminary hearing . . . .” Defendant continued to insist. At

one point he said, “I’m pleading guilty and that’s that.” The

superior court judge responded, “Well, you haven’t done that

yet.” And defendant said, “Well, I’m attempting to very, very,

10

Significantly, several times when defendant expressed his

desire to plead guilty, he also said he wanted to waive the

preliminary hearing. It seems, therefore, that defendant had

been informed of the two-step process requiring him first to

proceed through (or waive) the preliminary hearing before he

could enter a guilty plea in superior court.

45

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

very hard.” The court told defendant, “That part of the matter’s

not before me. [¶] . . . [¶] Okay. Those matters are pending in

[Division] 311 [of the municipal court] [¶] . . . [¶] We’re going to

make arrangements to have you brought over to [Division] 311,

and you can discuss your desires there.” The court added,

“[We]’ll do our best to get you calendared in [Division] 311 [of

the municipal court] as soon as possible. I can’t guarantee when

that will be. As soon as we’re in recess, I’m sure my clerk will

call over there. If I have to call over there personally, I would

do it.” Thus, the superior court judge made a considerable effort

to help defendant achieve his aim of pleading guilty.

Defendant argues that these efforts were misleading. He

contends that the superior court could have accepted his guilty

plea and instead it misleadingly sent defendant to municipal

court, a court that lacked authority to accept the guilty plea.

Because defendant was proceeding in propria persona,

defendant argues, the superior court’s instructions were unfair

to him. Defendant points out that although a self-represented

defendant is held to the same standard as counsel, the court is

not permitted to mislead a self-represented defendant.

But the superior court did not mislead defendant. The

superior court was only involved because the case was a capital

case that required disbursement of investigative funds under

section 987.9, and a municipal court judge was not empowered

to disburse such funds. (See Anderson v. Justice Court, supra,

99 Cal.App.3d at p. 402.) The case was not otherwise pending

in the superior court, and the superior court therefore could not

have accepted defendant’s guilty plea. Rather, the law required

a magistrate to hold a preliminary hearing (or accept a waiver

of such a hearing), and only then could defendant be held to

answer in superior court and plead guilty. Defendant cites no

46

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

authority for the proposition that in 1996, when municipal court

judges sitting as magistrates conducted preliminary hearings in

felony cases, a defendant in a case in which the punishment

might be death could enter a guilty plea in superior court

without first having completed proceedings in the municipal

court. Here, the superior court judge who was holding the

section 987.9 hearing while defendant’s case was otherwise in

the municipal court could not accept defendant’s guilty plea.

Hence, the superior court judge did not mislead defendant;

rather, he sent defendant on the only path that would have

allowed defendant to achieve his stated aim.

A few days later, on January 27, 1997, the superior court

held another in camera hearing and defendant’s request to plead

guilty was discussed. The superior court again offered to help

defendant waive his preliminary hearing and plead guilty, if

that was what defendant still wanted: “We will call [the

municipal court magistrate assigned to your case] and see if she

can work it in sometime late this morning, or sometime this

afternoon.”

That afternoon, defendant appeared in the department of

the municipal court assigned to his case. He explained to the

court, “[T]he guilt of my crime has been weighing heavily on me

with a remorseful heart. I would like to offer a change of plea

and enter a plea of guilty to murder in the first degree and admit

the special circumstances and waive all appellate rights at this

time.” The prosecutor then told defendant, off the record

(although later described on the record), that “by law he cannot

plead guilty to a special circumstances allegation case” and “no

judge can accept your plea.” The court then reminded the

parties that the People also have a right to a preliminary

hearing, and even if defendant waived his right, the People

47

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

could choose not to do so. The prosecutor stated that the People

were not prepared to waive the preliminary hearing, and so the

municipal court explained to defendant that there was no choice

but to proceed with that hearing. The court said: “So to have

further discussions and undertake further proceedings today

would be — for lack of a better word — a waste of time, and I

am going to suggest that we terminate these proceedings today

and that you come back on February 5th. [¶] . . . You will have

had another nine days to think about this and decide whether

or not you truly want to waive [the] preliminary hearing or not.”

Defendant agreed with that solution.

Then, on the scheduled date of the preliminary hearing in

municipal court, February 5, 1997, defendant never requested

to waive the hearing, and the hearing proceeded. At the end of

the hearing, defendant was held to answer in superior court.

Defendant was then charged in the superior court by

information filed on February 18, 1997. On February 24, 1997,

defendant appeared in superior court and entered pleas of not

guilty and not guilty by reason of insanity. Defendant said

nothing about a desire to plead guilty.

As noted, if defendant wanted to challenge the

constitutionality of section 1018, he needed to ask to plead guilty

in superior court and ask the court to make a ruling based on

section 1018, thus preserving the issue on appeal. He never did

so. He did ask to plead guilty while his case was in the

municipal court, and both the superior court judge hearing his

section 987.9 motion and the municipal court magistrate

assigned to his preliminary hearing attempted to assist him.

But after the preliminary hearing, when defendant was held to

answer in superior court, he never renewed his request to plead

48

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

guilty. On the contrary, he entered pleas of not guilty and not

guilty by reason of insanity.

It is true that defendant was apparently persuaded that

he could not plead guilty. The prosecutor had told him that “no

judge can accept your plea.” Moreover, at the hearings on

October 20 and 27, 1997, he told the court that he had wanted

to plead guilty but could not do so, due to section 1018, and he

asked the court to allow him to inform the jury of that fact.11

11

Defendant may have been under the impression that his

previous requests to plead guilty, made when his case was in the

municipal court, were denied pursuant to section 1018, but that

possibility does not change the fact that, under former section

859a, the municipal court lacked statutory authority to accept

defendant’s guilty plea.

The concurring opinion argues that the municipal court

relied on section 1018 in rejecting defendant’s request to plead

guilty. It focuses on the prosecutor’s statement to the municipal

court that “by law [defendant] cannot plead guilty to a special

circumstances allegation case.” The concurrence describes that

statement as “an evident reference to section 1018.” (Conc. opn.

of Liu, J., p. 4, post.) But the prosecutor could equally well have

been referring to the municipal court’s lack of authority under

former section 859a. That would explain why the prosecutor

added, “I think it’s [defendant’s] desire to actually waive the

preliminary hearing,” meaning that defendant wanted to get his

case out of the municipal court. To be sure, the prosecutor also

said that “no judge” could accept defendant’s plea, but the

prosecutor may only have meant that no judge could do so at

that time, before defendant was charged in the superior court.

Significantly, in arguing to the municipal court that defendant

was barred from pleading guilty, the prosecutor never made any

reference to defendant’s unrepresented status, and the

prosecutor’s comments nine months later in the superior court

could not have influenced the municipal court, which clearly

relied on the People’s right to a preliminary hearing, not section

1018, in rebuffing defendant’s request to plead guilty.

49

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

But, be that as it may, defendant never requested to plead guilty

before the superior court, and he never asked that court to make

a ruling based on section 1018, which would have preserved on

appeal the issue of that statute’s constitutionality. He may have

been acting based on the advice that no judge could accept his

plea, but he still needed to obtain a ruling and thus preserve the

issue. Self-represented defendants are “held to the same

standard of knowledge of law and procedure as is an attorney,”

and that point remains valid even in capital cases. (People v.

Clark (1990) 50 Cal.3d 583, 625; see People v. Espinoza (2016) 1

Cal.5th 61, 75; People v. Blair (2005) 36 Cal.4th 686, 734; People

v. Mendoza (2000) 24 Cal.4th 130, 157; Faretta, supra, 422 U.S.

806, 834–835, fn. 46.) “We have . . . rejected claims that the fact

or likelihood that an unskilled, self-represented defendant will

perform poorly in conducting his or her own defense must defeat

the Faretta right. [¶] . . . Instead, we have accepted that the

cost of recognizing a criminal defendant’s right to self-

representation may result ‘ “in detriment to the defendant, if not

outright unfairness.” ’ [Citations.] But that is a cost that we

allow defendants the choice of paying, if they can do so

knowingly and voluntarily.” (People v. Mickel (2016) 2 Cal.5th

181, 206; see People v. Taylor (2009) 47 Cal.4th 850, 866.)

In summary, pleading guilty before the preliminary

hearing was simply not an option for defendant, because the

municipal court magistrate had no power to accept a guilty plea

in a capital case. The municipal court never made a section 1018

ruling prohibiting defendant from pleading guilty, because the

issue of a guilty plea was not before it and, for jurisdictional

reasons, could not be before it. The most the municipal court

could do for defendant was accept a stipulated waiver of the

preliminary hearing and then send the case to the superior

50

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

court. But the People did not agree to waive the preliminary

hearing, and when the day of the preliminary hearing arrived,

defendant did not renew his request to plead guilty. Nor did he

renew it in the superior court after he was held to answer. Only

the superior court could have made a ruling based on section

1018, and once the case got to the superior court, defendant

never asked to plead guilty, so such a ruling never became

necessary. We therefore reject defendant’s constitutional

challenge to section 1018 on the ground that the trial court

never made a ruling under section 1018, and his claim is

therefore forfeited.

3. Validity of Waiver of Right to Counsel

Defendant challenges the validity of his waiver of his right

to counsel, making several arguments. None of his arguments

has merit.

a. Municipal Court’s Asserted Error in Denying

Defendant’s Marsden Motion without Sufficient

Inquiry

Defendant first contends his waiver of the right to counsel

was induced by the municipal court’s errors during his first

Marsden hearing on October 30, 1996, when he said that he did

not want that vigorous of a defense and added that he wanted

to plead guilty. He asserts that the court made no inquiry into

his intent to plead guilty or his conflict with counsel, and it then

permitted counsel to enter a not guilty plea despite defendant’s

stated desire to plead guilty. He argues that the court’s actions

placed him in an unconstitutional dilemma of either (1)

defending himself with counsel who would not “accede to his

fundamental and personal right to control his defense by

pleading guilty and pursuing a case for life at penalty,” or (2)

defending himself without counsel. In these circumstances, he

51

PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

argues, there was no valid waiver of the right to counsel. He

asserts that the unaddressed and unresolved conflict he had

with his counsel negated the required showing that his waiver

was voluntary and intelligent.

Defendant is wrong. After defendant made an oral

Marsden motion, the municipal court held a Marsden hearing in

chambers. The court started the hearing by asking defendant

to describe why he believed one or both of his attorneys were not

rendering competent or reasonable representation. Defendant

explained that he did not agree with “their idea of what they

want to do tactical-wise” and that he did not want them to call

witnesses over his objection. Defendant’s complaints regarding

trial preparation and strategy were tactical disagreements, as

defendant conceded in the hearing, which do not by themselves

constitute an irreconcilable conflict. (People v. Cole (2004) 33

Cal.4th 1158, 1192 (Cole); see People v. Bolin (1998) 18 Cal.4th

297, 334 [whether to call certain witnesses is a matter of trial

tactics].) Although the McCoy court acknowledged a defendant’s

fundamental right to choose the objective of his or her defense,

the court also acknowledged that it is defense counsel’s job to

determine how best to achieve a client’s objectives. (McCoy,

supra, __ U.S. at p. __ [138 S.Ct. at p. 1508].)

Defendant did not indicate to the municipal court that the

conflict he had with counsel was so serious that he would

consider representing himself just to terminate his relationship

with his current public defenders, nor did defendant say that his

conflict with counsel concerned whether or not to enter a guilty

plea. On the contrary, defendant’s main concern was about

whether certain witnesses would be called at the penalty phase.

When the municipal court said that the penalty phase was still

a long way off, defendant responded that it was not a long way

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Opinion of the Court by Chin, J.

off, because he planned to waive the preliminary hearing and

plead guilty, which meant the penalty phase would occur

relatively soon. He added that his dispute with counsel

concerned how to conduct the penalty phase. His counsel

wanted “to check all avenues,” and defendant didn’t want that.

He also said that he didn’t want to represent himself and allow

the prosecutor “to just walk all over me.” He continued, “I’m

going to keep these counsel. I’m not saying they are ineffective.”

Defendant’s comments contradict his assertion that his waiver

of the right to counsel was due to a conflict over whether he

should plead guilty. On the contrary, what he told the court was

that the conflict was over how the penalty phase should be

conducted, and the court acted within its discretion in finding

no irreconcilable conflict requiring counsel’s replacement.

b. Failure to Advise that Defendant Could Not

Plead Guilty

Defendant next contends his waiver was invalid because

the municipal court failed to advise him that even if he waived

his right to counsel, he still could not plead guilty. He notes that

his request to waive counsel “came one week after counsel was

allowed to thwart [his] stated intent to plead guilty,” suggesting

that the court should therefore have known that his reason for

waiving counsel was his desire to plead guilty. He points out

that section 1018 prohibits a capital defendant from pleading

guilty without consent of counsel, and he argues that court

failed to ensure he was aware of the rule.

“The requirements for a valid waiver of the right to

counsel are (1) a determination that the accused is competent to

waive the right, i.e., he or she has the mental capacity to

understand the nature and object of the proceedings against him

or her; and (2) a finding that the waiver is knowing and

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PEOPLE v. FREDERICKSON,

Opinion of the Court by Chin, J.

voluntary, i.e., the accused understands the significance and

consequences of the decision and makes it without coercion.”

(People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070.) “On

appeal, we examine de novo the whole record—not merely the

transcript of the hearing on the Faretta motion itself—to

determine the validity of the defendant’s waiver of the right to

counsel.” (Id. at p. 1070.)

Defendant here asserts, in effect, that the court did not

ensure he was aware of all of the disadvantages of self-

representation; namely, that he would not be able to plead guilty

because such a plea requires the consent of counsel under

section 1018. Defendant argues that the timing of his Faretta

request, made only one week after he attempted to plead guilty,

demonstrated that his request stemmed from a mistaken belief

that a guilty plea would be accepted after counsel was

discharged.

Defendant cites no authority for the proposition that when

a defendant waives the right to counsel, the trial court must

inform the defendant of every possible specific disadvantage

that might later flow from the waiver. Countless disadvantages

might result from a waiver of the right to counsel, and a trial

court could not possibly predict each of those disadvantages in

advance. Therefore, the trial court need only inform the

defendant in general terms of the most common disadvantages.

(See People v. Riggs (2008) 44 Cal.4th 248, 277–278 (Riggs);

People v. Lopez (1977) 71 Cal.App.3d 568, 572–573.)

Nor on this record was the municipal court made aware of

the need to inform defendant that he could not plead guilty if he

represented himself. On November 7, 1996, when defendant

made his oral motion to proceed in propria persona, he did not

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say anything about an intent to plead guilty. Quite the opposite:

Defendant’s only concern about representing himself was

whether he would have the ability to obtain funding for an

investigator to assist him. It is true that defendant had told the

court one week earlier, during the Marsden hearing, that it was

his plan to waive the preliminary hearing and plead guilty.

However, when the court arraigned defendant after the hearing,

counsel entered a plea of not guilty. Defendant then said, “Over

my objection,” but counsel clarified that defendant’s objection

related to the reading of the complaint, and defendant did not

dispute that point. Those facts do not support defendant’s

assertion that on the day of the Marsden hearing “counsel was

allowed to thwart [his] stated intent to plead guilty.”

A week later when defendant waived his right to counsel,

defendant’s actions were too ambiguous for the court to have

reasonably known that the reason he sought to represent

himself was that he wanted to plead guilty. Furthermore, when

defendant later learned that he would be unable to plead guilty

as a self-represented defendant, he reaffirmed his desire to

continue without counsel.

We conclude that the record “ ‘as a whole demonstrates

that the defendant understood the disadvantages of self-

representation, including the risks and complexities of the

particular case’ ” (Riggs, supra, 44 Cal.4th at p. 276), and that

because defendant did not make his intent clear, the municipal

court was not obligated to specifically inform defendant that he

would not be able to plead guilty if he waived his right to

counsel.

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c. Sufficiency of the Court’s Inquiry

Defendant further contends that the municipal court’s

Faretta inquiry was insufficient to support a valid waiver of the

right to counsel in a capital case. He asserts the court did not

specifically inquire into his understanding of capital case

proceedings and did not make him aware of the specific dangers

and disadvantages of proceeding without counsel in capital

proceedings or of the fundamental legal rights that would be

affected by proceeding without counsel. He also notes that his

Faretta form did not advise him of such disadvantages. We

conclude the court’s inquiry was sufficient.

As noted, the trial court could not possibly predict every

disadvantage that might flow from a waiver of the right to

counsel, and therefore it need only inform the defendant in

general terms of the most common disadvantages. We have

upheld warnings similar to those that defendant here received.

(Riggs, supra, 44 Cal.4th at pp. 277–278 [advisements were

adequate where record showed the defendant was aware that

defending himself against capital charges was a complex process

involving extremely high stakes and that his ability to defend

himself might be hampered by his incarceration and lack of

training]; People v. Blair (2005) 36 Cal.4th 686, 709–710

[advisements were adequate where record reflects that the

defendant understood the nature of the charged offense, the

nature of a capital proceeding and penalty phase, and was

advised by the court to receive help from a lawyer].)

On August 22, 1996, the municipal court discussed at

length with defendant his desire to plead guilty. Defendant

explained that he had been involved in several cases in the

criminal justice system and had previously represented himself

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Opinion of the Court by Chin, J.

against three felony charges, none of which went to jury trial.

He understood that he would be treated the same as an attorney

and would receive no special privileges. He affirmed that he

could read and understand English “very well” and that he had

a “healthy, clear mind.” On November 7, 1996, defendant

executed a written waiver of his right to counsel. The waiver

form emphasized that it was “almost always unwise to represent

yourself” and reminded defendant that he would be facing a

skilled and experienced prosecutor. During the oral colloquy,

defendant affirmed his awareness that he faced “murder with

special circumstances and [that] the maximum term is the death

penalty.”

The record here reflects that defendant was aware of the

charges against him, that he knew he faced both a guilt phase

and, if found guilty, a penalty phase, that he could expect to

have access to only limited resources due to his incarceration,

and that the assistance of an attorney was highly recommended.

The court’s inquiry was sufficient.

d. Requests to Reappoint Counsel

Defendant next asserts the trial court erred by failing to

address and grant his requests on January 23 and 27, 1997, for

reappointment of counsel.

The hearing on January 23 was an in camera hearing

before a superior court judge who was overseeing disbursement

of investigative funds under section 987.9. At the start of the

hearing, the court explained that it had received notice that

defendant had violated the terms of the order granting him jail

privileges. Defendant replied that he wished to plead guilty. He

expressed frustration with his lack of a working computer and

difficulty placing unmonitored phone calls. He explained that

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he did not want the government to “run over” him and did not

“want to play these games anymore.” He told the court that he

preferred to plead guilty and have the public defender’s office

reappointed to represent him during the penalty phase.

Defendant complained that he had to “keep coming to this court

and begging” for phone calls, materials, and investigation

reports and did not believe the court was sincere in its efforts to

assist him. Defendant asked insistently to “go public” and allow

him to change his plea. The court, which was addressing only

the disbursement of investigative funds under section 987.9,

said, “That part of the matter’s not before me.” As noted, the

court told defendant he would need to discuss his desire to

change his plea in the proper department, and the court offered

to help him do so. (See ante, p. __.)

Defendant returned to the superior court on January 27,

1997, for an in camera hearing on his alleged jail violation and

to further discuss his displeasure with his assigned investigator.

The court revoked defendant’s self-representation jail privileges

and closed the hearing by again offering to help defendant waive

his preliminary hearing and plead guilty, if that was what

defendant still wanted: “We will call [the municipal court judge

assigned to your case] and see if she can work it in sometime

late this morning, or sometime this afternoon.”

That afternoon, defendant appeared in the department of

the municipal court assigned to his case and asked to plead

guilty. As already discussed, the municipal court had no

authority to accept a guilty plea in a capital case. Instead, if

defendant insisted on pleading guilty, the court would need to

proceed with the preliminary examination, hold defendant to

answer, and then defendant would have to plead guilty in the

superior court. The prosecutor told defendant that the law

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Opinion of the Court by Chin, J.

prevented him from pleading guilty. The municipal court then

explained that the People were not prepared to waive the

preliminary hearing, and therefore there was no choice but to

proceed with that hearing. The court said, “I am going to

suggest that we terminate these proceedings today,” adding that

defendant should return on the day scheduled for the

preliminary hearing, having considered the matter further.

Defendant agreed with that solution.

A motion to abandon self-representation and have counsel

reappointed must be unequivocal. (People v. Lawrence (2009) 46

Cal.4th 186, 193 (Lawrence); see People v. Lewis and Oliver

(2006) 39 Cal.4th 970, 1002 (Lewis and Oliver).)

“Equivocation . . . may occur where the defendant tries to

manipulate the proceedings by switching between requests for

counsel and for self-representation, or where such actions are

the product of whim or frustration.” (Lewis and Oliver, supra,

39 Cal.4th at p. 1002.) A trial court’s denial of a Faretta

revocation request is reviewed for abuse of discretion.

(Lawrence, at p. 192.)

At the hearing on January 23, 1997, defendant did not

simply request to have counsel reappointed. Instead, he

expressed an intent first to plead guilty, and only then to have

counsel reappointed to handle the penalty phase. As already

discussed, however, in order to plead guilty, defendant needed

to proceed through the preliminary hearing (or waive it), be held

to answer in superior court, and then enter his guilty plea in

that court. The superior court, which was handling only

disbursement of investigative funds under section 987.9, did not

fail to address defendant’s request. The court appropriately

informed defendant that the matter of his pleading guilty was

not before it and that he needed to raise that issue in the proper

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Opinion of the Court by Chin, J.

department. It then arranged a hearing in the division of the

municipal court that was assigned to defendant’s preliminary

hearing. Because defendant’s request to have counsel

reappointed was expressly conditioned on his pleading guilty,

and because he could not plead guilty without proceeding

through the preliminary hearing (or waiving it), the court

properly directed defendant to the division of the municipal

court where he could begin that process.

On January 27, 1997, when defendant was before the

municipal court division that was handling his preliminary

hearing, defendant again requested to plead guilty, but he did

not repeat his request to have counsel reappointed. Because the

People were not willing to waive the preliminary hearing, the

court had no choice but to proceed with that hearing as

scheduled.

Contrary to defendant’s claim, the trial court did not fail

to address his request to plead guilty and have counsel

reappointed. Instead, it did what was within its power to assist

defendant. We conclude there was no error.

e. Waiver of Right to Counsel after Defendant Was

Held to Answer in Superior Court

Lastly, defendant asserts he did not validly waive counsel

on March 14, 1997, when the superior court took a second

Faretta waiver. The prosecutor requested this second waiver of

defendant’s right to counsel, because defendant’s previous

waiver was before the prosecution had formally declared its

intent to pursue the death penalty.

At the hearing on March 14, 1997, the superior court

advised defendant that he had the right to a speedy and public

trial, and the right to a trial by jury. The court also advised

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defendant that he had the right to use the court to subpoena

witnesses or records he might need and the right to confront in

open court all witnesses called to testify against him. The court

then noted that, according to a minute order dated February 28,

another judge had gone “through all this” with defendant.

Defendant clarified that “those were in camera hearings.” The

court asked, “Were all these rights explained to you at that

time?” In response, defendant said, “Yeah, I’m fully aware of my

rights. I’m making a knowing and intelligent waiver of my

rights. I understand that this is a death penalty case and that

the minimum term, mandatory minimum is life without the

possibility of parole. I am also aware that by pleading not guilty

and not guilty by reason of insanity, I could spend the rest of my

life in a mental institution if a jury so finds, but I’m willing to

fill out your petition here.” The court stated, “As long as this

has all been gone over with you by [the other judge], I’m

satisfied.” Defendant then signed the Faretta waiver for the

court.

Defendant contends the trial court’s failure to readvise

him of his rights violated section 987, subdivision (b), which

provides that if a capital defendant appears for arraignment

without counsel, the court shall inform him that he shall be

represented by counsel at all stages of the preliminary and trial

proceedings.

In People v. Crayton (2002) 28 Cal.4th 346, a noncapital

defendant waived his right to counsel in municipal court. After

the defendant was held to answer, the superior court did not

readvise him of his right at his subsequent arraignment, as is

required by section 987, subdivision (a). We held that when “a

defendant has been fully informed of his or her right to counsel

at all stages of the proceedings (including trial), and voluntarily

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and knowingly has invoked the right to represent himself or

herself throughout all the proceedings, the trial court’s failure

to provide a new advisement and obtain a renewed waiver at the

arraignment (as required by section 987) does not operate to

terminate or revoke the defendant’s validly invoked

constitutional right to represent himself or herself at trial.”

(People v. Crayton, at p. 365.) We further held that a trial court’s

error in failing to comply with section 987 was susceptible to a

harmless error analysis. (People v. Crayton, at p. 365.) We

noted that a review of the record will reveal whether, despite the

absence of an explicit advisement by the superior court at

arraignment, the defendant was aware that he or she had the

right to appointed counsel at subsequent proceedings and

whether an explicit advisement at the arraignment would have

been likely to lead the defendant to reconsider the decision to

represent himself or herself. (Ibid.)

The same rule applies to capital defendants under section

987, subdivision (b). Where, as here, the record reveals that the

defendant was aware that he had the right to appointed counsel

at subsequent proceedings and an explicit advisement at

arraignment would not have been likely to lead to the

defendant’s reconsidering his decision to represent himself, the

court’s failure to readvise the defendant is harmless beyond a

reasonable doubt. Defendant was well aware that he had the

right to appointed counsel at all stages. When the municipal

court took his Faretta waiver on November 7, 1996, the court

expressly stated that defendant’s motion “is to represent

yourself throughout the proceedings, prelim, pretrial, trial,

everything?” Defendant replied, “Yes, sir.” Defendant also

repeatedly reminded the court during in camera hearings that

he wanted to represent himself, that he was lead counsel on his

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case, and that he did not want the court to handle matters

through his advisory counsel. He also signed a second written

waiver of his Faretta rights. And when the court attempted to

readvise defendant of his rights, he told the court that he was

“fully aware” of his rights and was making a “knowing and

intelligent” waiver of those rights. We conclude that any

possible error was harmless under any standard.

B. Failure to Suppress Statements

Investigators first interviewed defendant shortly after his

arrest on June 14, 1996. Officer Mark Steen advised defendant

of his right to remain silent, that anything he said could be used

against him in court, of his right to have an attorney present

before or during any questioning, and that if he could not afford

an attorney, one would be appointed before

questioning. Following each advisement, Steen asked

defendant if he understood. To each question, defendant

replied, “Yes, sir.” Steen then proceeded to question defendant

about his involvement in the crime.

Early in the questioning, defendant said, “Hey, when am I

going to get a chance to call my lawyer. It’s getting late, and

he’s probably going to go to bed pretty soon.” Steen replied,

“Your lawyer? Well you can call your lawyer after we’re done in

our facility.” Defendant said, “Oh, okay. So what do we got to

do in our facility here?” Steen explained, “Well, we’re

conducting this interview.” When defendant asked if they could

finish the interview the following day, Steen replied, “Um, we

can continue talking tomorrow; however, we’re not going to

continue the interview.” Steen then continued asking defendant

about the murder.

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Eleven days later, on July 25, 1996, defendant sent

Officers Steen and Lozano a letter requesting to meet. The

investigators spoke with defendant at the jail on August 12,

1996. Lozano advised defendant that he was represented by the

public defender, who had invoked defendant’s right to remain

silent. Lozano asked if defendant would like to waive his right

to have an attorney present. Defendant replied, “I waive that,

and I have since fired him.”12 Lozano advised defendant of his

Miranda rights, and defendant signed a waiver. Lozano then

interviewed defendant.

On June 23, 1997, defendant filed a pretrial motion to

suppress his statements from the June 14 interview. He also

moved to dismiss the information on the grounds that his

confession was obtained in violation of Miranda, and without

the confession, there was insufficient evidence to hold him to

answer on the murder charge. On September 8, 1997, defendant

filed a motion to suppress both the June 14 confession and his

statements from the August 12 interview. He argued the

August statements “still carried the taint” of the June 14

interview at which the investigators engaged in misconduct by

failing to notify his counsel when he requested to speak with

them. Defendant further argued that his “known history of

mental illness and current treatment with psycho[tropic]

medications are factors to consider.”

At a hearing on September 26, 1997, the trial court denied

the motions. The court found that defendant’s statements

12

Actually, defendant had submitted, on July 16, 1996, a

handwritten motion requesting to proceed in propria persona.

Defendant later withdrew that request, but he then made a new

request, which the court granted on November 7, 1996.

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during the June 14 interview did not constitute a clear request

for an attorney. Rather, his inquiry into when he could call his

attorney indicated that he was “desirous of speeding up the

interview so he [could] call his lawyer when the interview was

over. There is certainly nothing close to a clear request for an

attorney.” The court found that because defendant initiated

contact before the August interview and signed written waivers

of the presence of counsel and of his Miranda rights, “defendant

can hardly complain that his statements were coerced,

involuntary, or in violation of his right to counsel.” The court

further found that defendant presented no evidence of any

mental defect that would preclude him from understanding and

waiving his rights.

Defendant asserts the trial court erred in failing to

suppress his statements from the June 14 interview because he

did not validly waive his right to counsel. He further asserts the

trial court erred in failing to suppress statements from the

August 12 interview because there was no break in the causal

chain from the erroneous first interrogation. Lastly, defendant

asserts that the state violated his Sixth Amendment rights “by

approaching appellant [on August 12] without first contacting

his attorney,” and he further asserts that his mental illness

affected his ability to waive his rights. We disagree.

In Miranda, supra, 384 U.S. 436, the United States

Supreme Court set forth prophylactic measures to protect an

individual’s right against self-incrimination from curtailment

under the “inherently compelling pressures” of custodial

interrogation. (Id. at p. 467.) A suspect “must be warned prior

to any questioning that he has the right to remain silent, that

anything he says can be used against him in a court of law, that

he has the right to the presence of an attorney, and that if he

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cannot afford an attorney one will be appointed for him prior to

any questioning if he so desires.” (Id. at p. 479.) After a suspect

has heard and understood these rights, he or she may waive

them. (People v. Tate (2010) 49 Cal.4th 635, 683.) The

prosecution, however, bears the burden of showing that the

waiver was knowing, voluntary, and intelligent under the

totality of circumstances. (People v. Linton (2013) 56 Cal.4th

1146, 1171; see Maryland v. Shatzer (2010) 559 U.S. 98, 104.)

On appeal, we view the evidence in a light most favorable

to the order denying the motion to suppress. (People v. Tully

(2012) 54 Cal.4th 952, 979.) “Moreover, the reviewing court

‘must accept the trial court’s resolution of disputed facts and its

assessment of credibility.’ ” (Ibid.)

In People v. Whitson (1998) 17 Cal.4th 229, a police officer

interviewed the defendant on three separate occasions. At the

beginning of each interview, the officer advised the defendant of

his rights under Miranda and asked whether he understood

them. Each time, the defendant responded that he did. The

officer then proceeded to question the defendant. (Id. at

pp. 237–239.) We concluded the defendant’s statements were

voluntary, noting that the record was devoid of any suggestion

that the police resorted to physical or psychological pressure to

elicit them. (Id. at pp. 248–249.) We concluded the defendant

was aware of the rights he was waiving and the consequences of

his decision to do so, observing that there was no evidence that

during any interview his judgment was clouded or otherwise

impaired. (Id. at p. 249.) We further concluded that the

defendant’s waiver was intelligent, noting that there was no

evidence that he lacked sufficient intelligence to understand his

rights or the consequences of waiving them. (Id. at p. 250.) We

held: “Although the police officers did not obtain

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an express waiver of defendant’s Miranda rights, decisions of

the United States Supreme Court and of this court have held

that such an express waiver is not required where a defendant’s

actions make clear that a waiver is intended.” (Ibid.; see North

Carolina v. Butler (1979) 441 U.S. 369, 374–375.)

As in Whitson, ample evidence supports a finding here

that defendant’s waiver was voluntary, knowing, and

intelligent. Officers Steen and Lozano explained each Miranda

right to defendant, after which he indicated that he understood.

Following a complete admonition, defendant began to discuss

his role in the murder. His actions made clear that a waiver was

intended.

Defendant also did not unequivocally invoke his right to

counsel when he subsequently asked, “Hey, when am I going to

get a chance to call my lawyer? It’s getting late, and he’s

probably going to go to bed pretty soon.” When a defendant has

waived his Miranda rights and agreed to speak with police, any

subsequent invocation of the right to counsel must be

unequivocal and unambiguous. (Davis v. United States (1994)

512 U.S. 452, 461–462.) “[A]fter a knowing and voluntary

waiver, interrogation may proceed ‘until and unless the suspect

clearly requests an attorney.’ ” (People v. Williams (2010) 49

Cal.4th 405, 427 (Williams).) Defendant’s statement that it was

getting late and his question about when he would get to call his

lawyer did not amount to an unequivocal and unambiguous

request for counsel. A reasonable officer in Steen and Lozano’s

position would have concluded that defendant’s remark

expressed concern over the length of the interview and a desire

to contact counsel when the interview was over. Defendant

never said that he wanted to stop the interview immediately and

consult counsel.

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We conclude that defendant’s statements from the June 14

interview were properly obtained. It follows that his subsequent

statements at the August 12 interview did not carry any taint

from the previous interview. Furthermore, the investigators

readvised defendant of his Miranda rights before beginning the

August 12 interview, and defendant signed a waiver.

Defendant’s contention that the August 12 interview

violated his Sixth Amendment right to counsel also fails. Officer

Lozano reminded defendant that the investigators were present

for the interview because defendant had initiated contact

through a letter indicating a desire to speak with them. While

advising defendant of his Miranda rights, Lozano said, “You are

being represented, at this point, that we know of, by a public

defender, okay, . . . who has invoked your right to remain silent

with the court. He’s filed papers to that effect, . . . that you are

just . . . [to] remain silent, okay? You have the right to have your

attorney . . . present while we talk to you, okay? Uh, . . . do you

wish to have him here at this time, or do you waive that right to

have that attorney . . . here at this time?” Defendant replied, “I

waive that, and I have since fired him.”13

“The Sixth Amendment guarantees the accused, at least

after the initiation of formal charges, the right to rely on counsel

as a ‘medium’ between him and the State.” (Maine v. Moulton

(1985) 474 U.S. 159, 176.) A suspect has the right, however, to

knowingly and intelligently waive the right to counsel,

especially if the accused himself initiates such communication.

(Patterson v. Illinois (1988) 487 U.S. 285, 291.) Defendant

13

As noted, defendant had filed a motion to proceed in

propria persona, but the court had not ruled on it. Defendant

later withdrew the motion.

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initiated contact with the investigators when he sent them a

letter requesting to meet. He was then thoroughly advised of

his right to have counsel present during the interview, and he

unequivocally waived that right. Moreover, his waiver was not

invalidated by his asserted mental illness. Defendant relies on

a declaration he submitted to the trial court with his motion to

suppress, in which a psychologist declared that defendant was

“mentally ill” and that his letter requesting a meeting with the

investigators “was a product of this deteriorated mental state.”

On review of this declaration, the trial court expressed concern

over the lack of cross-examination by the People and found that

the psychologist’s statement was “a legal conclusion that would

not be admissible, as it is without foundation.” In its written

order, the trial court stated that defendant failed to present

evidence of any mental defect that would prohibit him from

waiving his rights.

The record does not demonstrate that defendant failed to

understand or validly waive his rights. We conclude that

substantial evidence supports the trial court’s findings.

C. Failure to Suppress Evidence

Santa Ana Police Corporal Richard Reese testified at trial

that he arrested defendant on the evening of June 14, 1996.

After the arrest, Reese and other law enforcement personnel

conducted a parole search of defendant’s camper. They located

a .32-caliber revolver in its holster, hidden under a blanket.

Reese testified that they found five live rounds in the revolver.

Defendant objected and asked the trial court to strike

Reese’s testimony. Outside the jury’s presence, defendant

explained the basis of his objection: “No probable cause for the

search. The evidence that he’s attempting to introduce is the

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object of an illegal search and seizure. I believe that Officer —

Corporal Reese testified that the defendant was already in

custody [and hence no longer on parole], and . . . I believe that

there was no exigent circumstances for them to conduct a search

without a search warrant. They could have obtained a search

warrant, so on and so forth.” The prosecutor replied that if

defendant wanted to suppress the evidence of the search, “he

had ample time before the proceedings” to do so. He argued the

search was actually conducted by parole agent Jan Moorehead

pursuant to a parole condition. The prosecutor explained that

he “did not want to raise the specter of a parole search” before

the jury, and he had only vaguely questioned Reese as to

whether other investigators were present, so as not to reveal to

the jury that defendant was on parole. Defendant replied that

he was in custody at the time of the search and no longer on

parole.

The court stated that the objection was “extremely tardy”

and asked defendant why he waited until mid-trial to raise the

issue. Defendant explained that he was under the assumption

that the officers had conducted the search pursuant to a

warrant, but he realized after Reese’s testimony that they did

not have a warrant. The prosecutor responded that an evidence

list from the parole search had listed a revolver, holster, and

bullets, thus informing defendant that the gun was found during

the parole search, not during a later search of the same camper,

done pursuant to a warrant.

The court denied defendant’s motion, stating: “If there’s

nothing in any of the discovery to indicate that the weapon was

taken during a search pursuant to a warrant, I’m somewhat

confused as to how you would not be aware that it was taken by

Corporal Reese during his search of the camper.” Defendant

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explained that the documents confused him and that he did not

purposefully wait to make the argument. The court replied,

“The problem presented here is that if I were to allow this

motion to be heard at this time, it would be granting favoritism

to an individual who decided to represent himself. I don’t

believe that it’s fair to the process of justice to do that. The

defendant, having chosen to represent himself, is bound to know

the rules and procedures. I frankly can’t see any justification

for waiting mid-trial to make a motion to suppress.”

Section 1538.5, subdivision (a), provides that a defendant

may move to suppress as evidence any tangible thing obtained

as a result of an illegal search or seizure. A defendant is not

permitted to raise a search and seizure issue for the first time

during trial, however, unless the opportunity for the motion did

not previously exist or the defendant was not aware, prior to

trial, of the grounds for the motion. (§ 1538.5, subd. (h); People

v. Brooks (1980) 26 Cal.3d 471, 476.)

We conclude that sufficient evidence supported the trial

court’s finding that defendant’s motion to suppress the evidence

was untimely. The discovery provided to defendant clearly

indicated that the gun was located during Reese’s post-arrest

search of the camper, not during the subsequent execution of the

search warrant. Defendant said the paperwork confused him;

he did not claim, however, that he had been provided erroneous

or incomplete pretrial discovery and therefore was incapable of

discovering the grounds for his motion. Defendant’s failure to

bring his motion to suppress prior to trial therefore does not fall

within the exceptions recognized in section 1538, subdivision

(h).

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D. Disclosure of Reporter’s Unpublished Notes

Defendant contends the trial court violated his right to

obtain evidence when it refused to require a reporter to disclose

her notes from her jailhouse interview with him. He asserts

application of the newsperson’s shield law (Cal. Const., art. I,

§ 2, subd. (b); Evid. Code, § 1070) limited his ability to challenge

testimony from Marla Jo Fisher, a reporter with the Orange

County Register (the Register).

On June 15, 1996, the day after defendant’s arrest, Fisher

visited the jail to conduct an interview. After Fisher identified

herself to defendant and explained the purpose of her visit, he

agreed to speak with her. He admitted that he was attempting

to rob the HomeBase store and that he shot Wilson. The

following day, the Register published an article containing

several statements and admissions from defendant.

The prosecution subpoenaed Fisher to testify at trial.

Defendant in turn subpoenaed the Register for any notes and

materials it had regarding Fisher’s interview. The Register

provided a copy of the published article. After defendant argued

that the Register wanted to “quash the unpublished” notes, the

trial court issued an order to show cause why the Register

should not produce the requested documents. In response, the

Register, on its own behalf and on behalf of Fisher, moved for a

protective order limiting the scope of subpoenas to information

not protected under the California reporter’s shield law and also

the First Amendment to the United States Constitution.

Defendant opposed the motion, arguing that statements he

made during the interview would establish mitigating

circumstances relative to the penalty determination, might

establish that the murder was not in furtherance of a robbery,

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and might be relevant for the sanity phase. He further argued

that Fisher published his statements out of context, and he

needed the ability to impeach her credibility and to show that

she was acting as a government agent.

At a hearing on the matter, the court concluded that

defendant could cross-examine Fisher regarding the

circumstances surrounding the interview, including statements

he may have made that were not published. The court also

concluded, however, that it would not order Fisher to turn over

her notes at that time, stating that making such an order would

depend on her testimony and whether she relied on those notes

in refreshing her recollection while testifying.

The trial court then conducted another hearing before

Fisher testified to determine whether she would be using any

unpublished notes to refresh her recollection. Attorney Alec

Barinholtz appeared on behalf of Fisher and the Register’s

parent company. Fisher did not testify regarding whether she

had taken notes during her interview with defendant. Rather,

she said that prior to coming to court, she had refreshed her

recollection by reviewing the published newspaper article and

watching a videotape of a televised interview. The court ruled

that because Fisher did not rely on any notes to refresh her

recollection, any notes she may have taken were shielded by law.

The court concluded that defendant could “inquire about

matters that were discussed during his interview with her. . . .

Well, anything that he recalls that he wants to talk to her about

that occurred during the course of the interview is subject to be

examined upon.”

Article I, section 2, subdivision (b) of the California

Constitution provides, as relevant to this case, that a

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“reporter . . . shall not be adjudged in contempt by a judicial,

legislative, or administrative body . . . for refusing to disclose

any unpublished information obtained or prepared in gathering,

receiving or processing of information for communication to the

public.” The constitutional provision is codified in section 1070

of the Evidence Code. This law, known as the “shield law,”

“protects a newsperson from being adjudged in contempt for

refusing to disclose either: (1) unpublished information, or (2)

the source of information, whether published or unpublished.”

(Delaney v. Superior Court (1990) 50 Cal.3d 785, 797 (Delaney).)

A newsperson’s immunity, however, must yield to a criminal

defendant’s constitutional right to a fair trial. (Id. at p. 805;

People v. Charles (2015) 61 Cal.4th 308, 325 (Charles).) “ ‘In

order to compel disclosure of information covered by

the shield law, the defendant must make a threshold showing of

a reasonable possibility that the information will materially

assist his defense. The showing need not be detailed or specific,

but it must rest on more than mere speculation.’ ” (People v.

Ramos (2004) 34 Cal.4th 494, 526 (Ramos).)

We have previously “set forth a number of factors to guide

the trial court in balancing the interests of a criminal defendant

seeking to overcome the immunity granted by

the shield law with the newsperson’s interests. Those factors

are: (a) ‘whether the unpublished information is confidential or

sensitive’; (b) whether ‘the interests sought to be protected’ by

the law would be thwarted by disclosure; (c) ‘the importance of

the information to the criminal defendant’; and (d) ‘[w]hether

there is an alternative source for the unpublished information.’ ”

(Charles, supra, 61 Cal.4th at p. 325; see Delaney, supra, 50

Cal.3d at pp. 810–811.)

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Defendant asserts that the shield law should not apply

because he was both the source of the unpublished information

and the person seeking its disclosure. In Delaney, supra, 50

Cal.3d 785, we acknowledged that when “the criminal defendant

seeking disclosure is himself the source of the information, it

cannot be seriously argued that the source (the defendant) will

feel that his confidence has been breached. The reporter’s news-

gathering ability will not be prejudiced.” (Id. at pp. 810–811.)

Before the court may weigh the interests sought to be

protected by the shield law, however, the defendant must first

make the threshold showing that there is a reasonable

possibility that the information will materially assist his

defense. In Ramos, supra, 34 Cal.4th 494, a newspaper reporter

interviewed the defendant about the charges pending against

him. The newspaper published the interview. When the

prosecution subpoenaed the reporter, he filed a motion to quash

on the ground that the information the prosecution sought was

protected by the shield law. (Id. at p. 523.) Following an in

camera hearing, the trial court decided the defense could cross-

examine the reporter on his observations of the defendant’s

mental status and demeanor, but it did not require the reporter

to produce his notes of the interview. (Id. at p. 524.)

We concluded that the defendant’s assertion that the

reporter’s notes were material to his defense was mere

speculation. (Ramos, supra, 34 Cal.4th at p. 527.) The

defendant had not established that the notes contained

anything different from the reporter’s testimony, and the record

did not suggest the notes contained anything of substance that

the jury had not already heard. (Ibid.) Because the defendant

failed to meet the threshold showing, we did not balance the

Delaney factors to determine whether disclosure was required,

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and we found the trial court did not abuse its discretion in using

the shield law to protect the reporter’s notes. (Ibid.)

Here, defendant has likewise failed to make a threshold

showing that there was a reasonable possibility, beyond mere

speculation, that the information contained in Fisher’s notes

would have materially assisted his defense. Indeed, he has not

established that such notes even existed. Although he asserted

in his motion that he had been misquoted in various passages of

the article, the statements attributed to him in the article were

consistent with his statements to the investigators. Defendant’s

vague assertion that he needed the notes to “test her credibility”

does not show a reasonable possibility that the notes would have

materially assisted his defense. He has not made an adequate

showing that any notes made by Fisher contained anything

different from her testimony or from what the jury had already

heard.

Further, the trial court permitted defendant to cross-

examine Fisher on “all of the circumstances” surrounding the

interview, including statements defendant may have made that

were not published. As the court told defendant during the

hearing, “Considering the interview was of you, I think there is

significant areas of testing the credibility available to you.”

The trial court likewise did not err when it denied

defendant’s motion to strike Fisher’s testimony. For the reasons

discussed above, defendant was not, as he asserts, unable to

effectively cross-examine Fisher without her notes.

E. Instructional Error

1. Instruction on First Degree Murder

Defendant contends that the instructions permitting him

to be convicted of first degree murder on a theory of either

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premeditated murder or felony murder violated his rights under

the Eighth and Fourteenth Amendments to the federal

Constitution because he was not charged with first degree

murder. He asserts that because he was charged only with

second degree murder under section 187, he cannot be found

guilty of first degree murder. He further asserts that the trial

court committed reversible error by failing to require the jury to

unanimously agree on the theory of first degree murder. We

have repeatedly rejected substantially similar claims and do so

again here. (People v. Geier (2007) 41 Cal.4th 555, 592; Cole,

supra, 33 Cal.4th at p. 1221; People v. Hughes (2002) 27 Cal.4th

287, 369; People v. Kipp (2001) 26 Cal.4th 1100, 1132; People v.

Silva (2001) 25 Cal.4th 345, 367; People v. Carpenter (1997) 15

Cal.4th 312, 394–395.) Defendant offers no persuasive reason

to revisit these holdings.

2. Attempted Robbery–Murder Instruction

Defendant contends the trial court erred when it

instructed the jury on attempted robbery–murder. He asserts

the instruction was “tantamount to a directed verdict on the

issue of whether the killing occurred during the commission of

attempted robbery, because the undisputed evidence showed

that [he] fatally shot the victim long before he had reached a

place of ‘temporary safety.’ ”

The court instructed the jury in the language of CALJIC

Nos. 8.21: “The unlawful killing by a defendant of a human

being, whether intentional, unintentional or accidental, which

occurs during the commission or attempted commission of the

crime of robbery is murder of the first degree when the

perpetrator had the specific intent to commit that crime.” It also

instructed the jury in the language of CALJIC No. 8.21.1: “For

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the purposes of determining whether an unlawful killing has

occurred during the commission or attempted commission of a

robbery, the commission of the crime of robbery is not confined

to a fixed place or a limited period of time. An attempted

robbery is still in progress after the attempted taking of the

property while the perpetrator is fleeing in an attempt to escape.

Likewise it is still in progress so long as immediate pursuers are

attempting to capture the perpetrator. An attempted robbery is

complete when the perpetrator has eluded any pursuers and has

reached a place of temporary safety.”

Defendant asserts that the evidence showed the

attempted robbery and murder were two distinct crimes, not one

continuous transaction, and that the instruction erroneously

removed a factual issue from the jury’s consideration by

directing the jury to conclude that the attempted robbery was

still in progress when he shot the victim. He relies on People v.

Sakarias (2000) 22 Cal.4th 596 (Sakarias). In that case, the jury

asked the court for clarification regarding when a burglary

begins and ends. The court responded, “ ‘Although it is alleged

that the killing in the present case occurred sometime after it is

alleged the defendant entered the house, if the jury finds that

the defendant committed burglary by entering the house with

the intent to steal, the homicide and the burglary are parts of

one continuous transaction.’ ” (Id. at p. 623.) In Sakarias, we

concluded that the trial court’s response relieved the jury of its

obligation to determine whether all the elements of first degree

murder and the burglary-murder special circumstance had been

proven beyond a reasonable doubt, but we further concluded

that the error was harmless. (Id. at pp. 624–625.)

Subsequent to our decision in Sakarias, we have held

CALJIC No. 8.21.1 to be a correct statement of the law. (People

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PEOPLE v. FREDERICKSON,

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v. Debose (2014) 59 Cal.4th 177, 204–205.) Defendant concedes

that CALJIC No. 8.21.1 “may be a proper instruction under

appropriate circumstances,” but he asserts that the instruction

was erroneous in this situation. He is mistaken. In Sakarias,

the trial court’s written response to the jury’s question was

erroneous because it did not instruct the jury that it must decide

for itself whether the homicide and burglary were part of a

single continuous transaction. (Sakarias, supra, 22 Cal.4th at

p. 626.) The CALJIC No. 8.21.1 instruction given here did not

suffer from the same flaw. The jury was left to decide whether

the attempted robbery was complete before the murder took

place.

3. Special Circumstance Instruction

Defendant contends the trial court erroneously instructed

the jury on the special circumstance allegation of attempted

robbery–murder. He contends that the instruction, combined

with CALJIC No. 8.21.1, permitted the jury to find the special

circumstance true without finding that he killed the victim

while engaged in an attempted robbery. We reject the claim.

Over defendant’s objection, the trial court instructed the

jury using a modified version of CALJIC No. 8.8.17 as follows,

with the modified portion in italics: “To find that the special

circumstance, referred to in these instructions as murder in the

commission of attempted robbery, is true, it must be proved:

1. The murder was committed while the defendant was engaged

in the attempted commission of a robbery, or the murder was

committed during the immediate flight after the attempted

commission of a robbery by the defendant and 2. The murder

was committed in the course of the commission of the crime of

attempted robbery or to facilitate the escape therefore or to

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avoid detection. In other words, the special circumstance

referred to in these instructions is not established if the

attempted robbery was merely incidental to the commission of

the murder.”

The standard jury instruction at the time of trial read,

“The murder was committed in order to carry out or advance the

commission of the crime . . . .” (Italics added.) Defendant

asserts that the evidence supported instructing the jury with the

standard “carry out or advance” language, because the jury

could have reasonably concluded that any intent to steal no

longer existed when he shot the victim. We have previously

held, however, that there “is nothing magical about the phrase

‘to carry out or advance’ the felony. Indeed, we ourselves have

stated the requirement without using that phrase.” (People v.

Horning (2004) 34 Cal.4th 871, 908.) We reiterated in Horning

that if the felony was merely incidental to the murder, no

separate felony-based special circumstance exists, and the

instruction’s explanation that the robbery must not be “ ‘merely

incidental to the commission of the murder’ ” adequately

conveys this requirement. (Ibid.) Because the court properly

instructed the jury that it could not find the special

circumstance true if it found the robbery to be merely incidental

to the commission of the murder, there was no error.

4. Proof Beyond a Reasonable Doubt

Defendant contends the instructions on circumstantial

evidence (CALJIC Nos. 2.01, 2.02, 8.83, 8.83.1) diluted the proof-

beyond-a-reasonable-doubt standard because they “informed

the jurors that if [he] reasonably appeared to be guilty, they

could find him guilty even if they entertained a reasonable doubt

as to guilt.” We have previously rejected similar challenges to

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these instructions. (People v. Brasure (2008) 42 Cal.4th 1037,

1058.) Defendant offers no persuasive reason for us to revisit

our precedent.

5. Flight Instruction

Defendant raises three challenges to the trial court’s

instruction on flight, CALJIC No. 2.52.

He first asserts the instruction was unnecessary because

it was duplicative of the general jury instructions regarding

circumstantial evidence, citing CALJIC Nos. 2.00, 2.01, and

2.02. We have previously rejected this claim, concluding:

“ ‘CALJIC Nos. 2.00, 2.01, and 2.02 instruct[] the jury on the

definition of circumstantial evidence and its sufficiency in

establishing facts to establish guilt. On the other hand, CALJIC

No. 2.52 [is] a cautionary instruction that benefit[s] the defense

by “admonishing the jury to circumspection regarding evidence

that might otherwise be considered decisively inculpatory.”

[Citation.]’ ” (People v. Leon (2015) 61 Cal.4th 569, 608.)

Defendant next contends the instruction was

impermissibly argumentative in light of People v. Mincey (1992)

2 Cal.4th 408, which he contends rejected, as argumentative, an

instruction structurally similar to CALJIC No. 2.52. We have

described the instruction in Mincey, like that in CALJIC No.

2.52, as having an if/then structure: “ ‘If [certain facts] are

shown, then you may [draw particular conclusions].’ ” (People v.

Bonilla (2007) 41 Cal.4th 313, 330.) We explained in Bonilla,

however, that the structure of the instruction given in Mincey

was not problematic. Rather, the Mincey instruction was flawed

because it contained argumentative language that focused on

the defendant’s version of the facts, not his legal theory of the

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case. (Bonilla, at p. 330.) In Bonilla, we also rejected the

defendant’s argument that CALJIC No. 2.03, another

consciousness of guilt instruction, was argumentative simply

because it, too, contained the if/then structure. (Bonilla, at p.

330.) For the same reason, we reject defendant’s argument here.

Lastly, defendant asserts that the instruction permitted

the jury to draw an impermissible inference concerning his guilt.

We have previously rejected this contention (People v. Bryant,

Smith and Wheeler (2014) 60 Cal.4th 335, 438; People v. Rundle

(2006) 43 Cal.4th 76, 153–154), and defendant presents no

compelling reason to reconsider these decisions.

6. Motive Instruction

Defendant contends the trial court erred in instructing the

jury with CALJIC No. 2.51, regarding motive, because it

improperly allowed the jury to determine guilt based upon the

presence of an alleged motive and thus shifted the burden of

proof to the defense. We have repeatedly rejected substantially

similar contentions, and we do so again here. (People v. Nelson

(2016) 1 Cal.5th 513, 552–553; People v. Capistrano (2014) 59

Cal.4th 830, 876–877.)

III. PENALTY PHASE ISSUES

A. Refusal of Defendant’s Requested Jury

Instructions

1. Instructions on Aggravating Factors

Defendant contends the trial court erred when it refused

his proposed instruction that would have informed the jurors

that they could not double-count the facts underlying the special

circumstance. The proposed instruction read: “You must not

consider as an aggravating factor the existence of any special

circumstances if you have already considered the facts of the

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