Filed 6/21/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S105908
           v.                        )
                                     )
JOHN SAMUEL GHOBRIAL,                )
                                     )                       Orange County
           Defendant and Appellant.  )                   Super. Ct. No. 98NF0906
____________________________________)


        A jury found defendant John Samuel Ghobrial guilty of the first degree
murder of Juan Delgado, a 12-year-old boy, and found true the special
circumstance that the murder was committed while defendant was engaged in the
commission of a lewd and lascivious act on the child. (Pen. Code, §§ 187,
subd. (a), 190.2, subd. (a)(17)(E), 288.) Following the penalty phase, the jury
returned a death verdict and the trial court entered a judgment of death. This
appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd.
(b).) We affirm the judgment.
                                       I. FACTS

                A. Guilt Phase
        On March 21, 1998, the partial remains of Juan Delgado were discovered
near the address where defendant was then living. Defendant admitted that he
killed Delgado, but denied that the murder was premeditated or deliberate. He




                                         1
also denied that the murder was committed in the course of a lewd and lascivious
act on the child.

                    1. Prosecution case
       In March 1998, Delgado was a sixth grader at Washington Middle School
in the City of La Habra. Defendant, who lived in a rented shed in La Habra,
frequently was found panhandling in a commercial area of the city. Delgado and
defendant were acquainted. A classmate, Armando Luna, recalled that he and
Delgado saw defendant begging for food sometime in December 1997, and that
Delgado had purchased a Snickers bar for defendant. On another occasion, in late
February or early March 1998, Alfonso Solano saw Delgado and defendant
“horsing around” outside a market and liquor store. Solano recognized defendant
from defendant’s earlier panhandling in the neighborhood; defendant is
particularly distinctive because one of his arms had been amputated following an
accident that had occurred many years before the murder. Solano did not know
Delgado, but Delgado approached him as he exited the liquor store and whispered
to him in Spanish, “ ‘Señor, sir,’ . . . ‘he is going to kill me.’ ” Solano then heard
defendant tell Delgado in English, “ ‘I am going to kill you. I will kill you and eat
your pee-pee.’ ”
       Delgado was last seen on March 18, 1998. Another classmate, Josefina
Gomez, saw Delgado walking with defendant behind her family’s restaurant that
afternoon. Defendant was holding Delgado by the hand. Gomez knew Delgado
from school, and he greeted her as he walked towards an alleyway with defendant.
       Early in the morning on Thursday, March 19, at about 12:30 a.m.,
defendant visited a Super Kmart in La Habra. He purchased a stockpot, cutting
boards, knives, and pans. According to the cashier, Yvette Trejo, the entire
transaction took about 15 minutes because defendant paid in small bills and



                                           2
change, left the checkout line several times to seek out additional items, and asked
her to ring up the items in separate transactions.
       Later that same day, defendant went to a Home Depot in La Mirada, where
a store employee, Alan Hlavnicka, helped him pick out bags of concrete and tools
for mixing it. Hlavnicka estimated that he spent about 30 minutes speaking with
defendant. Defendant asked Hlavnicka for a ride home, because he was
purchasing several large, heavy items. Hlavnicka was unable to leave during his
shift, but offered to drive defendant home later if he waited for Hlavnicka’s lunch
break. Defendant paid a cashier for the items and checked out at about 1:30 p.m.
       Hlavnicka did not see defendant leave the store, but at approximately 2:45
p.m. that afternoon, Rene Hojnacki saw him pushing a shopping cart down
Imperial Highway. Because it was a hot day, she initially offered him a ride.
When she realized she could not fit his belongings in her car, she gave him some
money for a cold drink and drove away. She told him she would return to give
him a ride later, but she did not see him when she drove through the area later that
afternoon.
       Between 3:00 and 3:30 p.m. that afternoon, Steven Mead saw an older man
drop defendant and his belongings off at the construction site in La Habra where
Mead was working. The man asked Mead to give defendant a ride, and Mead
eventually agreed. Mead moved concrete, wire, and a variety of tools that the
older man had unloaded when dropping defendant off into his pickup truck. Mead
then drove while defendant gave him directions. When Mead asked why
defendant was transporting such large items without his own car, defendant
demurred, telling Mead he had no means of transportation but needed money to
feed four children. Mead observed that defendant did not speak English very well,
was sweating profusely, and smelled like he was wearing cologne. Mead dropped



                                          3
defendant off at his destination and helped defendant unload his purchases onto
the curb.
       At about 11:40 p.m. the following night, March 20, Gina Thompson was
driving down Walnut Street in La Habra and saw someone using one arm to push
a heavy shopping cart down the sidewalk. The cart contained two box-shaped
objects, one of which had something sticking out of it. Between 11:30 p.m. and
midnight that same night, Jose Madrigal was standing outside his home and saw
defendant turn onto Highlander Avenue from Walnut Street pulling an empty
shopping cart down the sidewalk. Madrigal recognized defendant because he had
seen him panhandling outside a local supermarket.
       The next morning, March 21, Lorenzo Estrada found a concrete cylinder
dripping with blood on his front lawn. Estrada’s home is approximately one block
north and one block west of Madrigal’s home. When the police picked up the
cylinder later that day, the concrete had not yet set. Estrada did not recall seeing
the cylinder when he returned home between 1:15 and 1:30 a.m. earlier that
morning.
       On the street outside Estrada’s home and in his neighbors’ yards,
investigators found wire, wood, a red Target basket, a blue plastic jug, a thong
sandal, and a shopping cart containing cement. Across the street, they found wet
cement on the ground with what appeared to be a track running through it.
Defendant lived in a rented shed behind the main house at that address. Another
concrete cylinder was found a few blocks away on Walnut Street.
       Later that day, law enforcement officers brought both concrete cylinders to
the coroner’s office and broke them apart. Each contained portions of Delgado’s
remains, some of which were wrapped in black plastic bags. Delgado’s lower
abdomen and pelvis were missing and not located for a full year, when a third



                                          4
concrete cylinder was found behind an abandoned convalescent hospital less than
two blocks east of the shed where defendant lived.
       Defendant checked into the La Habra Motel the evening of March 21. He
checked out between 7:00 and 8:00 a.m. the next day. He was arrested shortly
thereafter.
       Following defendant’s arrest, law enforcement searched defendant’s shed
and found a number of tools, including a saw, a saw blade, scissors, a knife, a
bloody cleaver, bolt cutters, a trowel, a capping tool, tin snips, latex gloves, and a
black stockpot with cement inside, as well as packaging for some of these items.
Defendant’s fingerprints were found on several of the items, including the
stockpot, the capping tool, and the packaging for the cleaver. There was wet
cement on the floor, as well as blood on the carpet, the dresser, a wall, a quilt, and
a blanket. The investigators also found some pornography, black trash bags,
receipts for defendant’s purchases at Super Kmart and Home Depot, a thong
sandal that matched the one found in the street, some shoes and clothing, and a
detention slip and paperwork with Delgado’s name on it. Jorge Delgado, Juan’s
brother, identified the shoes and clothing as his brother’s.
       Dr. Aruna Singhania performed an autopsy on March 22. She testified that
Delgado’s head had been severed with irregular, jagged cuts, and the arms and
legs had also been severed. Dr. Singhania observed trauma to the left eye that was
consistent with choking or asphyxiation, but she did not identify a specific cause
of death.
       The following year, when a third concrete cylinder containing remains of
Delgado’s lower abdomen and pelvic section was found, Dr. Singhania performed
another autopsy. She observed that the penis and scrotum had been severed and
were missing, as were the internal genitalia. She did not observe any tearing or



                                           5
trauma in the anus. The remains were covered in concrete and showed signs of
decomposition. The victim’s genitalia were never found.
         At the time of the initial investigation, in 1998, law enforcement personnel
were able to extract DNA from some of the blood found in the shed. Later
analysis revealed that the blood in the shed was not defendant’s and matched
Delgado’s DNA profile. The DNA specialist who performed the analysis testified
that the statistical probability of a random match is less than one in one trillion.
When the third cylinder was found a year later, investigators were unable to
extract DNA samples for analysis from the pelvic region because of the
decomposition of the tissue.
         Aimee Yap, a forensic scientist with the Orange County Sheriff’s Crime
Laboratory, reviewed anal swabs taken from the pelvic remains for semen.
Though a protein test did not reveal P30, a protein found in semen, Yap testified
that that particular protein is unstable and can break down quickly. She further
testified that she did identify sperm cells when she reviewed the swabs under a
microscope. Yap identified the sperm cells based on the shape of intact sperm
heads and through a staining process that revealed a particular distribution of
nuclear material consistent with the structure of sperm cells. She acknowledged
that the sperm tails were not visible, but explained that sperm tails are very fragile
and break off easily, so the absence of tails did not affect her conclusion.

                   2. Defense case
         The defense presented evidence that Delgado avoided spending time at
home. For example, one evening in February 1998, Delgado visited his classmate
Juan Duarte at home and asked if he could spend the night. Duarte’s father told
Delgado he could not stay, but offered to take him home, and Delgado refused the
offer.



                                           6
        On the afternoon of March 17, Delgado told his classmate Armando Luna
that he did not want to go home because he was afraid of his mother. That same
afternoon, Delgado attended soccer practice at school and began walking home
with his classmate and teammate Cipriano Flores. Delgado asked if he could
come over, indicating that he did not want to go home because his mother would
“hit him or spank him,” and asked if he could spend the night. Delgado came
over, ate dinner with Flores and his sisters, and fell asleep at Flores’s apartment.
The next morning, Flores’s mother drove her children to school, but Delgado did
not ride to school with them, nor did he attend school or soccer practice that day.
        On his walk home from soccer practice that afternoon, Flores ran into
Delgado, and Delgado asked if he could come over again. Delgado went home
with Flores and urged Flores to tell his mother that Delgado’s parents were in Los
Angeles so he could sleep over. Flores’s mother drove Delgado home that
evening and watched him go inside. That was the last time Flores and his mother
saw Delgado.
        Several witnesses testified to the victim’s and defendant’s whereabouts in
March 1998. Employees of Juan Pollo Chicken, a restaurant in La Habra, saw
Delgado at the restaurant on March 16 and 18. Juan Duarte, Delgado’s classmate,
saw him at a local Pic-N-Save store with defendant a couple of weeks before
Delgado’s death. Defendant was at that same Pic-N-Save on March 19, between
5:00 and 5:30 p.m., and handed a religious flyer to an employee.
        Elizabeth Thompson, a forensic scientist with the Orange County Sheriff’s
Crime Laboratory, was present for Dr. Singhania’s autopsy of Delgado’s pelvic
region in March 1999. Thompson testified that Dr. Singhania had observed during
the autopsy that the victim’s body had not been dismembered until he was already
dead.



                                          7
       David Posey, a private forensic pathologist, reviewed slides of the anal
swabs prepared by Aimee Yap, and reviewed Yap’s pictures of the swabs. He
described his approach to identifying sperm, which requires the presence of both a
neck and a tail, and testified that the Federal Bureau of Investigation follows the
same protocol. Because the cells found in the swabs did not have necks or tails, he
did not identify sperm in the samples.

                  3. Prosecution’s rebuttal evidence
       Edwin Jones, a forensic scientist with the Ventura Sheriff’s Crime
Laboratory, also reviewed the slides that Yap had prepared. Jones identified the
same sperm cells that Yap did, as well as several others, based on the cells’ shape
and differential staining. He criticized the methodology that Posey had used to
identify sperm cells and testified that the FBI’s protocol, which requires the
presence of both a sperm head and tail to identify a sperm cell, does not reflect
modern science.

          B. Penalty Phase

                  1. Prosecution’s case in aggravation
       Defendant’s cousin, M.F., testified that defendant sexually molested him
and stabbed him when M.F. was six years old. The incident took place at M.F.’s
older sister’s wedding in Egypt in 1993. M.F. testified that defendant asked him
to go get some “sweet[s]” with him, and when they had walked away from the
house, defendant told M.F. to take his clothes off. When M.F. refused, defendant
tied him up. Defendant then attempted to rape him, stepped on his head, stabbed
him a number of times and punched him, causing permanent injury to his jaw.
       The prosecution presented testimony from Delgado’s parents describing the
negative effect the loss of their son had on them and on their other children.




                                          8
                 2. Defendant’s case in mitigation

                         i. Testimony from defendant’s family
       Defendant was born and raised in Egypt and moved to the United States as
an adult. Defendant’s father, Samwiael Ghobrial, described his son as a fairly
isolated child and an unsuccessful student. He testified that their family is
Christian, and in Egypt, Christian children are routinely attacked by Muslim
children in schools. On one occasion in elementary school, another student
stabbed defendant with a geometric compass.
       Samwiael1 testified that defendant sustained head injuries when he was a
young child. Samwiael also described his son’s emotional problems: Defendant
would regularly mirror Samwiael’s emotions, smiling when Samwiael smiled, and
crying when Samwiael cried, and defendant was constantly shaking or shivering.
When defendant was in junior high, defendant’s mother told him there was ancient
treasure buried in their area. For a number of years, defendant was fixated on the
possibility of finding gold, constantly digging for it in the family’s garage, even
after he was told the story was not true.
       Defendant would later serve in the Egyptian army, and Samwiael testified
that defendant’s behavior turned more bizarre when he returned from his army
service. For example, defendant would defecate on the roof of the house or inside
the garage, and he would regularly sit and stare. He continued digging for gold
often and would become extremely angry when he did not find any. He would
also sell things from around the house. Samwiael testified that he punished
defendant for this behavior by tying up defendant and beating him with chains.
Samwiael had also severely beaten defendant on an earlier occasion, when
defendant intervened to prevent him from physically assaulting his wife,
defendant’s mother.

1      To avoid confusion, we refer to defendant’s father by his first name.

                                            9
       Samwiael described the family’s unsuccessful efforts to treat defendant’s
mental illness both before and after his time in the army. Defendant received
electric shock therapy and medications. On the day after defendant took his
medicine, he would drool and foam at the mouth. Samwiael testified that he had
also received psychiatric treatment in Egypt.
       Defendant’s younger sister, Janet Salama, described her close relationship
with her brother when she was a child and he still lived in Egypt. He would take
her to Sunday school and help her with her lessons. She testified that he was her
best friend, helped her when she felt sad, and felt like a father to her. She said her
feelings had not changed since he had gone to jail.

                         ii. Testimony from members of the community
       Several other witnesses were familiar with defendant from his panhandling
and loitering in La Habra in the years since he moved to the United States. They
described his unusual behavior: While panhandling, he had a vacant stare, “like
he was out of it,” one woman testified, and when he handed out flyers, he would
not make conversation or smile. One woman testified that the way defendant
looked at her while panhandling made her uncomfortable.
       Father Athanasius Ragheb, an Egyptian native who is a priest in Santa Ana,
described his interactions with defendant. Defendant had attended Father
Ragheb’s church and went to confession with him. Several years before the trial,
defendant had lived in housing at the church for about six months. Father Ragheb
described defendant as a kind person who would often give away the food and
money that Father Ragheb gave him. Father Ragheb testified that members of the
church generally liked defendant and were sympathetic towards him. Father
Ragheb described defendant as “not very smart” and testified, “[M]y gut feeling,
that [sic] he was not psychologically . . . sane.”



                                          10
                         iii. Testimony from psychiatrists and other mental health
                              professionals
       The vast majority of testimony in the penalty phase came from a number of
mental health professionals who treated defendant in the Orange County jail
during the three years before his trial began. Defendant exhibited a number of
psychotic behaviors and regularly suffered from hallucinations. As a result, he
was treated with a variety of drugs and was occasionally housed in the jail’s acute
mental health unit. Rachelle Gardea, a nurse and case manager at the jail,
explained that acute mental health housing is generally reserved for “somebody
who is suicidal, actively psychotic, for some reason unable to function in regular
housing . . . .”
       Eight psychiatrists examined defendant in the three years before
defendant’s trial and provided their observations and conclusions. Dr. Steven
Johnson, the psychiatric director at the Orange County jail during this time period,
explained that a psychiatrist was usually responsible for seeing patients in a
particular housing section for a two-month rotation. Defendant was therefore
treated by different psychiatrists and nurse practitioners over time, and this
variability was compounded when he moved in and out of mental health housing.
Many members of defendant’s treatment team—which included the psychiatrists,
psychologists, and nurse practitioners treating him at a particular time, as well as
case managers and the service chief—testified that they had trouble
communicating with defendant due to the language barrier; Dr. Johnson attributed
this in part to the limited availability of Arabic translators in the jail.
       Dr. Johnson treated defendant between April 1998 and August 2001. In
September 1998, Dr. Johnson assessed defendant as psychotic and suicidal, and
ordered suicide precautions. In December 1998, Dr. Johnson ordered suicide
precautions again after defendant had engaged in genital mutilation by tying a



                                            11
string around his penis. In January 1999, Dr. Johnson was able to examine
defendant with an Arabic translator, and defendant reported auditory
hallucinations; Dr. Johnson maintained his assessment that defendant was
psychotic. In May 1999, Dr. Johnson examined defendant without a translator
after he had moved to the acute mental health housing area, and observed that
defendant’s behavior was consistent with psychosis, but might be the result of
malingering.
       Defendant’s treatment team met occasionally to discuss his diagnosis and
treatment needs. In August 1999, after defendant’s auditory hallucinations had
persisted for several months, the team updated defendant’s diagnosis from an
unspecified psychotic disorder to schizo-affective disorder. Around that time,
Dr. Johnson and Dr. Girgis, another psychiatrist at the jail, discussed the
possibility of prescribing defendant Clozaril. Though defendant was not
ultimately prescribed Clozaril, Dr. Johnson testified that he would not even
consider prescribing it unless he considered a patient to be “seriously mentally ill.”
Dr. Johnson modified defendant’s prescriptions several times between January and
May 2001. In February 2001, Dr. Johnson noted that defendant’s condition was
improving, and in August, Dr. Johnson noted that defendant denied hallucinations
or suicidal ideation.
       In May 1998, Dr. John Woo observed defendant responding to internal
stimuli and exhibiting inappropriate affect and bizarre behaviors, and diagnosed
defendant with having a “psychosis not otherwise specified.” In January 1999,
Dr. Woo concluded that defendant was experiencing auditory hallucinations.
       In June 1999, Dr. Jasminka Depovic saw defendant in the acute mental
health housing unit, where he had been transferred after having defecated and
urinated on himself and was not eating. In April and May 2000, she saw
defendant after he had defecated in the shower and tied a string around his penis in

                                         12
what he described as an effort to “stop breathing.” She saw him again in July
2001, when he was responding to internal stimuli, was very disheveled, and
exhibited poor insight and judgment, and she concluded that it was “questionable”
if he was dangerous to himself or others. Dr. Depovic agreed with her colleagues’
diagnosis of schizo-affective disorder.
       Dr. Raafat Girgis, a forensic psychiatrist, examined defendant in August
1999. Dr. Girgis, who is a native of Egypt, spoke to defendant in Arabic.
Defendant told Dr. Girgis that he was hearing voices that commanded him to cut
his genitalia and to hurt others. Dr. Girgis concluded that defendant had poor
insight into the nature of his mental illness and that he suffered from
schizophrenia, “disorganized type,” which means that there is a disorganization of
the thought process. Defendant also told Dr. Girgis that his father had a history of
mental illness.
       Dr. Teresa Farjalla saw defendant on a number of occasions between March
1998 and September 2001. In August 1998, she did not observe any signs of
defendant being “overly psychotic.” She was aware of defendant’s history of
self-harming behavior by tying a string around his penis, however, and noted that
it occurred again in December 1998. During that same period of time, defendant
was not showering or changing his clothes, and Dr. Farjalla and her colleagues
concluded that he was suffering from depression. In May 1999, she observed that
he was hallucinating and talking to himself and had been urinating in his cell. In
June and September 2001, Dr. Farjalla observed that defendant’s insight and
judgment were poor, meaning that he did not appreciate the nature of his illness.
Dr. Farjalla agreed with her colleagues’ diagnosis of defendant with
schizo-affective disorder, and she explained that the severity of schizophrenia
symptoms can fluctuate with time and with stress.



                                          13
       Dr. Jose Flores-Lopez worked as a psychiatrist at the Orange County jail
until early 2000. In April 1998, he observed that defendant was experiencing
auditory hallucinations and had refused his medications, but he did not see any
evidence of acute mental illness. In August of that same year, he observed that
defendant was paranoid and delusional and responding to internal stimuli, and he
concluded that defendant was likely suffering from schizophrenia or some type of
psychosis. In December 1998, Dr. Flores-Lopez noted that defendant had been
mutilating his genitals; the doctor determined that defendant suffered from some
form of psychosis. In July 1999, Dr. Flores-Lopez observed that defendant was
taking the maximum appropriate doses for certain medications taken to treat
schizo-affective disorder, but was still experiencing symptoms, so the benefits of
those medications were probably at a “plateau.” As a result, he concluded that
defendant’s condition was chronic and stable. He continued to conclude that
defendant was likely suffering from psychosis or schizo-affective disorder, and
maintained this opinion until he left the jail in early 2000. Dr. Flores-Lopez also
testified that in April 1999, he had noted that he wanted defendant to be assessed
for competency because he “wasn’t sure that [defendant] was competent.”
       At various points in time, Dr. Flores-Lopez considered whether defendant
was being intentionally manipulative or malingering. For example, in December
1998, he observed defendant talking to himself; staff members told him that
defendant did so only when Dr. Flores-Lopez was present, though other inmates
indicated that defendant also talked to himself when no staff members were
present. In April 1999, Dr. Flores-Lopez noted that defendant reported auditory
hallucinations, but he appeared to respond to internal stimuli only when he was
being observed, and other staff had reported to Dr. Flores-Lopez that defendant’s
behavior was “within normal limits.” He explained that mental illness can be
exacerbated by stress, including the stress caused by a transfer out of mental health

                                         14
housing to general housing, and that the stresses of jail can affect patients
differently. He also explained that inmates sometimes exaggerate the symptoms
of their mental illness to ensure they can stay in mental health housing, which has
a limited capacity. Other psychiatrists who testified, including Dr. Johnson, had
also considered the possibility that defendant was malingering.
       On cross-examination, Dr. Flores-Lopez explained that the language barrier
made it difficult to assess whether defendant was malingering; according to
Dr. Flores-Lopez, it was “almost impossible to take apart the subtleties that you
would be able to do with an English speaking patient.” He testified that he could
not rule out malingering without psychological testing. Dr. Flores-Lopez noted,
however, that he had observed a number of symptoms in defendant over time that
were consistent with schizophrenia and would be unlikely in an individual who is
malingering because only someone with medical knowledge would be aware that
these symptoms are associated with schizophrenia.
       In July 2001, Dr. Ebtesam Khaled, a native speaker of Egyptian Arabic,
observed that defendant was experiencing hallucinations, had memory problems,
was “very guarded and suspicious,” and had poor insight and judgment.
Defendant exhibited suicidal tendencies, so Dr. Khaled ordered “suicidal
precaution observation.” Dr. Khaled discontinued that observation a short time
later, after defendant denied feeling suicidal four days in a row.
       In addition to the psychiatrists’ testimony, six nurses, two case managers, a
social worker, and a mental health specialist testified as to their observations of
defendant during the three years he spent at the Orange County jail before trial.
       Virginia Sollars, a nurse at the jail, observed in March 1998 that
defendant’s mood and affect were inappropriate. In May 1998, Linda Price,
another nurse, observed defendant talking to himself and noted that he was
responding to internal stimuli. That same month, Margaret Wiggenhorn, a mental

                                          15
health specialist at the jail, met with defendant; defendant denied suicidal ideation
and hallucinations, and told her, “I am not crazy.” Later that month, Wiggenhorn
observed that he may have been responding to internal stimuli, and he admitted to
auditory hallucinations.
       Jill Savage, a case manager for the Orange County Health Care Agency,
testified that in June 1998, she learned that defendant was refusing his
antipsychotic medication; defendant told her he was “all better” and no longer
hearing voices. The next month, defendant told Savage there were four Black men
in his cell; he took Savage to his empty cell and pointed inside, insisting they were
there. In September 1998, he reported that he was hearing voices, including his
family members’, in his cell. Later that month, defendant had tied a string around
his penis; he told her he did not remember tying it on, and found it like that when
he woke up. In December 1998, Savage observed further mutilation of
defendant’s genitals.
       Kristen Whitmore, a nurse practitioner working in mental health at the jail,
observed in July 1998 that defendant was sexually preoccupied and had been
asking nurses to apply antifungal cream on his groin. In August 1998, Kay
Cantrell, another nurse at the jail, observed defendant after he had been seen
smearing food in his cell and shaking; she noted that he was mute, his eyes were
making “slightly jerking movement,” he was “moving lips without speaking,” and
he appeared to be “responding to internal stimuli.”
       In January 1999, defendant told Nabeel Bechara, another nurse at the jail,
that he was hearing voices. Leonard Luna, a clinical social worker with the jail,
observed defendant talking to himself in the mirror in February and March 1999,
and in April, defendant told Luna that he was hearing voices. Luna observed
defendant talking to himself again in May and June 1999, and noted in June that
defendant had been urinating on the floor of his cell. In September 1999, Luna

                                         16
saw defendant again and noted that he was unkempt, and, in both September and
December, Luna observed defendant talking to himself. In January 2000, Luna
noted that defendant’s mood was improved. In May, Luna again observed
defendant unkempt and talking to himself.
       Rachelle Gardea, a nurse who served as a case manager for mental health
patients in the jail’s acute mental health housing unit, observed defendant in July
2000. She noted in defendant’s file that he should be evaluated for an involuntary
psychiatric hold in advance of release from the facility to avoid potential danger to
himself or others. In June 2001, Gardea noted that defendant had been pulling out
his own hair and that he had fallen while walking through the jail; defendant could
not explain either behavior.
       April Barrio, a nurse practitioner in psychiatry at the jail, observed
defendant in October 1999; she noted that he had a bizarre or inappropriate affect.
She observed him again in November 1999 and noted that he was disheveled, his
cell was a mess, and he was moving his lips as if talking to someone, even though
he was alone. She concluded that he was experiencing hallucinations and his
psychosis was slightly increased.
       In April 2000, Barrio noted that defendant’s condition appeared chronic but
stable and he was responding to his medications. In early July 2000, she observed
that defendant continued to experience auditory hallucinations, his behavior was
more appropriate and responsive, he was communicating more in English, and his
condition was slightly improved from her last visit with him. Approximately two
weeks later, defendant had shaved his eyebrows, and he admitted to Barrio that he
did so because voices told him to; he also complained of an increase in auditory
hallucinations. In August 2000, defendant told Barrio that voices had told him to
put butter and coffee on his face. Barrio observed defendant in his cell, which was
“trashed,” with his clothes and a small piece of cloth on the floor; he told Barrio

                                          17
that he had been “tying his penis.” Later that month, she noted that defendant
remained psychotic and should be subject to a hold for psychiatric evaluation
before possible release from jail.2
       In September 2000, Barrio observed defendant moving his lips as if
chanting or talking to someone while he was alone in his cell. When she asked if
he was hearing voices, he replied, “voices, food, John, eat.” In October 2000,
defendant told her he was experiencing auditory, visual, and tactile hallucinations.
In November 2000, defendant reported a tactile hallucination of a woman touching
him, as well as voices telling him, “go, John; eat, John; John bad.” In December
2000, he complained to Barrio of auditory hallucinations telling him to scratch
himself and pull his hair and pull off his toenails; Barrio noticed his hair was
thinning. Barrio, however, observed that defendant’s auditory hallucinations
decreased and his condition improved after she adjusted his medications later that
month.
       Saundra King, a case manager at the jail, observed in May 2000 that
defendant was depressed and his affect was flat. In July 2000, she noticed
abrasions on defendant’s face; he told her that voices had commanded him to pick
at his face and to rub butter and coffee grounds into it. In September 2000, he
reported hallucinations, and in October 2000, defendant was hypertalkative and
rambling. In both January and March 2001, King observed that defendant had
been pulling out his hair. In September 2001, King met with defendant after he


2       Barrio testified that she had felt “he definitely fits one of the 5150 criteria.”
This was presumably a reference to a 72-hour involuntary hold for “assessment,
evaluation, and crisis intervention” under Welfare and Institutions Code section
5150. Such a hold is permitted when a professional has probable cause to believe
that the person, “as a result of a mental health disorder, is a danger to others, or to
himself or herself, or gravely disabled.” (Welf. & Inst. Code, § 5150, subd. (a).)


                                           18
returned from court, and she noted that he was alert and coherent, and his mood
was pleasant and his affect appropriate.
       Dr. Ari Kalechstein, a private psychologist with a specialty in
neuropsychology, was hired as an expert witness by the defense. In January and
February 2001, he performed a series of neuropsychological tests designed to
measure defendant’s attention span and his ability to engage in complex tasks.
Defendant’s performance was below average on all tests, and impaired on many of
them. Dr. Kalechstein performed additional tests to determine whether defendant
was malingering, and concluded that he was not. Based on defendant’s
performance on all of these tests, Dr. Kalechstein concluded that defendant
suffered from some frontal lobe impairment, which is not uncommon in
individuals suffering from a psychotic disorder.
                                    II. DISCUSSION

          A. Trial Court’s Failure to Hold a Hearing to Determine
             Defendant’s Competence to Stand Trial
       Defendant argues that substantial evidence was introduced at the penalty
phase that raised a doubt as to his competence to stand trial. He argues the trial
court therefore should have suspended proceedings and held a competency
hearing, and the court’s failure to do so violated his due process and other federal
constitutional rights, as well as his statutory rights under Penal Code section 1367.
We conclude that the trial court did not abuse its discretion by failing to declare a
doubt as to defendant’s competence based on the penalty phase evidence adduced
by his counsel.
       The principles that guide the inquiry are well established. “The United
States Supreme Court has ‘repeatedly and consistently recognized that “the
criminal trial of an incompetent defendant violates due process.” ’ ” (People v.
Lightsey (2012) 54 Cal. 4th 668, 690.) To safeguard a defendant’s right to due


                                           19
process and a fair trial, the trial court has an obligation to hold a hearing to inquire
into the defendant’s competence when there is a bona fide doubt as to the
defendant’s competence to stand trial, and failure to do so is reversible error.
(Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Pennington (1967) 66
Cal. 2d 508, 518.)
       The test of whether a defendant is competent to stand trial is whether he
“ ‘has sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding—and whether he has a rational as well as factual
understanding of the proceedings against him.’ ” (Dusky v. United States (1960)
362 U.S. 402, 402.) This standard is codified in Penal Code section 1367, which
precludes trial of a defendant who “as a result of mental disorder or developmental
disability . . . is unable to understand the nature of the criminal proceedings or to
assist counsel in the conduct of a defense in a rational manner.” (Pen. Code,
§ 1367, subd. (a).)
       “Both federal due process and state law require a trial judge to suspend trial
proceedings and conduct a competency hearing whenever the court is presented
with substantial evidence of incompetence, that is, evidence that raises a
reasonable or bona fide doubt concerning the defendant’s competence to stand
trial. ([Pen. Code,] § 1368; Drope v. Missouri [(1975)] 420 U.S. [162,] 181.)”
(People v. Rogers (2006) 39 Cal. 4th 826, 847 (Rogers).) “ ‘[A]bsent a showing of
“incompetence” that is “substantial” as a matter of law, the trial judge’s decision
not to order a competency hearing is entitled to great deference, because the trial
court is in the best position to observe the defendant during trial.’ ” (People v.
Sattiewhite (2014) 59 Cal. 4th 446, 465 (Sattiewhite).) “Whether to order a present
sanity hearing is for the discretion of the trial judge, and only where a doubt as to
sanity may be said to appear as a matter of law or where there is an abuse of



                                           20
discretion may the trial judge’s determination be disturbed on appeal.” (People v.
Pennington, supra, 66 Cal.2d at p. 518.)
       On appeal, our task is to examine “the inferences that were to be drawn
from the undisputed evidence” and to ask “whether, in light of what was then
known, the failure to make further inquiry into petitioner’s competence to stand
trial, denied him a fair trial.” (Drope v. Missouri, supra, 420 U.S. at pp. 174–175
(Drope).) The focus of our inquiry is the evidence that “was in fact part of the
record presented or otherwise made available to the trial court.” (People v. Mickel
(2016) 2 Cal.5th 181, 197 (Mickel).) “We do not require a trial court to evaluate a
defendant’s competence based on evidence not before it at the time of its
decision.” (Ibid.)
       “[I]f a qualified mental health expert who has examined the defendant
‘ “states under oath with particularity that in his professional opinion the accused
is, because of mental illness, incapable of understanding the purpose or nature of
the criminal proceedings being taken against him or is incapable of assisting in his
defense or cooperating with counsel,” ’ that is substantial evidence of
incompetence.” (People v. Lewis (2008) 43 Cal. 4th 415, 525 (Lewis).) But absent
such testimony, no single factor is necessary to establish sufficient doubt of a
defendant’s competence as to require a hearing. Rather, a court must consider the
“aggregate of th[e] indicia” of the defendant’s competence. (Drope, supra, 420
U.S. at p. 180.) “Evidence of incompetence may emanate from several sources,
including the defendant’s demeanor, irrational behavior, and prior mental
evaluations. [Citations.]” (Rogers, supra, 39 Cal.4th at p. 847.) But the evidence
must bear on the defendant’s competency to stand trial, rather than simply
establish the existence of a mental illness that could conceivably affect his ability
to understand the proceedings or assist counsel. (Ibid.) “[M]ore is required to
raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or

                                           21
statements of defense counsel that defendant is incapable of cooperating in his
defense [citation] or psychiatric testimony that defendant is immature, dangerous,
psychopathic, or homicidal or such diagnosis with little reference to defendant’s
ability to assist in his own defense [citation].” (People v. Laudermilk (1967) 67
Cal. 2d 272, 285; accord, Mickel, supra, 2 Cal.5th at p. 202.)
       In this case, no issue was raised about defendant’s competence at any point
during the trial, and both sides appear to agree that the court was not privy to any
information during the guilt phase that would have raised a doubt about
defendant’s competence. The record contains no indication that defendant
exhibited concerning behavior during either phase of trial. During the penalty
phase, however, the defense introduced considerable evidence of defendant’s
mental illness as part of its case in mitigation. This evidence included the
testimony of numerous mental health professionals who had examined and treated
defendant at the Orange County jail during the three years he awaited trial, as well
as the testimony of family members and members of the community who
described defendant’s history of mental illness and associated symptoms.
Defendant now argues that this evidence required the trial court to suspend
proceedings on its own motion and to hold a hearing on defendant’s competence
to stand trial.
       We considered a comparable situation in People v. Welch (1999) 20 Cal. 4th
701, 739, and there concluded that “psychiatric expert testimony presented by the
defense at the penalty phase describing [defendant’s] considerable mental
problems,” including delusional paranoid disorder and paranoid schizophrenia (id.
at p. 727), had no bearing on whether the trial court had erred in earlier failing to
declare a doubt as to defendant’s competence to stand trial. Similarly here, the
trial court could have been under no obligation to suspend proceedings during the
guilt phase, before any of the relevant mitigation evidence had been presented to

                                          22
it. Our decision in People v. Welch did not, however, appear to consider the
possibility that the trial court might have been obligated to suspend proceedings
during the penalty phase, once it had heard the testimony of the defense mental
health experts. Under the circumstances of this case, however, we conclude that
the trial court did not have such an obligation.
       As defendant acknowledges, evidence of mental illness alone is not
sufficient to raise a doubt about a defendant’s competence to stand trial. The
question is whether defendant’s mental illness interfered with his ability to
understand the nature and purpose of the criminal proceedings or to communicate
with his counsel about his defense. (See Rogers, supra, 39 Cal.4th at p. 849;
Mickel, supra, 2 Cal.5th at pp. 203–204.) “[E]ven a history of serious mental
illness does not necessarily constitute substantial evidence of incompetence that
would require a court to declare a doubt . . . .” (People v. Blair (2005) 36 Cal. 4th
686, 714.)
       Here, as defendant notes, the record contains more than just evidence of a
history of serious mental illness; some of the penalty phase witnesses described
symptoms directly related to his ability to think and communicate logically. In
particular, defendant points to the testimony of Dr. Girgis who testified that
defendant’s auditory hallucinations interfered with his ability to communicate and
that defendant’s thought processes were disorganized. A number of mental health
professionals who worked at the jail also testified as to difficulty communicating
with defendant, although many of them attributed the difficulty to language
barriers. Witnesses who communicated with defendant in his native Arabic did
not report the same difficulties, but they did describe episodes in which defendant
appeared to suffer from significant memory lapses. And as defendant points out,
although none of the psychiatrists opined that he was incompetent to stand trial
(cf. Lewis, supra, 43 Cal.4th at p. 525), Dr. Flores-Lopez did testify that he

                                          23
recommended in April 1999 that defendant be sent to a mental hospital for a
competency evaluation.3
       The difficulty, however, is that the record also indicates that defendant’s
symptoms fluctuated over time, but does not reveal whether the symptoms these
witnesses observed were ones that persisted through trial. While most of the
evidence on which defendant relies concerns his condition well before trial began
in October 2001, evidence closer in time to the start of the trial paints a somewhat
more complex picture. In February 2001, Dr. Johnson noted that defendant’s
condition was improving with adjustments to his medication, though it appeared to
deteriorate again later in the month. In July and August 2001, Dr. Khaled
observed that defendant reported improvement, appeared alert and oriented and
denied any suicidal or homicidal ideation, although he also reported hearing
voices, having memory problems, and feeling depressed. In August 2001,
Dr. Johnson noted that defendant denied having any hallucinations or suicidal
thoughts, that his hygiene was good, and that he appeared alert and oriented. Also
in August 2001, Dr. Khaled reported that defendant told him that he felt “fine.”
His psychiatric case manager at the jail, King, testified that in September 2001,
after he returned from court, he was alert and coherent, and his mood was pleasant
and his affect appropriate.
       The record contains no evidence about defendant’s condition during the
trial itself. The omission is noteworthy: Even though defendant’s counsel

3       The record contains no indication that such an evaluation occurred.
Dr. Flores-Lopez’s testimony regarding his recommendation that defendant be
sent to a mental hospital for a competency evaluation is not itself substantial
evidence of incompetence because Dr. Flores-Lopez did not state with
particularity the opinion that defendant was incompetent. (See Lewis, supra, 43
Cal.4th at p. 525.) Dr. Flores-Lopez also acknowledged the possibility that
defendant might be malingering, and testified that he could not rule out
malingering without performing psychological testing.

                                         24
assembled voluminous evidence concerning defendant’s mental health history for
presentation at the penalty phase, and engaged a licensed psychologist who
testified about the results of his examination of defendant, counsel presented no
evidence to the court indicating that defendant was incompetent at the time of trial.
Counsel did, however, suggest that defendant’s condition had generally improved
in the year before trial: In her closing argument, defense counsel described
defendant’s mental condition as having fluctuated over time, but as having
“stabilize[d] a bit” over the previous year as his medications were adjusted.4
Counsel raised no doubts about defendant’s competence at any point during the
proceedings.
       Given the nature of the mitigation evidence on which defendant relies,
counsel’s actions are significant. “Although trial counsel’s failure to seek a
competency hearing is not determinative [citation], it is significant because trial
counsel interacts with the defendant on a daily basis and is in the best position to
evaluate whether the defendant is able to participate meaningfully in the
proceedings.” (Rogers, supra, 39 Cal.4th at p. 848; cf. Medina v. California
(1992) 505 U.S. 437, 450 [“defense counsel will often have the best-informed
view of the defendant’s ability to participate in his defense”].) Here, defense
counsel not only interacted with defendant, but also, as the trial court was well


4       Defense counsel described defendant’s mental illness to the jury in arguing
that it was a mitigating factor, though not a legal excuse for his actions: “I’m not
arguing to you now that this illness was [sic] rendered him incapable of making
choices. . . . No one ever argued to you that he wasn’t capable of making the
decision to do what he did in this case. And that might have been a defense if he
were so sick that he had no clue about what he was doing, but no one ever argued
that to you.” She continued: “Precisely because he made choices, he’s going to
be locked up forever. The difference is because of the flawed quality of his ability
to make those choices, because his options are not the options that a truly evil
person has, the appropriate punishment is no more than locking him up in an
isolated cell for the rest of his life.”

                                         25
aware, had undertaken an in-depth investigation of defendant’s history of mental
illness. Under the circumstances, the trial court reasonably could have ascribed
some weight to trial counsel’s failure to raise concerns about defendant’s
competence at any point during the proceedings.
       The circumstances of this case distinguish it from other cases on which
defendant relies, including Drope. In Drope, the defendant was charged with rape
of his wife, and the trial court rejected defense counsel’s request for a continuance
to allow for psychiatric examination before trial. (Drope, supra, 420 U.S. at
pp. 164–165.) This motion was accompanied by a psychiatric evaluation, which
included some observations suggesting the defendant was competent—for
example, he was “ ‘well oriented’ ” and was able to answer questions testing
judgment, but the psychiatrist diagnosed the defendant with “ ‘[b]orderline mental
deficiency’ and ‘[c]hronic [a]nxiety reaction with depression’ ” and noted that the
defendant “ ‘had a difficult time relating,’ and that he ‘was markedly
circumstantial and irrelevant in his speech.’ ” (Id. at pp. 175–176.) At trial, the
court heard testimony from the defendant’s wife about the defendant’s mental
state; she testified that at first, she had believed her husband “needed psychiatric
care” (id. at p. 166) and should not be prosecuted, but also stated that she “was not
convinced petitioner was sick after talking to his psychiatrist” and had changed her
mind about prosecution because the defendant had tried to choke her to death the
Sunday before the trial began. (Ibid.) Midway through the trial proceedings, the
defendant attempted suicide. (Ibid.) The United States Supreme Court held that
the defendant’s attempted suicide, the psychiatrist’s report, and the defendant’s
wife’s testimony, “when considered together . . . created a sufficient doubt of [the
defendant’s] competence to stand trial to require further inquiry on the question.”
(Id. at p. 180.) Here, by contrast, the record contains no evidence concerning
defendant’s impaired mental condition immediately before or during trial, and his

                                          26
counsel raised no concerns based either on her interactions with defendant or her
investigation of his mental health.
       This case is also unlike Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561. In
that case, defense counsel had successfully moved for a Penal Code section 1368
hearing during pretrial proceedings, at the conclusion of which the defendant was
found competent; four of five psychiatrists to evaluate the defendant had
concluded that he was malingering. But during trial, the defendant’s behavior “in
and outside the courtroom was erratic, irrational, and disruptive,” the defendant
exhibited “irrational and paranoid behavior,” and the defendant frequently refused
to take his antipsychotic medications as prescribed. (Id. at pp. 565, 570; see id. at
pp. 566, 571.) The defendant also attempted suicide halfway through trial and was
placed on a psychiatric hold pursuant to Welfare and Institutions Code section
5150. (Id. at pp. 565–566.) Although defense counsel again raised concerns about
the defendant’s competence, the trial court reviewed the psychiatrists’ findings
from the earlier competency hearing, concluded that the defendant was
malingering, and did not hold a second competency hearing. (Id. at p. 565.) The
United States Court of Appeals for the Ninth Circuit granted federal habeas corpus
relief, explaining that “attempted suicide—taken in the context of his pre-trial
behavior, strained communication with defense counsel, mental health history,
antipsychotic medications, and subsequent psychiatric detentions—would have
raised a doubt in a reasonable judge.” (Id. at p. 571.) Again, while the record in
this case contains considerable evidence that defendant had a history of serious
mental illness, it does not contain evidence tending to show that defendant
suffered relevant mental impairments during trial or was unable to communicate
effectively with counsel, and his counsel raised no such concerns.
       Ultimately, although defense counsel’s penalty phase mitigation evidence
showed that defendant suffered from serious mental illness, we conclude that the

                                         27
mitigation evidence did not constitute substantial evidence of present
incompetence that required the trial court, on its own motion, to declare a doubt
and conduct a competence hearing during the penalty phase of trial. The record
before us likewise provides insufficient evidence to demonstrate that defendant
was actually incompetent during trial.

            B. Constitutionality of the Death Penalty for Mentally Ill
               Defendants
         At the penalty phase, defense counsel argued that defendant’s mental
illness mitigated his culpability for the crime and warranted a verdict of life
without possibility of parole. After the jury returned a verdict of death, defendant
moved to modify the verdict on the ground that execution of a defendant who was
mentally ill at the time of his offense violates the due process clause and the
Eighth Amendment’s prohibition against cruel and unusual punishment. The trial
court rejected the argument. Defendant now renews the argument before this
court.
         Defendant’s argument relies on Atkins v. Virginia (2002) 536 U.S. 304,
which holds that the Eighth Amendment to the United States Constitution
prohibits imposition of the death penalty on persons with intellectual disabilities,
and Roper v. Simmons (2005) 543 U.S. 551, which reached a similar conclusion
concerning persons who were juveniles at the time of their offenses. He contends
that the evidence at trial showed that he suffered from cognitive impairments that
reduced his culpability in a manner similar to persons with intellectual disabilities
or juvenile offenders, and that the death penalty is therefore a similarly
disproportionate punishment for his crime.
         We have previously rejected similar claims, explaining that the logic of
Atkins and Roper does not extend to the class of offenders with mental illness.
(See People v. Mendoza (2016) 62 Cal. 4th 856, 908–909.) In Mendoza, we first


                                          28
explained that, while Atkins and Roper had relied on the emergence of a national
consensus against the imposition of the death penalty in cases of intellectual
disability and in cases involving juvenile offenders, there exists no similar
evidence that a national consensus has formed against the imposition of the death
penalty against the class of persons with mental illness. (Mendoza, at p. 909.) We
then went on to explain: “ ‘[T]he circumstance that an individual committed
murder while suffering from a serious mental illness that impaired his judgment,
rationality, and impulse control does not necessarily mean he is not morally
responsible for the killing. There are a number of different conditions recognized
as mental illnesses, and the degree and manner of impairment in a particular
individual is often the subject of expert dispute. Thus, while it may be that
mentally ill offenders who are utterly unable to control their behavior lack the
extreme culpability associated with capital punishment, there is likely little
consensus on which individuals fall within that category or precisely where the
line of impairment should be drawn. . . . We leave it to the Legislature, if it
chooses, to determine exactly the type and level of mental impairment that must be
shown to warrant a categorical exemption from the death penalty.’ ” (Ibid.,
quoting People v. Hajek and Vo (2014) 58 Cal. 4th 1144, 1252 (Hajek and Vo).)
Finally, we explained that, to the extent that Atkins and Roper were concerned
with the risk of “unjustified or mistaken execution” in the case of persons with
intellectual disabilities and juvenile offenders, significant variations in the forms
and nature of mental illness make it difficult to say that impaired competence is a
feature common to the class. (Mendoza, at p. 910; see id. at p. 911.) We noted all
defendants, in any event, “have the opportunity to establish that they are not
competent to stand trial.” (Id. at p. 911.)
       Defendant acknowledges that there “currently is no legislative action or
jury behavior reflecting a consensus against applying the death penalty for those

                                          29
with severe mental illness.” But he notes that several high court justices in other
states have written concurring or dissenting opinions that in some way “cast doubt
over the appropriateness of subjecting people with severe mental disorders to the
death penalty.” These separate opinions do not, however, establish a national
consensus. Moreover, several of the opinions are in fact consistent with our prior
conclusion that, because mental illness is “a much broader category” than
intellectual disability, “with wide ranges of diagnoses and periods of
decompensation and remission,” the lines should be drawn by a legislature rather
than by a court. (State v. Ketterer (Ohio 2006) 855 N.E.2d 48, 86 (conc. opn. of
Lundberg, J.); see Commonwealth v. Baumhammers (Pa. 2008) 960 A.2d 59, 106
(conc. opn. of Todd, J.); accord, Hajek and Vo, supra, 58 Cal.4th at p. 1252.)
       Defendant also relies on materials such as position statements of certain
mental health organizations, a 2002 public opinion poll, and a 2004 United
Nations resolution urging states with the death penalty not to impose it on, or
execute, “ ‘a person suffering from any form of mental disorder.’ ” We have
previously found these sorts of materials insufficient to demonstrate emerging
standards that warrant reexamination of our precedent. (People v. Mendoza,
supra, 62 Cal.4th at p. 910.) Defendant further notes that, before Connecticut
abolished the death penalty,5 it had prohibited the imposition of the death penalty
where the trier of fact found that, at the time of the offense, “the defendant’s
mental capacity was significantly impaired or the defendant’s ability to conform
the defendant’s conduct to the requirements of law was significantly impaired but


5      The Connecticut Legislature prospectively abolished the death penalty for
crimes occurring after April 25, 2012. The Connecticut Supreme Court later
invalidated the remainder of the death penalty law under the Connecticut
Constitution. (State v. Peeler (Conn. 2016) 140 A.3d 811; State v. Santiago
(Conn. 2015) 122 A.3d 1.)


                                          30
not so impaired in either case as to constitute a defense to prosecution.” (Conn.
Gen. Stat., § 53a-46a(h).) The legislative act of a single state does not, however,
demonstrate an emerging national consensus. Our Legislature, of course, may
adopt a similar standard if it so chooses. (See Hajek and Vo, supra, 58 Cal.4th at
p. 1252.)
       Defendant next invokes Panetti v. Quarterman (2007) 551 U.S. 930, which
concerned application of the Eighth Amendment rule forbidding the execution of a
prisoner who may have been found competent at earlier stages of the proceedings
but is found to be incompetent at the time of execution. Without attempting to
“set down a rule governing all competency determinations” (id. at pp. 960–961),
the high court in Panetti explained that a court evaluating a claim of incompetence
to be executed should have considered evidence that the prisoner “suffer[ed] from
a severe, documented mental illness that is the source of gross delusions
preventing him from comprehending the meaning and purpose of the punishment
to which he has been sentenced” (id. at p. 960). “Gross delusions stemming from
a severe mental disorder,” the court explained, “may put an awareness of a link
between a crime and its punishment in a context so far removed from reality that
the punishment can serve no proper purpose.” (Ibid.) Defendant argues that this
logic suggests that persons suffering from major mental illnesses with psychotic
features should be ineligible for the death penalty by reason of their impaired
comprehension. But even assuming Panetti is relevant to defendant’s challenge to
his sentence (as opposed to its execution), Panetti says that execution is barred if
the nature of a prisoner’s mental illness is such that it prevents him from
understanding the meaning and purpose of the penalty to be carried out, and
defendant points to no evidence in the record to indicate that his mental illness
necessarily has these effects. To the extent defendant is making a claim of
incompetence to be executed, such an argument is premature: Under California

                                         31
law, competence to be executed is an inquiry to be undertaken only after the date
of execution has been set. (See People v. Kelly (1992) 1 Cal. 4th 495, 544–545 &
fn. 11; Pen. Code, § 3700.5.) We express no view as to the merit of any claim of
incompetence that defendant might raise at that time.

           C. Sufficiency of Evidence of First Degree Murder and Special
              Circumstance
        Defendant contends there was insufficient evidence of first degree murder
based either on a premeditated and deliberate murder theory or a felony-murder
theory. He also argues that there was insufficient evidence to support a true
finding on the special circumstance allegation. We address these contentions in
turn.

                  1. First degree murder
        The jury was instructed that a verdict of first degree murder required a
finding that defendant acted with premeditation and deliberation, or that the killing
occurred during the commission or attempted commission of a lewd act on a child.
(See Pen. Code, §§ 187, 189, 288.) Defendant contends there was insufficient
evidence for a reasonable trier of fact to find him guilty of first degree murder on
either basis.
        We have previously described the role of the reviewing court in evaluating
sufficiency of the evidence claims: “ ‘[T]he court must review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.’ ” (People v. Guiton (1993) 4 Cal. 4th 1116, 1126.) “ ‘ “The
standard of review is the same in cases in which the prosecution relies mainly on
circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit
a defendant if it finds that circumstantial evidence is susceptible of two


                                          32
interpretations, one of which suggests guilt and the other innocence [citations], it
is the jury, not the appellate court[,] which must be convinced of the defendant’s
guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a
reversal of the judgment.” ’ ” ’ ” ’ ” (People v. Tully (2012) 54 Cal. 4th 952, 1006–
1007.) When “there are two possible grounds for the jury’s verdict, one
unreasonable and the other reasonable, we will assume, absent a contrary
indication in the record, that the jury based its verdict on the reasonable ground.”
(Guiton, supra, at p. 1127.)

                         i. Premeditated and deliberate murder
       First, defendant argues there is insufficient evidence to support a finding of
guilt based on premeditated and deliberate murder. We disagree.
       “ ‘A verdict of deliberate and premeditated first degree murder requires
more than a showing of intent to kill. . . . “Deliberation” refers to careful
weighing of considerations in forming a course of action; “premeditation” means
thought over in advance. . . . “The process of premeditation and deliberation does
not require any extended period of time. ‘The true test is not the duration of time
as much as it is the extent of the reflection. Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly.’ ” ’ ”
(People v. Cole (2004) 33 Cal. 4th 1158, 1224.) In People v. Anderson (1968) 70
Cal. 2d 15, 26–27, we identified three categories of evidence that tend to establish
a premeditated and deliberate murder—planning, motive, and method. “But these
categories of evidence . . . ‘are descriptive, not normative.’ (People v. Perez
(1992) 2 Cal. 4th 1117, 1125.) They are simply an ‘aid [for] reviewing courts in
assessing whether the evidence is supportive of an inference that the killing was



                                          33
the result of preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse.’ ” (Cole, supra, at p. 1224.)
       Defendant stresses that the prosecution never presented evidence of
extensive planning. The jury was, however, entitled to consider evidence showing
that defendant had previously threatened to kill Delgado in considering whether
the murder was premeditated. (Cf. People v. Brooks (2017) 3 Cal.5th 1, 41
[evidence of prior threats relevant to show premeditation].) Alfonso Solano
testified that Delgado approached him outside a liquor store and told him that
defendant was going to kill him; Solano later heard defendant tell Delgado, “ ‘I
will kill you and eat your pee-pee.’ ” Defendant killed Delgado approximately
one month later. The jury further heard evidence that when Delgado’s remains
were found, his penis was missing.
       Defendant argues that the evidence showed he went to Home Depot and
Super Kmart to buy cement and other materials only after the killing occurred,
which reflects a lack of preparation that is inconsistent with premeditated and
deliberate murder. But even accepting the latter premise for the sake of argument,
there was no testimony establishing the precise time of Delgado’s death. As a
result, although there was no evidence to show that the cement and other
purchases were made before Delgado’s death, there was no evidence to show the
purchases were made after Delgado’s death, either. Viewing the evidence in the
light most favorable to the judgment, we conclude the evidence was sufficient to
support a finding of premeditated and deliberate murder.

                        ii. Felony murder
       Defendant next argues that there is insufficient evidence to support a
finding of guilt based on felony murder, where the predicate felony was sexual
molestation in violation of Penal Code section 288. Section 288 prohibits “any



                                         34
lewd or lascivious act . . . upon or with the body, or any part or member thereof, of
a child who is under the age of 14 years, with the intent of arousing, appealing to,
or gratifying the lust, passions, or sexual desires of that person or the child.” (Pen.
Code, § 288, subd. (a).) A murder committed “in the perpetration of, or attempt to
perpetrate,” a violation of section 288 is first degree murder. (Id., § 189.)
       “For felony murder, the required mental state is the specific intent to
commit the underlying felony. [Citation.] The killing is considered to be
committed in the perpetration of the underlying felony if the acts were part of a
continuous transaction. [Citation.] No strict causal or temporal relationship
between the murder and underlying felony is required.” (People v. Booker (2011)
51 Cal. 4th 141, 175 (Booker).)
       Defendant argues there is no “solid” evidence to show that defendant
touched or attempted to touch Delgado in a lewd manner. Defendant emphasizes
that there was no evidence of anal tearing or trauma to Delgado’s body. This is
true, as far as it goes; Delgado’s pelvis was not recovered for more than a year
after his death and showed substantial signs of decomposition that made it difficult
to evaluate any tearing. In any case, there was circumstantial evidence of
molestation: Delgado’s clothes were found on a shelf in defendant’s home, and
his remains were found undressed. Though the police found most of Delgado’s
remains, his penis had been severed from his body and was never recovered. And
there was direct evidence as well: an analyst and an expert witness testified to the
presence of sperm cells in Delgado’s anus.
       Defendant notes that there were conflicting opinions on whether sperm
cells could be identified, and argues that, even assuming there were sperm cells in
Delgado’s anus, no evidence conclusively linked the cells to defendant.
Defendant argues that it would be more reasonable for the jury to infer that any
sperm found in the victim’s anal area was the victim’s own sperm; defendant

                                          35
suggests that the victim’s sperm may have been deposited in his anal area when
his testicles or vas deferens was severed. We reject the argument. Our decision in
People v. Kraft (2000) 23 Cal. 4th 978 (Kraft) is instructive. In that case the
defendant was convicted of the first degree murder and sodomy of Michael Joseph
Inderbieten, and the jury found true the special circumstance allegation of murder
in the commission of sodomy. (Pen. Code, §§ 187, 286, 190.2, subd. (a)(17)(D).)
Anal swabs taken from the victim revealed sperm that may have come from the
victim or the defendant, and the pathologist found no signs of trauma to the
rectum. The defendant thus argued that the sperm belonged to the victim. But the
victim was found with his pants partially pulled down, exposing his buttocks, and
there was no evidence that the victim had ejaculated. “On these facts, including
the condition of the victim’s clothing,” we concluded, “the jury reasonably found
defendant committed the sodomy of Inderbieten . . . .” (Kraft, supra, at p. 1059.)
We reach much the same conclusion here: though witnesses for the prosecution
and the defense presented conflicting views as to whether the cells found in
Delgado’s anus were sperm, the jury could have reasonably credited those
witnesses who concluded that it was sperm. And given the condition of the body
when it was found, as well as the location of Delgado’s clothes in defendant’s
shed, it was not unreasonable for the jury to infer that the sperm was defendant’s,
as opposed to Delgado’s or that of a third party.
       Defendant also argues that it is no more likely that any penetration occurred
after Delgado’s death than before, because there is no proof that defendant sought
to engage in a lewd or lascivious act with Delgado while he was alive. He further
argues that if the sexual activity occurred after Delgado’s death, it could not serve
even as an attempted violation of Penal Code section 288. As to the first point, we
rejected a similar argument in Kraft, explaining: “ ‘[I]n the absence of any
evidence suggesting that the victim’s assailant intended to have sexual conduct

                                         36
with a corpse [citation], we believe that the jury could reasonably have inferred
from the evidence that the assailant engaged in sexual conduct with the victim
while [he] was still alive rather than after [he] was already dead.’ ” (Kraft, supra,
23 Cal.4th at p. 1060.) As to the second point, in a case involving felony murder
based on rape or the commission of a lewd or lascivious act by force, we have
explained: “Intercourse after death does not necessarily negate the felony-murder
rule or the rape-murder special-circumstance finding, as postmortem intercourse
could constitute an attempt to commit rape, provided it was part of a continuous
transaction and the intent to commit rape was formed prior to the murder.
[Citation.] The same is true for a postmortem lewd act.” (Booker, supra, 51
Cal.4th at p. 175.) Here, it was reasonable for the jury to conclude that defendant
completed or attempted a lewd or lascivious act while Delgado was alive, or at
least as part of the same “continuous transaction.” (Ibid.) This satisfies the
requirements for felony murder because Delgado was killed “in the perpetration
of, or attempt to perpetrate,” a violation of Penal Code section 288. (Pen. Code,
§ 189; see Booker, supra, at p. 175.)
       Defendant also argues that the prosecutor did not present reliable evidence
that Delgado was under 14 years of age, a necessary element of Penal Code
section 288’s prohibition on a lewd and lascivious act “upon or with the body . . .
of a child.” The argument lacks merit. A classmate of Delgado’s testified that
Delgado was 12 and two classmates testified that Delgado was in the sixth grade at
the time of his death. It is well settled that “unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient to
support a conviction.” (People v. Young (2005) 34 Cal. 4th 1149, 1181.) Here, the
relevant testimony was both uncontested and uncontradicted at trial. There was
sufficient evidence for the jury in this case to conclude beyond a reasonable doubt
that the victim was under the age of 14.

                                           37
                  2. True finding of special circumstance of commission or
                     attempt of lewd and lascivious act on a child
       The jury found true the special circumstance that defendant committed first
degree murder while “engaged in . . . the commission of, [or] attempted
commission of . . . or attempting to commit . . . [¶] . . . [¶] . . . a lewd or lascivious
act upon the person of a child under the age of 14 years,” a violation of Penal
Code section 288. (Pen. Code, § 190.2, subd. (a)(17)(E).) “A jury’s true finding
on a special circumstance allegation must be supported by substantial evidence.”
(People v. Boyce (2014) 59 Cal. 4th 672, 691.) Because the jury’s finding of guilt
based on felony murder was also predicated on establishing that defendant
violated Penal Code section 288, and we have concluded that there was sufficient
evidence on which the jury could have based that conclusion, the same is true for
the special circumstance.

           D. Exclusion of Testimony Regarding the Victim’s Relationships
       Defendant contends that the trial court violated his federal and state
constitutional rights to present a complete defense, to a fair trial, and to a reliable
guilt and penalty determination when it excluded witness testimony that purported
to show that the victim often sought out the companionship of adult men.
Defendant’s argument lacks merit.
       Defendant sought to introduce testimony from various employees of local
businesses and their customers, who would have described the victim’s routine of
hanging around those businesses late into the night. Defense counsel argued that
the testimony would have shown that Delgado sought out and attached himself to
adults, which was relevant to “negate a presumption that the nature of
[defendant’s] relationship with Juan Delgado was a desire for sex.” The trial court
excluded the testimony, concluding that any evidence describing Delgado’s
general interactions with customers and employees at local businesses was


                                            38
irrelevant because such evidence had no tendency to prove or disprove that
defendant molested Delgado.
       The defense also sought to introduce the testimony of Oscar Leon about a
night he spent with Delgado in February 1998. Leon met Delgado at a donut shop
and ended up driving him around the neighborhood in search of his mother. After
they spent several hours in the car sleeping, Leon took him to the police station at
6:00 a.m. Defense counsel argued that Leon’s testimony was necessary to show
that Delgado sought out the company of adults and avoided going home at night,
thereby creating the inference that an adult male other than defendant could have
been the source of any sperm found in Delgado’s rectal area. The trial court
excluded this evidence as irrelevant because a jury could not have reasonably
inferred that defendant had or had not molested Delgado based on Delgado’s
earlier interactions with other adults. The trial court also noted that any such
inference would be speculative because Leon’s interaction with Delgado had
occurred a month before Delgado’s death.
       Evidence Code section 350 provides that only relevant evidence is
admissible. Evidence Code section 210, in turn, defines relevant evidence as that
“having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” “ ‘ “ ‘The test of relevance is
whether the evidence tends “ ‘logically, naturally, and by reasonable inference’ to
establish material facts such as identity, intent, or motive.” ’ ” ’ ” (People v.
Hamilton (2009) 45 Cal. 4th 863, 913 (Hamilton).)
       “Inferences drawn from the evidence must be logical and reasonable, not
merely speculative.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335,
405.) In order for evidence suggesting third party culpability to be relevant, and
thus admissible, the evidence “need not show ‘substantial proof of a probability’
that the third person committed the act; it need only be capable of raising a

                                          39
reasonable doubt of defendant’s guilt.” (People v. Hall (1986) 41 Cal. 3d 826, 833
(Hall).) Moreover, “evidence of mere motive or opportunity to commit the crime
in another person, without more, will not suffice to raise a reasonable doubt about
a defendant’s guilt: there must be direct or circumstantial evidence linking the
third person to the actual perpetration of the crime.” (Ibid.) Without this link,
such evidence is irrelevant and cannot be admitted. (Ibid.)
       Under Evidence Code section 352, the trial court may also exercise its
discretion to exclude evidence if “its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
       “ ‘ “ ‘The trial court has broad discretion in determining the relevance of
evidence [citations] but lacks discretion to admit irrelevant evidence.’ ” ’ ”
(Hamilton, supra, 45 Cal.4th at p. 913.) “ ‘As a general matter, the ordinary rules
of evidence do not impermissibly infringe on the accused’s right to present a
defense.’ ” (Mickel, supra, 2 Cal.5th at p. 218.) Rather, “[c]ourts retain . . . a
traditional and intrinsic power to exercise discretion to control the admission of
evidence in the interests of orderly procedure and the avoidance of prejudice.”
(Hall, supra, 41 Cal.3d at p. 834.) We review the trial court’s ruling to exclude
evidence as irrelevant for abuse of discretion. (Mickel, supra, at p. 219.)
       The trial court did not abuse its discretion in excluding these witnesses’
testimony. The mere fact that Delgado had interacted with adults is not logically
related to the circumstances of his death or defendant’s motive for spending time
with Delgado. Moreover, the victim’s interactions with adults did not tend to
prove or disprove that defendant engaged in an act of sexual molestation at the
time of the offense because the excluded testimony concerning those interactions
was of such a generalized nature.

                                          40
       To the extent that Leon’s testimony might have supported a suggestion that
another party could have been the source of the identified sperm, the trial court did
not abuse its discretion in excluding the testimony, because such evidence raised
no more than a “ ‘possible suspicion’ ” of another party’s guilt. (Hall, supra, 41
Cal.3d at p. 832.) Without providing a stronger link between Leon and the offense
here, defendant cannot introduce his testimony solely to suggest that defendant
was not the sole possible source of the sperm. In People v. Edelbacher (1989) 47
Cal. 3d 983, 1017–1018, the defendant attempted to show the possible motives of
third parties to kill the victim by offering evidence that the victim had associated
with drug dealers; defense counsel argued that “ ‘people who are dealing in
narcotics frequently end up injured or shot.’ ” We concluded that the evidence
was properly excluded, because “evidence showing only a third party’s possible
motive is not capable of raising a reasonable doubt of a defendant’s guilt and is
thus inadmissible.” (Id. at p. 1018.) Similarly here, evidence showing only a third
party’s possible opportunity is inadmissible; defense counsel’s efforts to suggest
that Leon or another adult male could have molested the victim are overly
speculative. The exclusion of this irrelevant evidence did not violate defendant’s
constitutional rights.

           E. Murder Charge in Information and Conviction of Murder
       Defendant was charged in an information with committing murder with
malice aforethought in violation of Penal Code section 187, subdivision (a), as
well as the special circumstance of committing murder while engaged in a
violation or attempted violation of Penal Code section 288. Defendant argues that
the trial court erred in instructing the jury on first degree murder because the
information charged only second degree murder. As appellant acknowledges, this
court has repeatedly held that a defendant may be convicted of first degree murder



                                          41
even if the indictment or information specifies only that the defendant is charged
with murder in violation of Penal Code section 187. (See People v. Contreras
(2013) 58 Cal. 4th 123, 147 (Contreras), citing cases.) We have explained:
“Malice murder and felony murder are two forms of the single statutory offense of
murder. Thus, a charge of murder not specifying the degree is sufficient to charge
murder in any degree. The information also need not specify the theory of murder
on which the prosecution relies at trial.” (Ibid.)
       Defendant argues these decisions were incorrectly decided because Penal
Code “section 189 [is] a statutory enactment of the first degree felony-murder rule
in California” (People v. Dillon (1983) 34 Cal. 3d 441, 472 (Dillon)), and under
People v. Carpenter (1997) 15 Cal. 4th 312, 394, there is “only a ‘single, statutory
offense of first degree murder.’ ” Defendant contends that Penal Code section 189
must be the “ ‘single[,] statutory offense’ ” referred to in Carpenter, such that the
prosecution’s failure to refer to section 189 in his indictment requires us to reverse
defendant’s conviction. We have previously rejected this argument as well,
explaining that “ ‘Dillon made it clear that section 189 serves both a degree-fixing
function and the function of establishing the offense of first degree felony murder.
[Citation.] It defines second degree murder as well as first degree murder.
Section 187 also includes both degrees of murder in a more general formulation.’ ”
(Contreras, supra, 58 Cal.4th at p. 148, quoting People v. Harris (2008) 43
Cal. 4th 1269, 1295.) Carpenter, for its part, did not hold that there is a single
statute defining first degree murder for pleading purposes, and “a decision is not
authority for propositions not considered.” (People v. Toro (1989) 47 Cal. 3d 966,
978, fn. 7.) We accordingly reject defendant’s claim.
       Defendant also argues that reversal is required under Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi), which holds that, under the Sixth and
Fourteenth Amendments to the United States Constitution, “ ‘any fact . . . that

                                          42
increases the maximum penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable doubt.’ ” (Apprendi, at
p. 476, italics added.) We have previously rejected this argument as well:
“[E]ven assuming, for the sake of argument, that Apprendi required that a fact
increasing the maximum penalty must be pleaded with greater specificity than
previously, it would not require greater specificity in pleading first degree murder,
because the maximum penalty for first degree murder in the absence of special
circumstances (life imprisonment) is not greater than the maximum penalty for
second degree murder, which like first degree murder carries a maximum penalty
of life imprisonment.” (People v. Famalaro (2011) 52 Cal. 4th 1, 37.) Here, as in
Famalaro, “defendant was sentenced to death, a greater punishment than life
imprisonment. But the special circumstance allegations that made him eligible for
that penalty were specifically pleaded,” so the procedures followed here do not
offend the principles of Apprendi. (Famalaro, at p. 37.)

          F. Failure to Require Unanimity on Theory of First Degree Murder
       The trial court instructed the jury on two theories of first degree murder,
premeditated murder and felony murder, but did not instruct the jury to agree on
the theory of murder. Defendant argues the failure to require jury unanimity on
one of these two theories violated his federal and state constitutional rights
because the two types of murder are based on different elements. Defendant
points to language in Dillon, supra, 34 Cal.3d at page 476, to suggest that the
crimes “differ in a fundamental respect” and require the prosecution to prove
different elements—deliberate and premeditated murder requires malice, while
felony murder does not. But as we have previously explained, “[p]remeditated
murder and felony murder are not distinct crimes; rather, they are alternative
theories of liability, and jurors need not unanimously agree on a particular theory



                                          43
of liability in order to reach a unanimous verdict.” (Sattiewhite, supra, 59 Cal.4th
at p. 479, citing People v. Benavides (2005) 35 Cal. 4th 69, 101.) We decline to
revisit these well-established principles here.

          G. Instructions Involving the Reasonable Doubt Standard
       Defendant argues that, taken together, the jury instructions “undermined
and diluted” the jurors’ duty to determine guilt beyond a reasonable doubt, in
violation of his federal constitutional rights to due process and trial by jury. (See
In re Winship (1970) 397 U.S. 358, 364.) We find no error and reject defendant’s
claims.
       First, defendant points to the set of instructions that describe the
relationship between the reasonable doubt requirement and circumstantial
evidence, CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1. Defendant argues that the
instruction to accept “reasonable” interpretations of circumstantial evidence, and
to reject unreasonable interpretations, improperly directed jurors to reach a finding
of guilt if such an interpretation appears reasonable, and ultimately led the jury to
believe it could convict appellant on a constitutionally inadequate standard of
proof. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, § 17.) We have
rejected similar arguments in the past, and do the same here. The jury was
properly instructed with CALJIC No. 2.90, which establishes the prosecution’s
burden of establishing the defendant’s guilt “beyond a reasonable doubt.”
Instructing the jury that any inferences it draws must be “reasonable” does not
vitiate this standard of proof, nor does it create an “ ‘ “impermissible mandatory
conclusive presumption of guilt.” ’ ” (People v. Wilson (2008) 43 Cal. 4th 1, 23.)
Rather, “these instructions properly direct the jury to accept an interpretation of
the evidence favorable to the prosecution and unfavorable to the defense only if no




                                          44
other ‘reasonable’ interpretation can be drawn.” (People v. Kipp (1998) 18
Cal. 4th 349, 375.)
       Defendant also points to the instructions regarding evidence of guilt
(CALJIC No. 2.01), discrepancies in testimony (CALJIC No. 2.21.1), willfully
false testimony (CALJIC No. 2.21.2), and conflicting testimony (CALJIC No.
2.22). These instructions guide the jury’s assessment of witness credibility and set
out the bases on which the jury may give greater or lesser weight to testimony.
Defendant argues that each of these instructions undermines the “reasonable
doubt” standard of proof by presenting a lesser standard of proof for a particular
piece of evidence, violating defendant’s constitutional rights to due process, a fair
trial, and trial by jury. (U.S. Const., 5th, 6th, 8th & 14th Amends.) In other cases
where the jury was also instructed with CALJIC No. 2.90, which establishes the
prosecution’s burden of proof, along with one or more of the instructions to which
defendant objects, we have rejected any claim that the instruction improperly
decreased or shifted the burden of proof, and we do the same here. (People v.
Samuels (2005) 36 Cal. 4th 96, 131 [rejecting argument that CALJIC No. 2.01
undermines requirement of proof beyond a reasonable doubt]; People v. Crew
(2003) 31 Cal. 4th 822, 848 [same, as to CALJIC No. 2.22]; People v. Carey
(2007) 41 Cal. 4th 109, 130–131 (Carey) [same, as to CALJIC Nos. 2.21.1 &
2.21.2].)
       Similarly, defendant argues that CALJIC No. 2.27, which addresses the
sufficiency of the testimony of one witness to prove a fact, improperly suggests
that the defense has the burden of proving facts, reducing the prosecution’s burden
of proof in violation of defendant’s rights to due process and a fair jury trial. (U.S.
Const., 6th & 14th Amends.) We rejected a similar claim in Carey, supra, 41
Cal.4th at page 131, and we do so here as well.



                                          45
       Finally, defendant takes issue with the instruction regarding premeditated
and deliberate murder, CALJIC No. 8.20, which directs the jury to determine
whether a killing was murder of the first degree if it was “the result of deliberation
and premeditation, so that it must have been formed upon pre-existing reflection
and not under a sudden heat of passion or other condition precluding the idea of
deliberation.” (Italics added.) Defendant argues that the use of the word
“precluding” places an impermissible burden on the defendant to eliminate the
possibility of premeditation. We have rejected this claim before, and we do so
again here. (People v. Jurado (2006) 38 Cal. 4th 72, 127.)

           H. Claim of Prosecutorial Misconduct
       Defendant contends that the prosecutor committed prejudicial misconduct
through a variety of penalty phase references to Osama bin Laden, Al Qaeda, and
the terrorist attacks of September 11, 2001, which had taken place less than two
months before the trial began. Defendant argues that the prosecution “fueled
anti-Arab sentiment” by making these references. We conclude that defendant has
forfeited these claims, and they fail on the merits in any event.
       During the penalty phase, seeking to provide an example of what it means
to be “evil,” the prosecutor asked a defense witness who was testifying to
defendant’s mental health whether Osama bin Laden was evil. Later, in his
closing argument, the prosecutor addressed whether persons with delusions can
still be held responsible for their actions, stating: “You know what’s interesting?
. . . It’s interesting to think about this whole notion of delusions or hallucinations.
And I was thinking about, you know, when you think about the religions of the
world, not that I’m any expert on the religions of the world, but I think about, you
know, Moses talking about God speaking to him from a burning bush. And the
finger of God coming out and writing the 10 commandments. . . . Islam was given



                                          46
to Mohammed in [a] dream. All right? These were delusional people under
today’s psychiatry. Now, I’m not saying—I’m not trying to make more of that
than it is, but what I am telling you is it is interesting because psychiatry doesn’t
seem to really fit there for whatever that’s worth. And psychiatry would seem to
want to label with a mental disorder any bad behavior. You know those—and I’m
just giving an example. I’m not trying to make more of this than it is, but, I mean,
you know, those—these people in Al Qaeda, they’re all schizophrenic because
they all became suicide bombers because they had this vision that there’s going to
be 48 or 50 virgins waiting for them on the other side. And maybe they were.
Maybe they were because the numbers are so great of people who are—you know,
who are schizophrenic. But it doesn’t stop them from doing evil acts. And
nothing about the defendant’s mental disturbance stopped him from doing evil
acts.”
         The prosecutor also referred to September 11 while urging the jury to
consider the moral gravity of a decision whether to issue the death sentence: “And
so here’s the government represented by me. You know, I’m in essence the
government speaking, and I’m saying, ‘Take a life. Take a life.’ And it’s not easy
for me to do. . . . You know, we are a compassionate people. We have, out of the
tragedy that happened in September, we found out how compassionate we are.
There’s just an outpouring of support and patriotism, whatever you want to call it,
we have that in our makeup. Here’s somebody from the government saying, ‘let’s
execute somebody; let’s execute a man, a person that’s in this courtroom.’ All
right? So I’m in that position that’s rather odd, frankly, and that’s strange for me
and, perhaps, is for you as well and the defense attorneys.”
         Defendant also points to the prosecutor’s references to defendant’s national
origin: “I’m trying to talk about someone . . . who has all these capabilities. . . .
He managed to immigrate to America. He managed to get out of Egypt and to

                                          47
work his way here. He did it. Okay? To beg for money. To buy food. You
heard people talk about coming into the store [to] buy soda, to buy chicken, and
ask them to put three chickens in a plastic bag. . . . He’s able to pay . . . $100 a
month for a shed. Able to do that. No one is having—seeing him responding to
internal stimuli out in the street. No one is talking about that going on. [¶] He’s
able to prey on a child. He’s not a rabid dog who’s just automatically aggressive
and violent who’s just turned on—who’s just biting and biting and biting. He’s
able to choose when he wants to be violent. He’s able to choose when he wants to
satisfy his grotesque, perverse sexual needs. He’s able to make that choice. He is
not a robot. He’s not a rabid dog.” The prosecutor also stated: “Mr. Ghobrial
came into this country and within a short period of time he committed the ultimate
crime. He committed the ultimate felony.”
       Finally, defendant points to one reference to “terrorists” during the
prosecutor’s guilt phase closing argument. The comment arose while the
prosecutor sought to undermine the defense expert’s insistence that a sperm cell’s
head and tail are necessary for identification, consistent with FBI protocol. The
prosecutor stated, “the FBI right now is out there trying to hunt down terrorists.
I’m not trying to take a shot at them.” The prosecutor then criticized the FBI’s
protocol for sperm identification, characterizing it as being “in the minority.”
Though defendant concedes that this single reference did not constitute
misconduct, he urges us to consider the cumulative effect of all references to
September 11 and terrorists throughout the guilt and penalty phases.
       We evaluate these comments according to a well-established framework.
“A prosecutor commits misconduct when his or her conduct either infects the trial
with such unfairness as to render the subsequent conviction a denial of due
process, or involves deceptive or reprehensible methods employed to persuade the
trier of fact.” (People v. Avila (2009) 46 Cal. 4th 680, 711.) “ ‘As the United

                                          48
States Supreme Court has explained, the prosecutor represents “a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done.” (Berger v. United States (1935) 295
U.S. 78, 88.)’ ” (People v. Hill (1998) 17 Cal. 4th 800, 820.) A prosecutor is,
however, “ ‘ “ ‘given wide latitude during argument,’ ” ’ ” and may draw from
matters that are “ ‘ “ ‘not in evidence, but which are common knowledge or are
illustrations drawn from common experience, history or literature.’ ” ’ ” (Id. at
p. 819.)
       If we do find misconduct occurred during the penalty phase, “we will
affirm the judgment unless we conclude there is a reasonable (i.e., realistic)
possibility that the jury would have rendered a different verdict had the error or
errors not occurred.” (People v. Brown (1988) 46 Cal. 3d 432, 448.) In general,
we will not find brief, passing comments by the prosecutor to be prejudicial. (See
People v. Wrest (1992) 3 Cal. 4th 1088, 1107.) “For prosecutorial misconduct at
the penalty phase, we apply the reasonable-possibility standard of prejudice[,]”
which is the “ ‘same in substance and effect’ as the beyond-a-reasonable-doubt
test for prejudice articulated in Chapman v. California (1967) 386 U.S. 18.”
(People v. Wallace (2008) 44 Cal. 4th 1032, 1092.)
       To preserve such a claim for appeal, the “ ‘defendant must make a timely
and specific objection and ask the trial court to admonish the jury to disregard the
improper argument. [Citation.]’ [Citation.] A failure to timely object and request
an admonition will be excused if doing either would have been futile, or if an
admonition would not have cured the harm.” (People v. Linton (2013) 56 Cal. 4th
1146, 1205 (Linton).)
       Defendant concedes that he objected to only one of the prosecutor’s
comments, when he referred to Osama bin Laden as an illustration of “an evil

                                           49
man” while questioning a psychiatrist who had testified for the defense. The trial
court sustained the objection. Because defendant objected only on the grounds of
relevance and sought no admonition, this claim is forfeited. (People v. Samayoa
(1997) 15 Cal. 4th 795, 841; People v. Lopez (2013) 56 Cal. 4th 1028, 1073.) We
are, furthermore, unpersuaded by defendant’s conclusory assertion that no
admonition could have cured the prejudicial effect of the comments taken together
because the mere mention of the September 11 attacks, just months after those
events, “fueled an already incendiary situation [and] encouraged the jurors to act
on latent biases.” Defendant’s misconduct claims with respect to all comments are
forfeited.
       In any event, defendant’s claims lack merit. Although the prosecutor
briefly referred to Osama bin Laden, Al Qaeda, and the terrorists who perpetrated
the September 11 attacks, the prosecutor never suggested that defendant’s crime
was somehow comparable to those attacks or that defendant was equally worthy of
condemnation. Indeed, the prosecutor’s references were not clearly directed at
defendant at all, but were instead designed to illustrate general legal points
relevant to the prosecutor’s argument. The prosecutor did not commit misconduct.
(Compare People v. McDermott (2002) 28 Cal. 4th 946, 1003 (McDermott)
[finding no misconduct where the prosecutor compared the defendant to “a Nazi
working in the crematorium by day and listening to Mozart by night” because the
prosecutor “was not comparing defendant’s conduct in arranging [the] murder
with the genocidal actions of the Nazi regime,” and instead “was arguing that
human beings sometimes lead double lives, showing a refined sensitivity in some
activities while demonstrating barbaric cruelty in others”] with People v. Zurinaga
(2007) 148 Cal. App. 4th 1248, 1260 [finding nonprejudicial misconduct where the
prosecutor made an extended comparison of the defendants’ robbery and false
imprisonment offenses to the hijackings that occurred on September 11, 2001].)

                                          50
       We acknowledge the unique circumstances of the political climate that
immediately followed the events of September 11, 2001, and existed at the time of
defendant’s trial. But while we have advised prosecutors generally to “ ‘refrain
from comparing defendants to historic or fictional villains, especially where the
comparisons are wholly inappropriate or unlinked to the evidence,’ ” we have also
held that it is not misconduct for a prosecutor to invoke examples to illustrate a
general point about the operation of the law. (People v. Jones (1997) 15 Cal. 4th
119, 180, overruled on another ground in People v. Hill (1998) 17 Cal. 4th 800,
832, fn. 1; see also McDermott, supra, 28 Cal.4th at p. 1003.)
       Nor do the prosecutor’s comments on defendant’s recent immigration from
Egypt rise to the level of misconduct. The jury had already heard testimony
regarding defendant’s life in Egypt and about his immigration to the United States.
In context it is clear that the prosecutor was not referring to defendant’s
immigration from Egypt in an effort to inflame the jury’s biases, but instead to
minimize the mitigating impact of defendant’s lack of criminal history and
evidence concerning his mental health.
       In any case, given the nature and brevity of the prosecutor’s comments, as
well as the jury instructions and evidence, we see no reasonable possibility that the
prosecutor’s comments affected the jury’s verdict. (See People v. Williams (2010)
49 Cal. 4th 405, 467.)

          I. Challenges to California’s Death Penalty Scheme under the
             State and Federal Constitutions and International Law
       Defendant raises a number of challenges to California’s death penalty
scheme. We have repeatedly rejected similar claims in the past, and we do so
again here.
       First, defendant argues that Penal Code section 190.2 is impermissibly
overbroad in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to


                                          51
the United States Constitution. We disagree. “ ‘[T]he various special
circumstances are not so numerous as to fail to perform the constitutionally
required narrowing function, and the special circumstances are not unduly
expansive, either on their face or as interpreted by this court.’ ” (Linton, supra, 56
Cal.4th at p. 1214.) Nor does Penal Code section 190.3, factor (a)’s directive to
the jury to consider the “circumstances of the crime” result in the arbitrary and
capricious imposition of the death penalty in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution. (Linton, at
p. 1215; id. at p. 1214; Tuilaepa v. California (1994) 512 U.S. 967, 976 [“[T]his
California factor instructs the jury to consider a relevant subject matter and does
so in understandable terms. The circumstances of the crime are a traditional
subject for consideration by the sentencer, and an instruction to consider the
circumstances is neither vague nor otherwise improper under our Eighth
Amendment jurisprudence.”].)
       Defendant also takes issue with the burden of proof at the penalty phase.
“Neither the federal nor the state Constitution requires that the penalty phase jury
find beyond a reasonable doubt that aggravating factors outweigh mitigating
factors before determining whether or not to impose a death sentence,” and the
United States Supreme Court’s Sixth Amendment jurisprudence, including
Apprendi, supra, 530 U.S. 466, does not demand such a requirement. (People v.
Parker (2017) 2 Cal.5th 1184, 1232.) Moreover, “ ‘[t]he death penalty is not
unconstitutional for failing to impose a specific burden of proof as to the existence
of aggravating circumstances, the greater weight of aggravating circumstances
over mitigating circumstances, or the appropriateness of a death sentence.’
[Citation.] Nor is the court required to instruct jurors that there is no burden of
proof in the penalty phase.” (Ibid.)



                                          52
       Defendant also argues that the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution require juror unanimity as to the
aggravating circumstances that warrant the death penalty and as to any findings of
prior criminal activity. We have rejected these claims in the past, and we decline
to revisit those conclusions here. (People v. Prieto (2003) 30 Cal. 4th 226, 275
[aggravating circumstances]; People v. Dykes (2009) 46 Cal. 4th 731, 799 (Dykes)
[prior uncharged criminal activity].)
       Defendant also takes issue with the use of CALJIC Nos. 8.85 and 8.88,
instructions provided to the jury during the penalty phase. We have previously
held that these instructions provide the jury with sufficient guidance for the
administration of the death penalty to meet constitutional standards, and we reject
defendant’s additional arguments that CALJIC No. 8.88 is constitutionally
deficient. (People v. Jones (2012) 54 Cal. 4th 1, 78–79, 87.) First, the phrase “so
substantial” is not impermissibly vague or ambiguous, as defendant contends;
rather, “the pattern instruction ‘properly instructs the jury on its sentencing
discretion and the nature of its deliberative process.’ ” (Dykes, supra, 46 Cal.4th
at p. 816.) Second, defendant’s claim that CALJIC No. 8.88 is constitutionally
deficient because it fails to direct the jury to determine whether the death penalty
is “ ‘appropriate,’ ” rather than “ ‘warrant[ed],’ ” is meritless. (People v. Rogers




                                          53
(2009) 46 Cal. 4th 1136, 1179.) Similarly, we reject the claim, as we have in the
past, that the instruction should specify that a life sentence is mandatory if the jury
finds that the factors in mitigation outweigh the factors in aggravation. (People v.
Parson (2008) 44 Cal. 4th 332, 371.) The instruction is not deficient for failing to
specify that defendant had no burden of proof with respect to the circumstances in
mitigation. (Ibid.) Nor is it deficient for failing to inform the jury that there was
no need for unanimity as to those circumstances; such specific instructions are not
required under the Sixth, Eighth, or Fourteenth Amendments to the United States
Constitution. Finally, “[t]he trial court’s failure to instruct the jury on the
presumption of life did not violate defendant’s constitutional rights to due process,
to be free from cruel and unusual punishment, to a reliable determination of his
sentence, and to equal protections of the laws.” (Parson, at p. 371.)
       Next, defendant argues that the jury’s failure to make written findings
during the penalty phase of trial violates his rights under the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, and deprives him of his
right to meaningful appellate review. This claim is meritless. (People v. Johnson
(2016) 62 Cal. 4th 600, 656.)
       Defendant also contends the trial court should have deleted any
inapplicable sentencing factors from the instructions, and its failure to do so likely
confused the jury, impeding their ability to reach a reliable penalty determination
and violating his constitutional rights. We disagree. (People v. Burney (2009) 47
Cal. 4th 203, 261.)




                                           54
          Defendant urges that the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution require courts to engage in intercase
proportionality review in order to guard against arbitrary, unreviewable decisions
or violations of equal protection or due process. The United States Constitution
does not compel such review. (People v. Jones, supra, 54 Cal.4th at p. 87.) Nor
does California’s capital sentencing scheme violate the Fifth and Fourteenth
Amendments’ equal protection guarantees. Rather, “[b]ecause capital defendants
are not similarly situated to noncapital defendants, California does not deny capital
defendants equal protection by providing certain procedural protections to
noncapital defendants that are not provided to capital defendants.” (Jones, at
p. 87.)
          Finally, we have previously rejected the argument that California’s use of
the death penalty violates international law, the Eighth and Fourteenth
Amendments, or evolving standards of decency, and we decline to revisit those
conclusions here. (Linton, supra, 56 Cal.4th at p. 1217.)

             J. Cumulative Error
          Defendant urges that, even if each error he has asserted was harmless, they
were cumulatively prejudicial. We have found no errors to cumulate and thus no
possible cumulative prejudice that would have denied defendant a fair trial.




                                           55
                                   III. DISPOSITION
       The judgment is affirmed.


                                                  KRUGER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
BUTZ, J.*




*      Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                         56
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Ghobrial
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S105908
Date Filed: June 21, 2018
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: John J. Ryan

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Denise Anton and
Anne W. Lackey, Deputy State Public Defenders, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Collette C. Cavalier, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Anne W. Lackey
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Collette C. Cavalier
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9201