Filed 4/21/16




      IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S022998
           v.                        )
                                     )
ANTHONY LETRICE TOWNSEL,             )
                                     )                         Madera County
           Defendant and Appellant.  )                       Super. Ct. No. 8926
____________________________________)


        A jury convicted defendant Anthony Letrice Townsel of the first degree
murders of Mauricio Martinez and Martha Diaz (Pen. Code, § 187, subd. (a);
further statutory references are to this code unless otherwise indicated), and of
attempting to dissuade a witness from testifying (§ 136.1, subd. (c)(1)); it
acquitted him of shooting at an inhabited dwelling (§ 246). It also found true
multiple-murder and witness-killing special-circumstance allegations (§ 190.2,
subd. (a)(3), (10)) and allegations that he personally used a firearm in murdering
Diaz (§ 12022.5) and that her murder resulted in the termination of a pregnancy
(§ 12022.9). Following a penalty phase, the same jury returned a verdict of death,
and the trial court sentenced him accordingly. This appeal is automatic. (§ 1239,
subd. (b).)
        We reverse the conviction for dissuading a witness, vacate the witness-
killing special-circumstance finding, and otherwise affirm the judgment.




                                          1
                     I. FACTUAL AND PROCEDURAL BACKGROUND
       A. Guilt Phase
       In September 1989, Martha Diaz and her son Andrew were staying in the
home of her sister, Teresa Martinez, on Saunders Road in Madera. Also living
there were Teresa‘s husband, Mauricio; their two children; and Mauricio‘s friend
Luis Anzaldua. Mauricio‘s parents and siblings lived in the house next door. Diaz
was six months pregnant with defendant‘s child.
       On September 18, 1989, defendant came to Teresa‘s house and spoke with
Diaz about the baby. The conversation was not amicable.
       On the evening of September 21, 1989, defendant encountered Luidivina
Hernandez, a mutual friend of his and Diaz‘s. He asked her if she had seen or
spoken to Diaz, and whether Diaz had said anything about him. Hernandez
acknowledged having seen Diaz and told him Diaz had said only that they were
having problems. Defendant told her he wanted nothing further to do with Diaz or
the baby, and that if he couldn‘t have her, neither could anyone else.
       About 10:00 the following morning, defendant and a companion pulled up
to Teresa‘s house in a brown car. Defendant got out, handed Teresa an envelope
containing a letter, and angrily told her to tell Diaz she had better stay in the
house. After he drove away, Teresa showed Diaz the envelope and letter, which
was dated September 20, 1989, and addressed to defendant from the Madera
Justice Court. It informed him that a criminal complaint charging him with a
violation of section 273.5 (battery or willful infliction of injury on a spouse or
cohabitant) was on file against him and directed him to appear in court on
November 7, 1989.
       About 5:00 that evening, Teresa, Diaz, and their children, along with Luis
Anzaldua, were sitting in front of Teresa‘s house. Mauricio‘s brother, Rene, was
near an ice cream truck parked between Teresa‘s house and his residence.

                                           2
Defendant and a passenger pulled up in a gray Cadillac. From the car, defendant
made a hand gesture like a pistol, yelled at Diaz to get back in the house and that
―your ass is mine after the baby is born,‖ and drove away.
       Three hours later, around 8:00 p.m., Teresa and her family, including Diaz,
along with Rolando Martinez and Luis Anzaldua, were in her house when they
heard gunshots outside. Rene and his sister Valerie, next door, also heard the
gunshots. Rene and Valerie went to the window and saw defendant shooting a
handgun in the air before getting into a gray Cadillac and driving away. After the
shooting, family members collected shell casings from the street and gave them to
Madera County Sheriff‘s Deputy Gerald Stephen Kirkland, telling him defendant
was the shooter.
       Still later that night, around 11:00 p.m., Rene, Rolando, and Anzaldua
heard more gunshots outside their houses. Rene and Rolando saw shots being
fired from the passenger window of a moving gray Cadillac. Rolando saw two
figures in the car, which drove away at a high speed without stopping. Deputy
Kirkland again responded to the family‘s call to the police, and collected more
shell casings. Bullet holes were later seen in the garage door and a window of
Teresa‘s house.
       About 11:30 the next morning, Anzaldua, Diaz, and Andrew were driving
in Anzaldua‘s car. Stopping at an intersection, they noticed two men standing
near a gray Cadillac parked at a gas station. Frightened, Diaz said, ―There he is.‖
Anzaldua understood her to be referring to defendant. One of the two men got
into the driver‘s seat of the Cadillac.
       Believing he was going to be chased, Anzaldua drove into town, going as
fast as 70 miles per hour. The Cadillac followed, matching his speed. As
Anzaldua neared the local sheriff‘s station, the Cadillac crashed into a fire hydrant.
Anzaldua and Diaz got out of his car and tried to enter the station, only to find the

                                          3
front and back doors locked. Seeing a tall, dark-complected man wearing a white
T-shirt and blue pants walking toward them, Anzaldua, who had worked in the
station as a janitor, led Diaz to the basement. There they hid for about 10 minutes
before going upstairs, where they told the deputy on duty what had happened. The
deputy informed them a suspect was already in custody at the crash site. Anzaldua
and Diaz went to the site and saw a Mexican male in custody. Anzaldua and Diaz
then returned to their residence, and Anzaldua went to Rene‘s house next door to
visit.
         The same day, between about 12:30 and 12:45 p.m., Teresa and Diaz were
in the living room of Teresa‘s home with their children and Mauricio was in the
master bedroom. Anzaldua and Mauricio‘s siblings Rene, Valerie and Marybell
were next door at Mauricio‘s parents‘ home. A neighbor, David Sepulveda, saw a
gray car, possibly an LTD or a Thunderbird, park next to his fence. A Black man
he later identified as defendant exited the passenger side of the car, which drove
away. In Teresa‘s house Diaz, seeing defendant approach, picked up her son and
ran from the living room. Teresa stepped toward the front door intending to ask
defendant what he wanted with Diaz. Defendant opened the door and entered, a
gun at his side in his left hand, and Teresa froze. Defendant looked at her without
saying anything and walked down the hallway, bumping into Mauricio, who had
emerged from the bedroom. Defendant raised his gun and fired twice, hitting
Mauricio in the chest. Defendant continued toward the master bedroom, stopping
in the doorway to fire three shots in rapid succession. Teresa fled to her in-laws‘
house next door.
         Inside the in-laws‘ house, Rene, Valerie, Marybell and Anzaldua heard
shots being fired. Sepulveda also heard the shots from inside his home and told
his wife to call 911. Rene, Valerie and Marybell ran outside and met Teresa, who
told them the shooter was defendant. All four took refuge in the in-laws‘ house,

                                          4
but Teresa soon became concerned about her child, who was still in her house.
She started to leave the in-laws‘ house, but just then defendant left Teresa‘s house,
firing his gun in the air, and approached the in-laws‘ house. Rene retrieved his
rifle and loaded it as Teresa called 911. He and Teresa went to the open garage
door and saw defendant walk toward Raymond Thomas Street, which intersects
Saunders Road, and fire into the gas tank of Anzaldua‘s car, parked in front of
Teresa‘s house. Rene took aim and shot defendant in the back of the neck.
Defendant fell and crawled some distance before collapsing.
       Teresa and Rene ran back to her house and found Mauricio lying prone on
the front porch. Inside the house, Rene found Diaz in the master bedroom with
bullet holes in her face and neck, her son standing in front of her crying.
       When Sergeant Bob Holmes of the Madera County Sheriff‘s Department
arrived on the scene, defendant was lying supine on the ground, holding a 9-
millimeter Taurus semiautomatic handgun with the hammer cocked and ready to
fire. Sergeant Holmes kicked the gun out of his hand. Defendant identified
himself and said he was the shooter. Madera County Sheriff Glenn Seymour
arrived shortly after Sergeant Holmes and remained with defendant while Holmes
investigated. Sheriff Seymour asked defendant what was going on. Defendant
replied: ―I did it. There‘s no one else to worry about.‖ David Sepulveda
approached the sheriff and told him defendant was the shooter. Defendant told
Sepulveda to shut up, adding, ―or you will get it, too.‖
       Teresa Martinez approached defendant as he lay on the ground and asked,
―Why my husband?‖ Defendant indicated he was not through yet and ―Morris‖
was going to ―come and finish you off.‖ As paramedics were attending to him,
defendant said, ―I was paid to do a job and I did it.‖
       Autopsy results showed that Mauricio had been shot twice. One bullet,
fired at close enough range to leave powder residue and tattooing on the left side

                                          5
of his face, entered near the right armpit and exited on the right side of the chest
without hitting any vital organs. The second, fatal bullet entered the upper right
shoulder, moving in a downward trajectory to strike a pulmonary artery within the
lower lobe of the right lung and passing through the thoracic aorta, striking the left
kidney, and exiting the left flank. Mauricio would have been crouched very low
or bent at the waist when this second bullet entered, consistent with his having
assumed a defensive posture.
       Diaz had been shot five times, suffering wounds to the upper right thigh,
right arm, left ear, nose, and the nape of the neck. The latter two wounds, which
were fatal, fractured the base of her skull and caused a brain stem concussion. Her
six-month fetus appeared normal and ―died simply because he lost his life support,
his mother.‖
       Criminalist John Hamman tested defendant‘s handgun and determined that
its magazine could hold 15 rounds and the chamber an additional round, for a total
of 16 rounds. Cartridge casings and bullets recovered from the crime scene were
all definitely or probably fired by defendant‘s gun.
       In an effort to show that defendant lacked the mental state required for the
charged offenses, the defense presented the testimony of three psychologists who
had evaluated defendant and concluded he is mildly to moderately intellectually
disabled.1 (Their testimony is summarized below in the discussion of related
claims.) In rebuttal, the prosecution presented the testimony of psychiatrist Lee

1      At trial, all parties used the term ―mentally retarded,‖ but in accordance
with current law and usage, this opinion uses the term ―intellectually disabled‖
except when quoting. (See Stats. 2012, chs. 448 [the Shriver ―R-Word‖ Act,
which revised various statutes to replace references to ―mental retardation‖ with
the term ―intellectual disability‖], and 457 [similarly replacing references to
―mental retardation‖].)




                                          6
Coleman, M.D., to the effect that IQ testing is not a reliable measure of
intelligence, behavior is the best indicator of mental state, and mental health
professionals have no greater ability than lay persons to tell who is malingering.
(His testimony is discussed below in connection with related claims.) The
prosecution also presented evidence that defendant was placed in special education
classes in school because of a learning handicap, not because he was thought to be
intellectually disabled; he functioned well in prior employment; and, while
incarcerated, he regularly requested and appeared to read daily newspapers. The
parties stipulated that defendant had a California driver‘s license.
        B. Penalty Phase
           1. Aggravating evidence
        The prosecution presented evidence that defendant had engaged in violent
conduct on multiple occasions before and after the murders. On August 31, 1989,
Martha Diaz was babysitting at her friend Marcella Lopez‘s apartment. When
Lopez returned home, defendant was outside the building and Lopez talked with
him for a few minutes. Diaz emerged from the apartment to get something from
her car, and the two women entered the apartment. A few minutes later, defendant
knocked at the door and asked to speak with Diaz. Lopez told him Diaz did not
want to talk to him and that he should leave. Instead, defendant pushed his way
into the apartment and asked to speak with Diaz in private. She refused and they
began to argue. Finally, Diaz told him to leave or she would call the police.
Defendant became angry and told her not to call the police because he had a
warrant for his arrest and would go to jail. Diaz said, ―Well, then, just leave,‖ and
picked up the phone. Defendant punched her twice with his fist on her mouth and
head.
        On the evening of May 31, 1990, Sergeant Rebecca Davis, a correctional
officer with the Madera County Department of Corrections, entered the jail unit

                                          7
where defendant was sitting on a plastic chair in the open doorway of his cell.
Twice Sergeant Davis told him to ―lock down, go into his room and close the
door,‖ and, defendant failed to respond. The third time she gave the order,
defendant threw his chair at her. She stepped aside to avoid the chair, and pushed
him into his cell and locked it.
         On June 28, 1990, Madera County Correctional Officer Frank Reiland
entered defendant‘s cell to calm him down from an agitated state. Defendant tried
to force his way past Officer Reiland and, when Reiland pushed back, defendant
began to scream obscenities at him, kicked him, and grazed his temple with a
punch.
         Beatrice Cruz dated defendant in late 1985. On April 14, 1986, after they
had stopped seeing each other, defendant appeared outside her home. A male
friend who was visiting Cruz went outside and began arguing with defendant.
Cruz told defendant that if he did not leave, she would call the police. He called
her a bitch and hit her in the mouth. Cruz reported the incident to the police, and
defendant was arrested. Sometime later, defendant phoned Cruz to say he was
going to kill her ―wetback,‖ referring to her male friend, and she had better get out
of her house. Defendant pleaded guilty to a misdemeanor charge of battery arising
out of the incident.
            2. Mitigating evidence
         Defendant‘s mother, Catherine Townsel, testified defendant was one of five
children in a close-knit, church-oriented family. As a child, defendant got along
with his siblings and other children. The Townsels were the only Black family in
the neighborhood, and the children socialized mainly with White and Mexican
children. Defendant was immature when he started school and had difficulty
reading and keeping up with the rest of his class even though Mr. and Mrs.
Townsel worked with him. Mrs. Townsel agreed to the school personnel‘s

                                          8
suggestion that he be placed in special education classes. Clefo Townsel,
defendant‘s grandfather, taught Sunday school and recalled that defendant could
not keep up with the other children in the class. Defendant had no unusual
behavior problems, but on one or two occasions, with his mother‘s permission, he
was paddled at school for disobedience. When defendant reached junior high
school, he began to do better as a result of the help he received in subjects he was
slow in, and his mother did not recall any behavioral problems during that period.
During high school, defendant dated Beatrice Cruz, who was older than he; Mrs.
Townsel did not approve of the relationship. At 17, defendant was not doing well
in school, and he eventually dropped out. He worked with his father doing manual
labor, and at Sunkist and Boyle Electric. David Boyle testified defendant was
always very cooperative and had no problems with the other employees.
Defendant was mechanically inclined and could fix lawn mowers and cars.
       Christine Ortiz and Elena Esparza testified that during the summer of 1988,
they socialized with defendant, and found him to be a nice person with a sense of
humor who did not drink or fight.
       Bailiffs Jeffrey Doran and Jess Ozcoidi testified they had no difficulty with
defendant while assigned to the courtroom.
       Correctional Sergeant Allen Patchell testified that, following his review of
Sergeant Davis‘s disciplinary report, he concluded defendant had not thrown the
chair at Davis; rather, Patchell believed defendant slammed the chair toward the
floor and it bounced toward Davis.
       Dr. Frank Powell reviewed Dr. Coleman‘s testimony and testified it did not
lead him to question the results of the IQ tests he had administered to defendant.
Dr. Coleman‘s criticisms of psychological testing were not, according to Dr.
Powell, widely accepted in the field of psychology.



                                          9
                                       II. DISCUSSION
         A. Guilt Phase Issues
            1. Failure to suspend proceedings and appoint director of regional
center
         On November 2, 1989, before the commencement of the preliminary
hearing in justice court and nearly 15 months before the start of jury selection,
defense counsel declared a doubt regarding defendant‘s competence to stand trial
based on her interactions with him and on a psychologist‘s evaluation, which she
did not further describe or tender to the court. The court suspended proceedings
pursuant to section 1368 and certified defendant to superior court for a
competency determination. The superior court appointed two psychiatrists,
Dr. Charles A. Davis and Dr. Howard Terrell, to evaluate defendant and assess his
competence to stand trial. On December 1, 1989, the superior court held a
competency hearing at which the parties stipulated to submitting the issue on the
psychiatrists‘ reports. Both psychiatrists concluded defendant was malingering;
Dr. Davis opined defendant was competent, while Dr. Terrell believed there was a
possibility that, although malingering, defendant was suffering from a concurrent
mental disorder that was impairing his ability to cooperate with his counsel in the
preparation of a defense, and on that basis recommended the court find him
incompetent. The court found defendant competent to stand trial.
         During the guilt phase of trial, on April 3, 1991, the defense presented the
testimony of psychologist Dr. Lea Christensen that she had evaluated defendant in
late October 1989 and found him then to be intellectually disabled and
incompetent to stand trial. Although trial counsel never renewed her concerns
regarding defendant‘s competence, defendant now contends Dr. Christensen‘s
testimony constituted substantial evidence that he was both intellectually disabled
and incompetent to stand trial, triggering a duty on the part of the trial court to

                                           10
suspend the proceedings and appoint the director of the regional center for the
developmentally disabled to evaluate him pursuant to section 1370.1. The trial
court‘s failure to do so, he contends, violated his rights to due process and a
reliable guilt and penalty determination, requiring reversal of the judgment. We
disagree.
       The governing legal principles are well established. ― ‗A person cannot be
tried or adjudged to punishment while mentally incompetent. (§ 1367, subd. (a).)
A defendant is mentally incompetent if, as a result of a mental disorder or
developmental disability, he or she is unable to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a defense in a rational
manner. (Ibid.)‘ ‖ (People v. Koontz (2002) 27 Cal.4th 1041, 1063.) ― ‗Both the
due process clause of the Fourteenth Amendment to the United States Constitution
and state law require a trial judge to suspend 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.‘ ‖ (People v. Halvorsen
(2007) 42 Cal.4th 379, 401; see also § 1368, subds. (a), (b); People v. Pennington
(1967) 66 Cal.2d 508, 518.)
       In a competency trial, ―[i]f it is suspected the defendant is developmentally
disabled, the court shall appoint the director of the regional center for the
developmentally disabled . . . to examine the defendant.‖ (§ 1369, subd. (a).)
― ‗[D]evelopmental disability‘ means a disability that originates before an
individual attains 18 years of age, continues, or can be expected to continue,
indefinitely and constitutes a substantial handicap for the individual . . . . [T]his
term shall include intellectual disability . . . .‖ (§ 1370.1, subd. (a)(1)(H).)
―[A]ppointment of the director of the regional center for the developmentally
disabled (§ 1369, subd. (a)) is intended to ensure that a developmentally disabled

                                           11
defendant is evaluated by experts experienced in the field, which will enable the
trier of fact to make an informed determination of the defendant‘s competence to
stand trial.‖ (People v. Leonard (2007) 40 Cal.4th 1370, 1391 (Leonard).) The
erroneous failure to appoint the director of the regional center does not require
reversal unless the error deprived the defendant of a fair competency trial. (Id. at
p. 1390.)
       Defendant does not contend that the pretrial court erred in failing to initiate
developmental disability competency proceedings. Rather, he contends Dr.
Christensen‘s trial testimony—that in late October 1989, some 18 months earlier,
she had concluded defendant was intellectually disabled and incompetent to stand
trial—constituted substantial evidence of his present incompetence due to
intellectual disability, triggering the trial court‘s statutory obligation to suspend
proceedings, appoint the director of the regional center to evaluate defendant, and
hold a second competency hearing. (§ 1369, subd. (a).) Its failure to do so,
defendant urges, requires that we reverse the judgment.
       In support, defendant relies on People v. Castro (2000) 78 Cal.App.4th
1402 (Castro). In that case, the defense counsel declared a doubt as to the
defendant‘s competence to stand trial and requested the appointment of the
director of the regional center based on a psychologist‘s opinion that the defendant
had a developmental disability classified as the ―most severe.‖ (Id. at pp. 1410–
1411.) The trial court refused to appoint the director of the regional center and
instead appointed a psychiatrist to evaluate the defendant‘s competence. (Id. at
p. 1411.) The psychiatrist reported that the defendant had a learning disorder but
was not incompetent, and the trial court reinstated criminal proceedings. (Ibid.)
The defendant pleaded guilty to second degree murder. New counsel substituted
in to the case and declared a doubt regarding the defendant‘s competence to stand
trial but did not specifically request the appointment of the director of the regional

                                           12
center. (Id. at p. 1412.) The trial court appointed a second psychiatrist to
reevaluate the defendant‘s competence. (Ibid.) The second psychiatrist reported
that, although the defendant had a learning disability, she had no ―psychiatric
disease‖ and was ―able to understand the nature and purpose of the proceedings‖
against her. (Ibid.) The trial court again found the defendant competent and
reinstated criminal proceedings, eventuating in the denial of her motion to
withdraw her plea and subsequent sentencing. (Ibid.) The Court of Appeal
reversed, holding that the court‘s error in failing to appoint the director of the
regional center violated state law and the defendant‘s right to due process and
deprived it of jurisdiction to proceed. (Leonard, supra, 40 Cal.4th at pp. 1390–
1391.)
         As defendant recognizes, this court in Leonard, supra, 40 Cal.4th 1370,
disapproved Castro, supra, 78 Cal.App.4th 1402, to the extent it employed a per
se rule of reversal for error in the failure to appoint the director of the regional
center in connection with competency proceedings involving an allegedly
developmentally disabled defendant. (Leonard, supra, at p. 1389.) We reasoned
that, although the complete failure to hold a competency hearing requires reversal
of a conviction, the failure to appoint the director of the regional center is a less
egregious error, requiring reversal only if it deprived the defendant of a fair
competency trial. (Id. at p. 1391, fn. 3.) In Castro, we said, the failure to appoint
the regional director did have such an effect because neither of the court-appointed
psychiatrists made any ― ‗attempt to determine [the defendant‘s] intelligence level
or assess the extent of her developmental disability.‘ ‖ (Leonard, at p. 1390.)
Instead, their examinations ―focused on whether [the defendant] had any mental
disease or mental illness, which is an entirely separate basis for a finding of
incompetency than developmental disability. (§ 1367.)‖ (Castro, at p. 1418.)
Hence, the procedure followed in Castro violated both the letter and the spirit of

                                           13
section 1369, and the Court of Appeal did not err in reversing the judgment in that
case. In Leonard, by contrast, we noted ―the trial court‘s competency
determination was based on evidence from experts who were familiar with
defendant‘s developmental disability and who considered it in evaluating his
competence.‖ (Leonard, at p. 1390.) The error in Leonard therefore did not
prejudice the defendant. (Ibid.)
       Here, defendant argues, as in Castro and unlike in Leonard, the record
contains no evidence Drs. Terrell and Davis, the psychiatrists who evaluated his
competence, had any experience in dealing with intellectually disabled persons or
qualifications sufficient to render a diagnosis of intellectual disability, and their
examinations clearly focused on whether he suffered from mental illness, rather
than intellectual disability. He points to the testimony of his expert, Dr.
Christensen, that what may appear to be malingering behavior to an evaluator
without expertise in intellectual disability, or one who has not tested a defendant
for intellectual disability, may actually be evidence of intellectual disability.
Indeed, he claims, even if he was not being truthful when he responded, ―I don‘t
know‖ to most of Drs. Terrell‘s and Davis‘s questions—responses that the doctors
believed were evidence of malingering—that was not necessarily inconsistent with
his being intellectually disabled. Only a qualified expert, he insists, could
determine whether his behavior was evidence of a competent defendant unwilling
to cooperate or of an intellectually disabled, incompetent defendant unable to
cooperate. Because no such expert was appointed, he contends that neither the
statutory scheme nor the requirements of due process were satisfied, and the
judgment must be reversed.
       We are unpersuaded that Dr. Christensen‘s testimony regarding defendant‘s
alleged intellectual disability and her earlier belief that he was incompetent to
stand trial raised a doubt sufficient to require the trial court to institute renewed

                                           14
proceedings under section 1369, subdivision (a). As we shall explain,
Dr. Christensen‘s conclusion concerning defendant‘s intellectual functioning was,
by her own acknowledgment, an outlier that may have reflected the unusual
circumstances present on the day of her evaluation rather than the true extent of
defendant‘s abilities.
       Dr. Christensen was one of a series of experts called by the defense at trial
in an effort to undermine the prosecution‘s claim that defendant had the specific
intent necessary for the charged crimes. On the subject of whether defendant was
incompetent, Dr. Christensen described an evaluation that was not very different
from the evaluation that Drs. Terrell and Davis had conducted. Like the
psychiatrists, Dr. Christensen asked defendant general questions as well as
questions about the legal process. Defendant answered most questions with ―I
don‘t know‖ or ―I don‘t understand.‖ Similarly, to the psychiatrists he had said,
among other things, he did not know his full name or his age, basic facts about his
immediate family, the months of the year, what a high school was, what alcohol
was, what medication was (although he later used the latter term correctly), or the
sum of two plus two. One of the psychiatrists had noted that in contrast to these
answers, the police report indicated that when defendant was read his Miranda
rights, he responded by saying he understood those rights and that he wanted to
talk to a lawyer. In addition, he was able to read to one of the psychiatrists an
extended excerpt from the police report, and jail personnel reported to the
psychiatrist that defendant read newspapers on a daily basis. Partly on this basis,
the psychiatrists had concluded that defendant was malingering.
       Dr. Christensen came to a different conclusion: that defendant truly did not
understand the nature of legal proceedings. She affirmed this conclusion in spite
of evidence, introduced on cross-examination during her testimony, tending to
show that defendant did understand the basics of the legal process—in particular, a

                                         15
letter he wrote discussing the sentence he might receive and considering whether
or not to testify. When asked to explain why she came to a different conclusion
from the examining psychiatrists, she responded simply that she had conducted
psychological testing, whereas Drs. Terrell and Davis had not.
       The results of Dr. Christensen‘s testing, however, are subject to substantial
question in light of the remainder of her testimony. Her testing of defendant
yielded a full-scale IQ score of 47, which she testified indicated moderate to
severe intellectual disability. She further testified to significant intellectual
deficits beyond those revealed in response to her questions about defendant‘s
understanding of the legal system. For example, she testified that defendant was
unable to calculate ―two minus one.‖ Dr. Christensen also asserted that defendant
had exceptionally poor memory. But despite her own admission that defendant‘s
unusually weak memory was not typical of people who are intellectually disabled,
Dr. Christensen denied that his responses suggested malingering. Her explanation
did not, however, describe in any detail how her specialized training and expertise
enabled her to rule out the possibility that defendant was malingering. She
explained only that, in her view, ―[m]alingerers wouldn‘t conceive of, would not
normally think about using [lack of memory] as a technique for faking one out. . . .
A malingerer will think of something different.‖
       As Dr. Christensen acknowledged at trial, her finding that defendant was
moderately to severely intellectually disabled was an outlier. The two other
defense experts, also both licensed psychologists, testified that they had tested
defendant‘s full-scale IQ as 59 and 66, respectively—within the range of mild, not
moderate or severe, intellectual disability. Dr. Christensen acknowledged that the
difference between a full-scale IQ of 47 and one of 66 is ―significant.‖ She
hypothesized that the different results might have been attributable to various
factors present on the day she examined defendant, including that the evaluation

                                           16
was conducted in an infirmary setting with many distractions and poor lighting,
and that defendant was at the time in a head harness, medicated, tired, and in pain
while recovering from injury. Defense expert Dr. Schuyler (who had tested
defendant‘s full-scale IQ as 66) echoed these concerns about the effects of this set
of unusual conditions on the results of Dr. Christensen‘s evaluation.
       Finally, other than Dr. Christensen‘s assertion that she believed defendant
was incompetent on the day she examined him—a day on which, in her own
account, her results were likely to have been confounded by an unusual set of
external variables—there is little else in the record to suggest that defendant was
unable to understand the nature of the proceedings or to assist his counsel. None
of the other defense witnesses raised similar concerns or testified to intellectual
deficits of the magnitude that Dr. Christensen had identified in concluding that
defendant was incompetent.
       In sum, given the confounding factors operative at the time of Dr.
Christensen‘s evaluation—including that defendant, still recovering from a
gunshot wound, was immobilized in a head harness, in pain, and on medication,
and that the testing was taking place in a hospital environment that was apparently
poorly lit and full of distractions—the trial court could properly find she lacked
―sufficient opportunity to examine‖ defendant for her opinion to raise a reasonable
doubt as to his competency. (People v. Ramos (2004) 34 Cal.4th 494, 507–508,
quoting People v. Pennington, supra, 66 Cal.3d at p. 519.) The trial court
therefore did not err in failing to institute competency proceedings under section
1369, subdivision (a).
       People v. Hale (1988) 44 Cal.3d 531, on which defendant relies, is
inapposite. There, the trial court declared a doubt regarding the defendant‘s
competence and ordered him evaluated under section 1368. (Hale, supra, at
p. 535.) The first psychiatrist to examine him concluded he was incompetent due

                                          17
to a mental disorder. (Id. at p. 536.) After treatment with antipsychotic
medication, the defendant‘s condition improved, and several psychiatrists later
concluded he was no longer incompetent. (Id. at pp. 537–538.) Having
considered the psychiatrists‘ evaluations, the court proceeded to trial on the
criminal charges without holding a hearing or making any explicit findings
regarding the defendant‘s competence. (Id. at p. 538.) We reversed, holding the
trial court lacked jurisdiction to conduct the criminal trial once it had made an
order instituting proceedings under section 1368 and could not vacate that order
sub silentio. (Hale at pp. 541–542.) Unlike in Hale, here the trial court did not
declare a doubt regarding defendant‘s competence after hearing Dr. Christensen‘s
testimony.
       People v. Melissakis (1976) 56 Cal.App.3d 52, on which defendant also
relies, is likewise distinguishable. In that case, the Court of Appeal reversed a
conviction where, after pretrial competency proceedings had eventuated in a
finding that the defendant was competent, the trial court failed to hold a second
competency hearing after new evidence emerged at trial that the defendant was in
the grip of paranoid delusions that prevented him from cooperating with his
counsel in the presentation of a rational defense. (Id. at pp. 57–62.) In contrast,
here the trial evidence of defendant‘s intellectual disability did not suggest he
lacked the ability to understand the nature of the criminal proceedings or cooperate
with counsel in the presentation of a rational defense.
       Our conclusion that the trial court did not err in failing to reinstitute
competency proceedings based on Dr. Christensen‘s testimony obviates the need




                                          18
to address defendant‘s contention that to hold reliable retrospective competency
proceedings to remedy that purported error would not be possible.2
           2. Issues related to testimony of Lee Coleman, M.D.
       In support of his defense that he did not premeditate and deliberate the
killings, as required for first degree murder, or kill Diaz with the specific intent to
prevent her from testifying against him in a possible future criminal proceeding
arising from her spousal battery complaint, as required for the witness-killing
special-circumstance allegation and the dissuading a witness charge
(§§ 190.2, subd. (a)(10), 136.1, subds. (a)(1) & (c)(1)), defendant, as previously
noted, presented the testimony of three expert witnesses, psychologists who had
evaluated him and administered intelligence tests and other standardized tests
commonly used to diagnose intellectual disability. Over defense objection,
psychiatrist Lee Coleman, M.D., testified for the prosecution in rebuttal
concerning the unreliability of the testing and methodology the defense experts
used and the limitations of psychological and psychiatric testimony. On appeal,
defendant contends the admission of Dr. Coleman‘s testimony violated state law
and his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution. Specifically, he contends Dr. Coleman was unqualified to
testify as an expert on the subjects of intellectual disability and related intelligence
and psychological testing, was erroneously permitted to testify regarding questions


2       Along with his opening brief, defendant filed a request under Evidence
Code sections 452 and 459 that this court take judicial notice of documents
indicating that Dr. Charles Davis, whom the superior court appointed to evaluate
defendant‘s competence to stand trial, and who determined defendant was
competent and malingering, is deceased. The conclusion that the trial court did
not err in failing to reinstitute competency proceedings renders irrelevant the
material of which defendant asks us to take notice, and we therefore deny the
request. (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6.)



                                          19
of law vital to the defense, and gave erroneous opinions regarding the law. The
trial court compounded these errors, defendant contends, by misinstructing the
jury that it could refuse to consider the evidence of his intellectual disability in
determining whether he possessed the mental states required for the charged
offenses. He claims the errors were prejudicial, necessitating reversal of his
conviction and sentence. The Attorney General asserts defendant forfeited these
contentions by failing to make sufficiently specific objections below, and they lack
merit in any event.

                a. Factual background
       Resolution of defendant‘s claims requires that we set forth the defense
objections and the witness‘s testimony in some detail. As noted, the defense
presented the testimony of three psychologists who evaluated defendant at
different times: Dr. Lea Christensen, Dr. Frank Powell, and Dr. Bradley Schuyler.
The witnesses administered various tests, including the Wechsler Adult
Intelligence Scale Revised, the Bender Motor Gestalt test, a street survival skills
questionnaire, the Wide Range Achievement Test, subtests of the Woodcock-
Johnson Psychoeducational Test Battery, the Trail Making Test, the Gilmore oral
reading test, the Denman memory tests, and the Wechsler Memory Scale Revised.
Based on their testing and evaluation, the witnesses concluded defendant was
mildly or moderately intellectually disabled and not malingering. Drs. Christensen
and Powell testified generally that intellectual disability affects abstract thinking,
memory, ability to understand, and judgment, but neither expert rendered an
opinion as to whether defendant was capable of forming, or did form, the mental
states required for the charged offenses or the special circumstance allegation. Dr.
Christensen testified that while an intellectually disabled person can form the
intent to kill, he or she would have greater difficulty making decisions,



                                           20
considering the consequences of his or her actions, and drawing causal
connections, and would be more impeded in his or her judgment, than would a
person of normal intellect.
       After the prosecutor indicated he would be presenting the testimony of Dr.
Lee Coleman in rebuttal, the defense, out of the jury‘s presence, requested an offer
of proof regarding Dr. Coleman‘s proposed testimony. Defense counsel noted:
―[W]e restricted our questioning of the experts to not have them render legal
conclusions or opinions as to the state of mind of the defendant. [¶] We do not
believe that the proposed testimony of Dr. Coleman is appropriate as rebuttal.‖
Defense counsel also argued the proposed testimony was irrelevant. Based on his
study of the witness‘s published writings, counsel stated it appeared Dr. Coleman
would be testifying that psychiatrists and psychologists have no training that
would enable them to render opinions in the courtroom. Counsel argued that
―since [psychological experts] have, in fact, been qualified as experts and allowed
to present their expert testimony, that Dr. Coleman coming in and saying that has
absolutely no place within the courtroom setting and should be totally disregarded
by the jury‖ would be ―an inappropriate opinion,‖ as well as ―extremely
prejudicial and its probative value is certainly outweighed by its prejudice . . . .‖
       The prosecutor clarified that ―Dr. Coleman‘s testimony would be to explain
to the jury the tests are not relevant which were administered by the doctors, why
they‘re not relevant. And Dr. Coleman is not going to give any opinion as to the
defendant‘s mental state. Dr. Coleman never gave such an opinion and he would
also say that that is something the jury should determine.‖ Defense counsel
argued, ―[M]y understanding is the Court makes the rulings on what is relevant
and what is not relevant, and it is not for the expert to say what is relevant . . . .
[¶] The Court has already admitted the testimony of the psychologists. There was
no objection to those. The prosecutor made no effort to convince the Court that

                                           21
their testimony was without foundation and should not be admitted.‖ Defense
counsel also questioned whether, given the differences in the training undergone
by psychiatrists and psychologists, a psychiatrist like Dr. Coleman is qualified to
render opinions regarding psychological evaluations. The court ruled that Dr.
Coleman would be allowed to testify.
       In the jury‘s presence, Dr. Coleman testified as follows: He had been a
medical doctor specializing in psychiatry since 1969. Psychiatrists are medical
doctors specializing in problems of emotions and behavior. Psychologists are not
medical doctors, and cannot treat the body or prescribe medications, but their
training in psychotherapy overlaps that of psychiatrists. Since the early 1970‘s,
Dr. Coleman‘s special interest had been in psychiatry in the legal system. He had
studied the professional literature concerning how the techniques, methods, and
examinations used in clinical psychiatry and psychology work when applied in the
legal setting, and had read actual case files to compare the methods and
conclusions used by mental health professionals with ―what we know in the
professional literature of the actual ability of those techniques to do what is
alleged that they can do.‖ Based on his study and experience, Dr. Coleman held
the opinion that the tests and procedures mental health professionals use ―are not
reliable instruments to help answer the questions which they‘re supposed to be
helping with.‖ Over an unsuccessful lack-of-foundation objection by the defense,
Dr. Coleman testified an IQ test is not a reliable measure of intelligence, a mental
status examination is not a reliable guide to ―what a person‘s orientation or
understanding or current mental state is,‖ and a personality test is ―not a reliable
guide to somebody‘s personality.‖ The examiner engages in ―guesswork as to the
reason why the person answers the way they do.‖
       The prosecutor asked whether Dr. Coleman had an opinion as to whether
the results of such tests have any value to a jury. Over unsuccessful defense

                                          22
objections on grounds of improper rebuttal, ―not proper subject for expert
testimony,‖ and ―calls for a conclusion with a lack of foundation,‖ the witness
testified the tests ―are of no help whatsoever‖; ―[t]here is no kind of personality
which is incapable of having [the mental states at issue in a criminal case]‖; and
the tests were never designed for this purpose. No psychological test exists, he
testified, the results of which would require a juror to change his or her mind about
the existence of premeditation and deliberation; if a juror found defendant was
able to plan and was aware of the consequences of his actions, nothing in Dr.
Christensen‘s report would require the juror to reevaluate his or her position. Dr.
Coleman testified psychologists and psychiatrists are in no better position than lay
persons to judge credibility; indeed, in his view, ―they‘re actually worse‖ than lay
persons.
       On cross-examination, Dr. Coleman acknowledged his belief that no mental
health professional can determine from testing what a person was thinking at some
time in the past. Asked whether a fact finder ―should decide a case solely on the
facts surrounding the circumstances of the offense,‖ Dr. Coleman stated: ―[I]f
they‘re going to decide what the truth is about what happened, of course, they
would rely on all the evidence. But when it comes to these mental questions, that,
in my opinion, a person‘s behavior as a juror determines it to be from the evidence
and of the circumstances surrounding the behavior as they determine it to be is as
reliable a guide as exists to determine what somebody‘s mental state was.‖ Dr.
Coleman emphasized he was not saying that a person‘s mental state during the
commission of an offense was irrelevant; rather, he said, ―My point is simply that
the tools of psychiatry and psychology are in my opinion of no help in a jury or
judge deciding those mental issues.‖




                                         23
                b. Asserted error in finding Dr. Coleman qualified to testify as an
                    expert on intellectual disability and related intelligence and
                    psychological testing
       Evidence Code section 720 provides that a ―person is qualified to testify as
an expert if he has special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his testimony relates.
Against the objection of a party, such special knowledge, skill, experience,
training, or education must be shown before the witness may testify as an expert.‖
―A trial court‘s decision that a proposed witness qualifies as an expert under
Evidence Code section 720 is a matter within the court‘s broad discretion and will
not be disturbed on appeal unless the defendant demonstrates a manifest abuse of
that discretion.‖ (People v. Jones (2013) 57 Cal.4th 899, 949.) Defendant
contends that because Dr. Coleman testified to no special training, education,
experience, or knowledge in the field of intellectual disability, the trial court
abused its discretion in permitting him to testify as an expert in that field. As the
Attorney General argues, however, this contention was forfeited by the failure to
make a contemporaneous objection on the same ground at trial. (People v. Ramos
(1997) 15 Cal.4th 1133, 1171.) The thrust of defendant‘s in limine objections to
Dr. Coleman‘s proposed testimony was that (1) the defense experts had not
testified regarding defendant‘s having had any particular mental state at the time
of the crimes; hence, any testimony by Dr. Coleman that mental health
professionals cannot reliably determine what a person‘s mental state was at some
point in the past would constitute improper rebuttal; (2) since the trial court
determines relevance, any testimony by Dr. Coleman that mental health testimony
has no place in the courtroom would be inappropriate; and (3) as a psychiatrist, Dr.
Coleman was not qualified to render opinions on psychological evaluations.
Neither explicitly nor implicitly did the defense seek exclusion of such testimony
on the basis that Dr. Coleman lacked expertise in the field of intellectual disability.


                                          24
Nor did the defense object during Dr. Coleman‘s testimony before the jury on the
ground of his purported lack of expertise in that field.
       In any event, as the Attorney General argues, Dr. Coleman did not testify as
an expert in intellectual disability, and rendered no opinion regarding whether
defendant is intellectually disabled. Rather, Dr. Coleman testified, based on the
professional literature and his own study, about psychological evaluation
generally—including intelligence, neuropsychological, and personality testing—
and its limitations in terms of the inferences it can support in the forensic setting
concerning a defendant‘s mental state at the time of an offense.3 Defendant fails
to show the trial court abused its discretion in permitting this testimony in rebuttal
to that of the defense experts. His derivative constitutional claims fail for the
same reason.


3       Defendant also complains that Dr. Coleman‘s testimony should have been
excluded because his background was not ―comparable‖ to that of the defense
expert witnesses. He cites People v. Stoll (1989) 49 Cal.3d 1136, a case involving
a prosecution for lewd and lascivious acts on a child in which the defense sought
to introduce a psychologist‘s expert testimony, based on an interview of the
defendant and interpretation of standardized written personality tests administered
to him, that the defendant showed no signs of ―deviance‖ or ―abnormality.‖ (Id. at
p. 1140.) We rejected the prosecution‘s argument that the Kelly/Frye rule (see
People v. Kelly (1976) 17 Cal.3d 24, 30; Frye v. United States (D.C.Cir. 1923) 293
F. 1013, 1014), restricting the admissibility of novel or experimental scientific
techniques, applied to psychological testing, instead ―adher[ing] to settled law
viewing this testimony as competent but disputable ‗expert opinion.‘ ‖ (Stoll, at
pp. 1140–1141.) We observed that ―issues of test reliability and validity may be
thoroughly explored on cross-examination at trial. [Citation.] The prosecution
also may call, in rebuttal, another expert of comparable background to challenge
defense expert methods.‖ (Id. at p. 1159, italics added.) Defendant fails to
persuade us that Dr. Coleman‘s background was insufficiently comparable for this
purpose. (Cf. People v. Smithey (1999) 20 Cal.4th 936, 967 [rejecting challenge to
admission of similar testimony by Dr. Coleman in rebuttal to defense expert
testimony].)



                                          25
       Defendant also contends that, in testifying that intelligence testing is not
generally accepted within the professional community as a fundamentally reliable
measure of intelligence, Dr. Coleman revealed a lack of impartiality that should
have disqualified him from testifying as an expert. Although defendant
acknowledges that ―intelligence testing does not always produce precise results for
a variety of reasons,‖ he urges that IQ ― ‗remains . . . the measure of human
intelligence that continues to garner the most support within the scientific
community‘ ‖ (quoting American Assn. on Mental Retardation, Mental
Retardation: Definition, Classification, and Systems of Supports (10th ed. 2002)
p. 51). Under the clinical definition of intellectual disability, he observes,
― ‗general intellectual functioning is defined by the intelligence quotient (IQ or IQ
equivalent) obtained by assessment with one or more of the standardized,
individually administered intelligence tests, such as the Wechsler Intelligence
Scales given in this case‘ ‖ (quoting American Psychiatric Assn., Diagnostic and
Statistical Manual (4th ed. 2000) p. 41, italics omitted; see also id. at p. xxxiii).
He contends Dr. Coleman testified, to the contrary, that intelligence testing is not
generally accepted within the relevant professional community and is not relevant
to determining whether a person is intellectually disabled. This testimony,
defendant argues, signified either (1) a lack of the knowledge, training, and
experience in the field of intellectual disability necessary to serve as an expert in
this case, or, (2) because ―his bread and butter was debunking psychological and
psychiatric testimony and related testing,‖ Dr. Coleman was ― ‗so personally
invested in establishing the technique‘s [non]acceptance that he [could] not be
objective about []agreements within the relevant [professional] community.‘ ‖
(See People v. Reilly (1987) 196 Cal.App.3d 1127, 1138–1139 [addressing Kelly
requirement of expert impartiality].) In either case, defendant argues, the trial
court erred in permitting him to testify over defense objections.

                                           26
       Preliminarily, defendant forfeited this challenge to Dr. Coleman‘s
impartiality by failing to raise it in the trial court. On the merits, the argument is
unpersuasive. Defendant predicates his claim on a statement by Dr. Coleman
taken out of context. In testifying, ―that‘s why these [IQ] tests have been totally
trashed by the professional community‖ and ―not given any credibility by the
professionals,‖ Dr. Coleman was addressing the observed tendency, noted even by
defendant‘s experts, of persons with lesser educational levels and language skills,
who mainly come from minority groups or from an impoverished background, to
score lower on IQ tests, apparently for reasons unrelated to actual intelligence,
than persons from the dominant community. We perceive no lack of impartiality
in the statement. (See Larry P. v. Riles (9th Cir. 1986) 793 F.2d 969, 975–976,
984 [upholding lower court finding of racial bias in standard IQ tests and
injunction against the use of such tests in California schools].)

                c. Asserted error in permitting Dr. Coleman to testify concerning
                    purely legal questions
       Defendant further contends the trial court erred in permitting Dr. Coleman
to testify regarding purely legal questions and to encourage jurors to disregard the
law. Having allowed the three defense expert witnesses to testify that defendant
was intellectually disabled, he reasons, the trial court effectively resolved the legal
questions that (1) intellectual disability is a proper subject of expert opinion (see
Evid. Code, § 801, subd. (a) [expert testimony is permissible on a ―subject that is
sufficiently beyond common experience that the opinion of an expert would assist
the trier of fact‖]); and (2) the defense experts‘ intellectual disability diagnoses
were ―[b]ased on matter . . . that is of a type that reasonably may be relied upon by
an expert in forming an opinion upon the subject to which his testimony relates‖
(id., § 801, subd. (b)), including the administration and interpretation of
intelligence tests and other psychological testing. Once the trial court resolved


                                          27
those questions, defendant contends, the jurors‘ sole function was to determine the
weight and credibility of that evidence. But in derogation of those rulings, he
claims, Dr. Coleman testified that laypersons can identify intellectual disability
without expert assistance, and that expert opinion, including that based on the
results of such inherently unreliable tools as intelligence testing, does not assist the
jury in determining intellectual disability or mens rea.
       As defendant acknowledges, in earlier cases we determined that ―Dr.
Coleman‘s testimony regarding the unreliability of psychiatric testimony was
neither improper nor prejudicial, because he did not suggest that courts should bar
psychiatrists from the courtroom. Thus, his criticism of forensic psychiatry and of
the opinions of the defense experts went to the weight of those opinions rather
than their admissibility.‖ (People v. Smithey, supra, 20 Cal.4th at p. 966.) We
reach the same conclusion here. And, as we also previously concluded,
―Moreover, because the trial court instructed the jury that an expert was entitled to
state an opinion on a matter at issue in the trial, and that the jury was entitled to
disregard an expert opinion if it was unreasonable, we have found such testimony
by Dr. Coleman to be ‗ ―clearly nonprejudicial.‖ ‘ ‖ (Ibid.) Defendant argues, to
the contrary, that although in previous cases we have ―drawn a line in the sand that
Dr. Coleman may have narrowly avoided,‖ ―he finally crossed it in this case.‖ But
we see no significant difference between the testimony we approved in Smithey
and other cases and the testimony Dr. Coleman gave in this case. Defendant‘s
claim therefore lacks merit.4


4      We address below defendant‘s related claim of error in the instruction
limiting the jury‘s consideration of the evidence of his intellectual disability in
determining whether he had the mental states required for the charged offenses.
(See post, pp. 41–53.)



                                           28
          3. Admission of testimony by lay witnesses, and asserted hearsay
            evidence, regarding defendant’s alleged intellectual disability in his
            developmental years
       Defendant contends the trial court erred in permitting three lay witnesses—
teachers and a counselor who taught or worked with defendant in his high school
special education program—to testify in the prosecutor‘s case in rebuttal that they
did not categorize defendant as intellectually disabled. The court erred, according
to defendant, because the question whether a person is intellectually disabled is
one for experts and the witnesses were unqualified to give an opinion on the
subject. Defendant further contends the trial court erred in overruling his hearsay
and foundational objections and allowing a school psychologist and custodian of
records to express the opinion, based on school records, that defendant was not
intellectually disabled. The asserted errors, he contends, violated not only state
law but, because the evidence of intellectual disability that he presented was the
―core of his defense‖ by which he sought to raise a reasonable doubt on the
elements of premeditation and deliberation and the witness-killing special-
circumstance allegation, also his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution not to be convicted except on
proof beyond a reasonable doubt, to a meaningful opportunity to present a defense,
to due process, and to a reliable jury verdict. We conclude the trial court did not
abuse its discretion in allowing the teachers and counselor who had worked with
defendant to testify they did not categorize him as intellectually disabled, and any
error in allowing the records custodian to testify to the conclusions contained in
the records was nonprejudicial.
       A recitation of the factual background to this claim will help to place it in
its legal context. Defendant‘s first expert witness, Dr. Powell, testified that, with a
full-scale IQ score of 59, defendant was mildly intellectually disabled. He agreed
with the prosecutor that such disability ―[would] be noticeable [to] friends and


                                          29
family.‖ A subsequent expert, Dr. Christensen, likewise testified on cross-
examination that ―we would expect that family and friends would know
[defendant] to be slow, harder to educate, not always quick to acquire new
information and not always high functioning in general compared to age peers.‖
       The prosecution then called three lay witnesses—defendant‘s former school
counselor Dolores Rodriguez and former teachers Elizabeth Davis and Susan
McClure—and asked them if they ever considered defendant to be intellectually
disabled while attending school. Over unsuccessful defense objections that there
was no foundation to show that the witnesses were qualified to render an opinion
regarding defendant‘s intellectual disability, all three testified they would not
categorize him as intellectually disabled.
       Specifically, Rodriguez testified she was a counselor at Madera High
School for 17 years, with responsibilities in academic scheduling, testing, and
personal, vocational, and career development, and counseled defendant in 1983,
1984, or 1985. She had personal contact with defendant during that time
regarding academic matters and program changes. Defendant, she testified, was in
the special education program at Madera High School as a ―learning handicapped‖
individual. Based on her personal contacts with defendant, she testified, over a
defense objection on the ground of ―lack of foundation as to this witness‘s
expertise to render such an opinion,‖ she did not ―consider [defendant] to be in the
category of a mentally retarded person.‖
       Davis testified she was a resource specialist in the special education
department at Madera High School who worked with students who have learning
problems. In that capacity she taught defendant 11th grade U.S. history. She
observed him to have problems reading and turning in his homework, but did not
recall any problems with his reasoning abilities. Davis had worked with
intellectually disabled individuals, not in a school setting but as a camp counselor,

                                           30
and—over an unsuccessful defense objection on the ground of foundation—
testified she would not categorize defendant as intellectually disabled. On redirect
examination, she observed: ―He was not a student who put forth a great deal of
effort. For instance, in getting homework done and studying a lot I don‘t think he
did a whole lot outside of class.‖
       McClure testified she was a resource specialist in the special education
department at Madera High School; defendant was one of her students. She
recalled he had difficulties with reading and writing, but, asked whether there was
anything ―that ever indicated to you that [defendant] may be mentally retarded,‖
she responded in the negative.
       The prosecution also presented the testimony of Leon Potter, a school
psychologist and custodian of records for the Madera Unified School District.
Over an unsuccessful continuing defense objection on grounds of hearsay and lack
of foundation, Potter testified defendant‘s school record showed he was placed in
special education ―[b]ecause of a learning handicap.‖ IQ tests administered to
defendant in 1975, 1979, and 1982 yielded scores of 70, 75, and 77, respectively.
Asked whether, based on these IQ scores, defendant was ever classified as
intellectually disabled by the school district, Potter testified that defendant was
placed in a class for intellectually disabled students ―only on what we call
exceptional circumstances, meaning he did not qualify by standard as a mentally
retarded child but he‘s functioning in a low borderline range academically,
functioning very lowly [sic], was having difficulty in the classroom. When you
have circumstances, even though a student does not test mentally retarded, if
they‘re in the borderline range under exceptional circumstances with parental
consent you can place them in EH [educationally handicapped] classes as was
done in this case here.‖



                                          31
       Defendant contends the trial court erred in permitting Rodriguez, Davis and
McClure to testify they did not categorize him as intellectually disabled because
the determination whether an individual is intellectually disabled is a matter
beyond the common experience of lay persons and requires expertise. Lay
witnesses, he reasons, can testify regarding their perceptions of an individual‘s
behavior, including such matters as test scores, school performance, and a seeming
inability to follow instructions, in order to bolster or undermine a claim of
intellectual disability, but may not offer their opinions that an individual is or is
not intellectually disabled. Here, defendant contends, the lay witnesses properly
testified to their observations that defendant had problems with reading and
completing assignments but did not seem to have problems with reasoning, but
were improperly allowed to testify that in their opinion he was not intellectually
disabled.
       Defendant‘s contention lacks merit. ―[A]ll relevant evidence of mental
condition affecting the formation of a specific intent, is admissible on the trial of
the ‗not guilty‘ plea‖ (People v. Webb (1956) 143 Cal.App.2d 402, 412), including
the opinion of lay witnesses, provided the opinion is rationally based on the
witness‘s perception and helpful to a clear understanding of his or her testimony
(Evid. Code, § 800). We have recognized ― ‗there is no logical reason why
qualified lay witnesses cannot give an opinion as to mental condition less than
sanity‘ [citation] or to similar cognitive difficulties.‖ (People v. DeSantis (1992)
2 Cal.4th 1198, 1228.) In the specific context of proceedings to determine
whether a capital defendant is ineligible for the death penalty due to intellectual
disability under Atkins v. Virginia, supra, 536 U.S. 304, we have implicitly
recognized the potential relevance of lay witness testimony. (In re Hawthorne
(2005) 35 Cal.4th 40, 50 [the court conducting a postconviction Atkins hearing
― ‗shall not be bound by the opinion testimony of expert witnesses or by test

                                           32
results, but may weigh and consider all evidence bearing on the issue of mental
retardation‘ ‖].) Here, two of the defense expert witnesses, Drs. Christensen and
Powell, had acknowledged on cross-examination that defendant‘s intellectual
disability would be noticeable to those close to him. The prosecution was entitled
to rebut their testimony with that of school personnel who had worked with
defendant and not perceived him to be intellectually disabled. None of the
prosecution witnesses purported to render a diagnosis as such; rather, they testified
to their view, based on their experience in special education and their observations
of defendant‘s behavior, that nothing indicated that his learning difficulties
stemmed from intellectual disability. The trial court did not abuse its discretion in
allowing this rebuttal testimony.
       Nor, contrary to defendant‘s argument, did the prosecutor mischaracterize
the lay witnesses‘ testimony in his closing argument, or equate it to expert
opinion. After critically summarizing certain inconsistencies in the defense
experts‘ testimony, the prosecutor commented: ―On the contrary, the People‘s
rebuttal witnesses showed the opposite of what the defense psychologists stated.
You heard testimony from two teachers and the defendant‘s counselor who knew
him when he was in high school. Two of those individuals had worked with
mentally retarded people in the past. And all three of those individuals, although
they stated the defendant had learning problems, he had problems with reading
and mathematics. It took him a little longer. They did not in any way consider the
defendant mentally retarded. [¶] One of the defendant‘s own expert witnesses
said that that would be noticeable.‖ To the extent defendant is now asserting
impropriety in the prosecutor‘s argument, he forfeited the claim by failing to
object below (People v. Harris (2013) 57 Cal.4th 804, 852), and because the
argument accurately reflected the testimony, it would lack merit in any event.



                                         33
       Defendant further contends that, although the school records showing he
was enrolled in special education classes for the ―educationally mentally retarded‖
fell within the business or official records exceptions to the rule against hearsay
(see Evid. Code, §§ 1271, 1280), as the trial court apparently concluded, the
conclusions of nontestifying psychologists contained in those records that he was
learning disabled and not intellectually disabled constituted hearsay not admissible
for their truth. In support, defendant cites People v. Reyes (1974) 12 Cal.3d 486,
where we held that ― ‗ ―[i]n order for a record to be competent evidence under
[Evidence Code section 1271] it must be a record of an act, condition or
event . . . . Whether the conclusion is based upon observation of an act, condition
or event or upon sound reason or whether the person forming it is qualified to
form it and testify to it can only be established by the examination of that party
under oath.‖ ‘ ‖ (Reyes, supra, at p. 503.) Although defendant does not dispute
that IQ test scores constitute records of acts or events, and thus that the scores
themselves were not inadmissible hearsay, he urges that here, as in Reyes, the
determination he was not intellectually disabled depended on more than his IQ test
scores. Rather, he contends, it necessitated an evaluation of his adaptive skills and
functioning by one with specialized expertise, placing the determination outside
the business and official records exception to the rule against hearsay.
       Contrary to the Attorney General‘s argument, we find defendant adequately
preserved the contention by his continuing hearsay objection below. Turning to
the merits, we note that whether defendant has established the premise of his
argument, namely that the school district‘s categorization of him as not
intellectually disabled was predicated on something other than his IQ scores, is
questionable. As defendant correctly observes, the established diagnostic criteria
for intellectual disability used by mental health professionals require that an
individual have—in addition to significantly subaverage intellectual functioning,

                                          34
as typically demonstrated by a score of 70 or lower on a standard IQ test—
significant limitations in adaptive functioning, and that the intellectual and
adaptive deficits arose during the developmental period. Potter‘s testimony,
however, suggested that the school district may have relied exclusively on
defendant‘s IQ scores in determining that he was not intellectually disabled for
purposes of special education placement. In response to the prosecutor‘s question
whether, ―[b]ased upon [defendant‘s] IQ scores was he ever considered . . .
mentally retarded by the Madera Unified School District,‖ Potter answered: ―[L]et
me explain that he was placed in a class for mentally retarded students. He was
placed there only on what we call exceptional circumstances, meaning he did not
qualify by standard as a mentally retarded child but he‘s functioning in a low
borderline range academically . . . . When you have circumstances, even though a
child does not test mentally retarded, if they‘re in the borderline range under
exceptional circumstances with parental consent you can place them in EH classes
as was done in this case here.‖ Nothing in the record hints at other factors that
may have gone into the school district‘s determination, which defendant did not
probe on cross-examination, and concerning which he presented no evidence of
his own. If defendant‘s IQ scores were indeed the sole factor that influenced the
school district‘s conclusion that he fell outside the category of intellectually
disabled ―by standard,‖ then arguably evidence of that conclusion was merely
cumulative to the evidence of his IQ scores, which defendant appears to concede
was properly admitted.
       In any event, the school district‘s conclusion, as contained in the records
and as described by witness Potter, that defendant was not intellectually disabled
was also cumulative to the testimony of witnesses Rodriguez, Davis, and McClure
that they did not see anything in the course of their work with defendant to
indicate that he was intellectually disabled. We have already determined that

                                          35
testimony was properly admitted to rebut the defense experts‘ contrary opinion, in
view of the experts‘ acknowledgment that intellectual disability would be apparent
to persons working with defendant. Accordingly, any possible error in allowing
witness Potter to testify, based on the school record, that defendant was placed in
classes for educable intellectually disabled students only because of his low
academic functioning and not because he was intellectually disabled, was
nonprejudicial under any standard.

          4. Asserted error in overruling defense objections to questions the
            prosecutor posed to Dr. Christensen
       Defense expert psychologist Dr. Christensen testified on direct examination
regarding the mental status examination and intelligence testing she conducted on
defendant during October 1989, a month after the crimes. Among other things,
Dr. Christensen testified she obtained a full-scale IQ score of 47 for defendant and
concluded he was not malingering. She acknowledged having reviewed the
reports of two psychiatrists, Drs. Davis and Terrell, who evaluated defendant for
purposes of a competency determination and concluded he was malingering.
       On cross-examination, Dr. Christensen acknowledged that, in her report
based on her October 1989 evaluation, she, in contrast to Drs. Davis and Terrell,
had concluded defendant was incompetent to stand trial, and that she still believed
he was incompetent at that time. The prosecutor then asked: ―And you believe
that even though the Superior Court, upon the reports of the psychiatrists found
him to be competent?‖ The trial court overruled a defense relevancy objection,
and Dr. Christensen answered in the affirmative.5 Dr. Christensen also

5      Dr. Christensen answered: ―I read the reports and I note one of the
psychiatrists found him to be incompetent and the other one did not. I do not
always understand legal aspects. I‘m going on the basis of his level of intellectual
functioning and the date I saw him how much I perceived he would be able to
                                                         (Footnote continued on next page.)


                                         36
acknowledged her report had recommended that defendant be referred to the
Central Valley Regional Center ―for placement.‖ The prosecutor followed up by
asking: ―And basically, if I understand correctly, you felt that the defendant
should be placed back in society and monitored very closely?‖ Defense counsel
interposed a relevancy objection, which the court overruled. Dr. Christensen
answered: ―It would be a fairly huge assumption for someone to interpret that
statement and say I‘m meaning place him back into society. What I was talking
about there was the referral process for handling persons of lower intelligence and
how they‘re handled differently than persons of normal intelligence, and I was
trying to let [defense counsel] at this point know avenues . . . where she could get
free services that are already available to Mr. Townsel, and which could assist her
in preparing her case.‖ The prosecutor continued his cross-examination by asking:
―I believe you also recommended a limited conservatorship for the defendant; isn‘t
that correct?‖ Dr. Christensen answered in the affirmative. The prosecutor asked:
―And that was to focus on controlling social contacts and residence and providing
mandatory adult level supervision; is that correct?‖ Dr. Christensen agreed. The
prosecutor then asked: ―Doesn‘t that mean that you recommended that he be
placed back out into society?‖ Defense counsel again objected on relevancy
grounds; the trial court overruled the objection. The witness answered: ―[I]f I
were to recommend that he would be placed out in society I would have



(Footnote continued from previous page.)

assist his defense attorney in preparing for his defense, his awareness or lack of
awareness of what a judge was, who you were. Who—what a jury was for, what
the bailiff was for. At this time that I saw him he did not have any understanding
of who any of these people were. He couldn‘t differentiate even that his attorney
was working for him and that you were essentially not working for him.‖



                                           37
recommended that directly. I wouldn‘t have done it so obtusely.‖ She explained:
―It means I think he‘s eligible for this program. And I think referral to the
program would mean that the people in the program would be able to assist in
deciding the proper way of treating him. It is a program that when you have
somebody who‘s developmentally disabled, that, you find living situations, or
work situations, or other types of situations where you can protect them, and
enable them to live at their highest level without getting in trouble, without getting
hurt. I wasn‘t saying anything about returning him to society by these
statements.‖
       Defendant now renews his contention that the prosecutor‘s line of cross-
examination was irrelevant to any issue in the case, including the reliability of Dr.
Christensen‘s opinion defendant was intellectually disabled, or to her overall
credibility, contending the trial court erred in overruling the defense objections.
Defendant acknowledges that a ―wide latitude is permitted in the cross-
examination of an expert witness in all matters tending to test his credibility so
that the jury may determine the weight to be given the testimony . . . .‖ (People v.
Tallman (1945) 27 Cal.2d 209, 214; see Evid. Code, § 721, subd. (a).)
Nevertheless, he contends, although the ―trial court has broad discretion in
determining the relevance of evidence,‖ it ―lacks discretion to admit irrelevant
evidence.‖ (People v. Benavides (2005) 35 Cal.4th 69, 90.) Defendant argues that
the trial court‘s competency finding, based on the reports of Drs. Davis and
Terrell, was irrelevant to Dr. Christensen‘s opinion that defendant was
incompetent because she concluded he was incompetent due to the developmental
disability known as intellectual disability, while Drs. Davis and Terrell evaluated
him for incompetency due to a mental disorder, and not for a developmental
disability such as intellectual disability. Likewise, he argues Dr. Christensen‘s
recommendation for a referral to the Central Valley Regional Center merely

                                          38
followed the statutory provisions applicable when a criminal defendant is found to
be incompetent to stand trial due to a developmental disability such as intellectual
disability (Pen. Code, §§ 1369, subd. (a), 1370.1), and thus had no ―tendency in
reason‖ to undermine her credibility (Evid. Code, § 210).
       Defendant takes too narrow a view of relevancy in this context. ―The scope
of cross-examination permitted under [Evidence Code] section 721 is broad, and
includes examination aimed at determining whether the expert sufficiently took
into account matters arguably inconsistent with the expert‘s conclusion.‖ (People
v. Ledesma (2006) 39 Cal.4th 641, 695.) Here, the prosecutor properly cross-
examined Dr. Christensen concerning the discrepancy between her opinion, as
expressed in her October 1989 evaluation, that defendant was moderately
intellectually disabled with an IQ of 47, was not malingering, and was
incompetent to stand trial, and the contrary opinions of the two psychiatrists
whose reports, admitted at the competency hearing, the trial court found credible
in determining defendant to be competent. As the Attorney General observes, the
question went to Dr. Christensen‘s reluctance to acknowledge defendant might
have been malingering during her evaluation and hence her possible bias, a proper
subject of cross-examination and a topic to which the prosecutor returned in his
closing argument. ―It is common practice to challenge an expert by inquiring in
good faith about relevant information, including hearsay, which he may have
overlooked or ignored.‖ (People v. Montiel (1993) 5 Cal.4th 877, 924.) The trial
court did not abuse its discretion in overruling the defense objection.
       As for the prosecutor‘s question whether Dr. Christensen had recommended
defendant be referred to the Central Valley Regional Center, the Attorney General
correctly notes that the defense interposed no objection at trial; defendant‘s
appellate challenge to the propriety of the question is therefore forfeited. In any



                                         39
event, we see no possible prejudice from either that inquiry or the prosecutor‘s
follow-up question regarding what such referral would have meant.
       Defendant also contends the trial court erred in overruling defense
counsel‘s objections to cross-examination of Dr. Christensen by which the
prosecutor assertedly suggested facts of which Christensen had no knowledge and
which the prosecutor did not otherwise offer to prove. Specifically, after eliciting
from Dr. Christensen she had testified in a previous case that ―jail inmates have
been passing around information about tests ever since the 1860s,‖ and had
―interviewed at least four people who were charged with murder‖ in Madera
County, the prosecutor asked: ―[T]hey were all in jail around the same time; isn‘t
that correct?‖ Defense counsel objected that ―around the same time‖ was vague;
the trial court overruled the objection, noting: ―She‘s an expert. She can answer if
she knows.‖ Dr. Christensen answered: ―I think there‘s some overlap, but I‘m
really not sure.‖ The prosecutor asked: ―So is it possible that the defendant could
receive information on how to fake tests in the jail; isn‘t that correct?‖ Defense
counsel unsuccessfully objected on the ground that the question called for
speculation, and then elaborated: ―She is not an expert as to what is transpiring in
the jail and would have no way of knowing and assumes foundational facts which
she has no knowledge of.‖ The trial court overruled the objection, telling the
witness, ―You may answer if you can.‖ Dr. Christensen responded: ―I don‘t
know. I don‘t know—see, I don‘t know where he is. I don‘t know enough to
know—I know that it has happened in history. I don‘t know how—I don‘t know
where he is to know if he‘s had any contact with any of them.‖ On redirect
examination, Dr. Christensen testified she did not leave any testing materials
behind with any inmates, and that if any information was exchanged, it would only
have been what the inmates remembered.



                                         40
       Defendant contends the trial court erred in overruling defense counsel‘s
objections to the prosecutor‘s questions insinuating defendant had the opportunity
to confer with the other defendants Dr. Christensen had evaluated in order to learn
how to ―fake‖ psychological tests, when the prosecutor had no basis for a good
faith belief Christensen would have any knowledge of the housing practices in the
county jail, of whether defendant and the other inmates she had evaluated were
ever incarcerated in the same location at the same time, or of whether defendant
had any contact with those inmates. Defense counsel, however, did not object on
the ground the prosecutor lacked a factual basis for the questions, and defendant
has forfeited this contention. (People v. Friend (2009) 47 Cal.4th 1, 81.) In any
event, we see no abuse of discretion in the trial court‘s allowing the question and
directing the witness to answer ―if she can.‖ Inasmuch as Dr. Christensen
acknowledged both that she had evaluated several other clients who were charged
with murder and who were in custody around the same time and in the same
facility as defendant, and that exchanging information concerning tests was
historically common, the prosecutor had a reasonable basis for asking whether it
was possible defendant had received information on how to ―fake‖ psychological
tests while in jail.
           5. Asserted instructional error

                 a. Introduction
       As discussed above, in an effort to show defendant lacked the mental state
required for a conviction of the charged offenses, the defense presented the
testimony of three psychologists to the effect he is intellectually disabled.
Defendant contends the trial court violated state law and deprived him of various
federal constitutional protections by erroneously instructing the jury with a
modified version of CALJIC No. 3.32 that directed it to consider the intellectual



                                          41
disability evidence on the sole issue of whether he formed the intent to kill, or
express malice, as required for the charged murders, and thereby precluded it from
considering whether intellectual disability precluded him from premeditating and
deliberating the killings and from forming the mental state required for a
conviction on the charge of dissuading a witness and a true finding on the witness-
killing special-circumstance allegation. The Attorney General contends that
defendant invited the error, or forfeited it for purposes of this appeal, by agreeing
to the version of CALJIC No. 3.32 that was read to the jury and not requesting
appropriate modification; that he was not in any event entitled to the instruction on
this record; and that if any error occurred, it was harmless. We conclude the
limiting version of CALJIC No. 3.32 given to the jury in this case was
prejudicially erroneous, requiring reversal of the dissuading count and the witness-
killing special-circumstance allegation.

                b. Trial court’s instructional duty
       ―In criminal cases, even in the absence of a request, a trial court must
instruct on general principles of law relevant to the issues raised by the evidence
and necessary for the jury‘s understanding of the case.‖ (People v. Martinez
(2010) 47 Cal.4th 911, 953.) That duty extends to instructions on the defendant‘s
theory of the case, ―including instructions ‗as to defenses ― ‗that the defendant is
relying on . . . , or if there is substantial evidence supportive of such a defense and
the defense is not inconsistent with the defendant‘s theory of the case.‘ ‖ ‘ ‖
(People v. Abilez (2007) 41 Cal.4th 472, 517, italics omitted; see People v.
Anderson (2011) 51 Cal.4th 989, 996.) Evidence of a mental disease or defect,
such as intellectual disability, is relevant and admissible to raise a reasonable
doubt that the defendant premeditated and deliberated or formed any other specific
intent necessary to establish his guilt of the charged offenses (§ 28, subd. (a)), but



                                           42
―sua sponte instructions on the actual effect of the defendant‘s mental disease or
disorder on his relevant mental state became unnecessary with the abolition of the
mental disease/diminished capacity doctrine‖ (People v. Ervin (2000) 22
Cal.4th 48, 91; see People v. Saille (1991) 54 Cal.3d 1103, 1120 [following
abolition of diminished capacity doctrine, instruction relating evidence of
intoxication to specific mental state required for an offense is in the nature of a
pinpoint instruction that need not be given sua sponte]; see also People v. Rogers
(2006) 39 Cal.4th 826, 878–879.)

                 c. Analysis
       Acknowledging that instructions relating mental state evidence to charged
offenses are no longer required to be given sua sponte, defendant relies on the
principle that once a trial court undertakes to instruct on a legal point, it must do
so correctly. (See People v. Castillo (1997) 16 Cal.4th 1009, 1015). An
instruction not erroneous, deficient, or misleading on its face, he observes, may
become so in particular circumstances. (People v. Brown (1988) 45 Cal.3d 1247,
1256.) Defendant contends the modified version of CALJIC No. 3.32 (5th ed.
1988) given in this case erroneously precluded the jury from considering the
evidence of his intellectual disability on the dissuading charge and the witness-
killing special-circumstance allegation, and on the question whether he
premeditated and deliberated the killings as required for a conviction of first
degree murder.
       Here, the trial court instructed the jury as follows: ―Evidence has been
received regarding a mental defect or mental disorder of the defendant, Anthony
Townsel at the time of the crime charged in Counts 1 and 2. You may consider
such evidence solely for the purpose of determining whether or not the defendant




                                          43
Anthony Townsel actually formed the mental state which is an element of the
crime charged in Counts 1 and 2, to wit, murder.‖
       The clerk‘s transcript reflects the instruction was given at the request of
both parties; the trial court commented, and the parties acknowledged, that the
instructions given were acceptable to both sides. Although the court observed that
many of the instructions had been modified, the record before us does not include
a transcript of any instruction conference at which the specific modifications to
CALJIC No. 3.32 were discussed, and the clerk‘s transcript informs us neither
whether the instruction was given as requested nor whether it was modified. We
therefore lack the benefit of any explanation—by trial counsel, the prosecutor, or
the court—regarding the drafting of the version of CALJIC No. 3.32 given here.
       The Attorney General contends defendant invited any error by agreeing that
the instruction should be given as read, and thus forfeited his appellate claim. But
the invited error doctrine does not apply here, in the absence of any clear tactical
purpose on defense counsel‘s part in agreeing to a version of CALJIC No. 3.32
that omitted reference to the dissuading charge and the witness-killing special-
circumstance allegation. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1,
49.) We agree, however, that if defendant wished the court to affirmatively
instruct the jury to consider his intellectual disability evidence in connection with
the dissuading charge and the witness-killing special-circumstance allegation, it
was incumbent upon him to ask, and a claim of error in the failure to so instruct is
forfeited for appellate purposes.
       Defendant‘s argument, however, is not merely that the instruction, as read
to the jury, failed to include the dissuading charge and the witness-killing special-
circumstance allegation. He also contends that in directing the jury to consider his
intellectual disability evidence solely on the question whether he formed the
mental state required for the murder charges, the instruction affirmatively and

                                          44
erroneously precluded the jury from considering the evidence in connection with
the dissuading charge and special-circumstance allegation, and on the question
whether he premeditated and deliberated the killings as required for a first-degree
murder conviction. We may review defendant‘s claim of instructional error, even
absent objection, to the extent his substantial rights were affected. (§ 1259;
People v. Rundle (2008) 43 Cal.4th 76, 151.)
       Because defense expert psychologist Dr. Christensen testified intellectual
disability would not prevent someone from forming express malice, defendant
reasons the evidence that he did not premeditate and deliberate due to his
intellectual disability was not only his primary defense, but his only viable one.
Defendant contends it is reasonably likely the jurors understood CALJIC No. 3.32,
as given in this case, by which they were told to consider evidence of his mental
defect or mental disorder ―solely for the purpose of determining whether or not the
defendant Anthony Townsel actually formed the mental state which is an element
of the crime charged in Counts 1 and 2, to wit, murder,‖ limited their
consideration of the intellectual disability evidence to the sole element of malice
aforethought, and thus precluded them from considering it on the question whether
he premeditated and deliberated the murders. As such, he contends the instruction
violated state law and his Fifth, Sixth, Eighth, and Fourteenth Amendment rights
to a fair trial, proof beyond a reasonable doubt and trial by jury on every element
of the charged offenses, a meaningful opportunity to present a defense, and a
reliable jury verdict. We review the claim under the authority of section 1259
despite the lack of an objection below.
       Defendant observes that the jurors were not told on what specific ―mental
state which is an element‖ of the murders charged in Counts 1 and 2 they were
permitted to consider the intellectual disability evidence. Lacking any such
specific directive, he contends they would look for guidance to the charging

                                          45
document, which was read to the jury and which accused him of violating section
187, subdivision (a), ―in that [defendant] did willfully, unlawfully, and with
malice aforethought murder Mauricio Martinez, Jr., [and] Martha Diaz.‖
Defendant relies on the circumstance that both CALJIC No. 3.32 as read and the
information refer in the singular to ―a mental state that is an element of the crimes
charged‖—that being, he contends, malice aforethought, as the information goes
on to elaborate. He likewise points to CALJIC No. 8.10, which, as read to this
jury, described a single mental state for the murder counts.6 Defendant contends
that first degree murder with premeditation and deliberation is codified in section
189, and requires not one but two mental state elements: (1) express malice
aforethought and (2) premeditation and deliberation, regarding which the jury was
instructed with CALJIC No. 8.20.7 He argues it is reasonably likely lay jurors

6      CALJIC No. 8.10 read as follows: ―The defendant is accused in Counts 1
and 2 of the information of having committed the crime of murder, a violation of
Penal Code Section 187. Every person who unlawfully kills a human being with
malice aforethought is guilty of the crime of murder in violation of Section 187 of
the Penal Code. [¶] In order to prove such crime each of the following elements
must be proved: One, a human being was killed; two, the killing was unlawful;
and, three, the killing was done with malice aforethought. [¶] . . . A killing is
unlawful if it was neither justifiable nor excusable.‖

7      CALJIC No. 8.20 read as follows: ―All murder which is perpetrated by any
kind of willful, deliberate, and premeditated killing with the express malice
aforethought is murder of the first degree. The word ‗willful‘ as used in this
instruction means intentional. The word ‗deliberate‘ means formed or arrived at
or determined on as a result of careful thought in weighing the considerations for
and against the proposed course of action. The word ‗premeditated‘ means
considered beforehand. [¶] If you find the killing was preceded and accompanied
by a clear deliberate intent on the part of the defendant to kill which was a result
of deliberation and premeditation so that it must have been formed upon a pre-
existing reflection and not upon a sudden heat of passion or other condition
precluding the idea of deliberation, it is murder of the first degree. [¶] The law
does not undertake to measure in units of time the length of the period during
                                                          (Footnote continued on next page.)


                                         46
―would have understood that since they were specifically instructed on the effect
of a finding that [defendant] did not harbor malice due to his mental retardation,
the omission of a similar instruction on the effect of a finding that [defendant] did
not harbor premeditation and deliberation was intentional. In other words, and
consistent with the other instructions and the language of the charging document,‖
he claims, ―the jurors would have understood that they were not given a similar
instruction on the effect of a finding that [defendant] harbored malice but did not
harbor premeditation and deliberation due to his mental retardation because they
simply were not permitted to make any such finding.‖
        He finds further support for this conclusion in the circumstance that the trial
court modified CALJIC No. 8.45, defining involuntary manslaughter, to
specifically instruct the jurors that ―If you find that the defendant committed an
unlawful killing, but due to a mental defect or mental impairment, you find that he
was unable to form malice aforethought or an intent to kill, you must find the
defendant guilty of involuntary manslaughter,‖ but did not provide a similar
instruction advising the jurors that if they found that defendant committed an
unlawful killing with malice aforethought, but that due to a mental defect or



(Footnote continued from previous page.)

which the thought must be pondered before it can ripen into an intent to kill which
is truly deliberate and premeditated. The time will vary with different individuals
and under varying circumstances. [¶] The true test is not the duration of time, but
rather the extent of the reflection. A cold, calculated judgment and decision may
be arrived at in a short period of time, but a mere unconsidered and rash impulse,
even though it include an intent to kill, is not such deliberation and premeditation
as will fix an unlawful killing as murder of the first degree. [¶] To constitute a
deliberate and premeditated killing, the slayer must weigh and consider the
question of killing and the reasons for and against such a choice and, having in
mind the consequences, he decides[s] to and does kill.‖



                                           47
mental impairment he was unable to premeditate or deliberate, they had to find
him guilty of second degree murder.
       Defendant further contends that the prosecutor‘s arguments, rather than
correcting the instruction‘s misleading impression the intellectual disability
defense could be considered only on the issue of malice, only fortified it by
focusing almost exclusively on intent to kill and not premeditation and
deliberation, and highlighting the evidence the prosecutor argued showed that
defendant intended to kill despite his intellectual deficits.
       The Attorney General contends the jury would have understood CALJIC
No. 3.32 to permit it to consider defendant‘s intellectual disability evidence in
determining whether he premeditated and deliberated the murders, citing People v.
Rogers, supra, 39 Cal.4th at page 880 (Rogers). There, the jury found the
defendant guilty of one count of first degree murder and one count of second
degree murder and found true a multiple-murder special-circumstance allegation.
The jury in Rogers was instructed in the language of former CALJIC No. 3.36,
later renumbered CALJIC No. 3.32, that ― ‗[e]vidence has been received regarding
a mental disease or mental defect or mental disorder of the defendant at the time of
the offenses charged in counts one and two and in the lesser included offense of
voluntary manslaughter. You may consider such evidence solely for the purpose
of determining whether or not the defendant actually formed the mental state
which is an element of the crimes charged in the information and the crime of
voluntary manslaughter.‘ ‖ (Rogers, supra, at p. 880.) The defendant in Rogers
argued the trial court ―erred by failing to identify the specific mental state or
states—namely premeditation and deliberation—to which defendant‘s mental
health evidence was relevant.‖ (Ibid.) That the use note for the instruction
directed the trial judge to ―specify the mental state or intent required in each



                                          48
specific count,‖ the Rogers defendant argued, further supported his claim of error
in the failure to do so. (Ibid.)
       This court found no merit in the defendant‘s arguments, reasoning ―[w]e
previously have rejected claims that a trial court erroneously failed to identify
premeditation and deliberation as mental states to which evidence of mental
disease or defect was relevant, in cases where the trial court either explained that
premeditation and deliberation were mental states necessary for a conviction of
first degree murder [citations] or instructed that ‗ ―[t]he mental state required is
included in the definition of the crime charged‖ ‘ . . . . In the foregoing cases, in
light of full instructions defining first degree murder including an explanation of
premeditation and deliberation, we concluded ‗a reasonable jury would have
understood that the requisite mental states (as set forth in the definitions of the
crimes) were the same ―mental states‖ that could be considered in connection with
the evidence of defendant‘s mental disease, defect, or disorder.‘ ‖ (Rogers, supra,
39 Cal.4th at p. 881.)
       Our reasoning in Rogers applies with equal force here. Defendant does not
dispute that jurors understood premeditation and deliberation were ―mental states.‖
Contrary to defendant‘s argument, we have no doubt jurors would likewise have
understood the ―mental state which is an element‖—with respect to which
CALJIC No. 3.32 directed them to consider the intellectual disability evidence in
deciding whether he was guilty of first degree murder—encompassed the concepts
of premeditation and deliberation. Jurors were instructed that ―[m]urder is
classified into two degrees, and if you should find the defendant guilty of murder
you must determine and state in your verdict whether you find the murder to be
first or second degree.‖ This instruction necessarily directed jurors, once they
found that defendant killed with malice aforethought as charged in Counts 1 and 2
(as to which defendant does not contend the jury was not properly instructed to

                                          49
consider the intellectual disability evidence), to make the further determination
whether he harbored the mental state required for first degree murder, a
determination to which the intellectual disability evidence was thus equally
relevant and applicable. The circumstance that much of the parties‘ closing
arguments focused not on premeditation and deliberation but on intent to kill does
not alter this conclusion; nothing in those arguments expressly or impliedly
directed jurors not to consider the intellectual disability evidence on the question
whether defendant premeditated and deliberated the killings as required for a
conviction of first degree murder.
         Defendant is correct that in directing the jury to consider the evidence of his
intellectual disability solely on the question whether he formed the mental state
required for the murder charges, the instruction effectively told the jury it must not
consider that evidence on any other question before it. We presume the jury
followed the instruction. (People v. Homick (2012) 55 Cal.4th 816, 853.)
Therefore, if defendant was entitled to have the evidence considered on any other
charge or allegation besides the two murder charges, the instruction violated that
right.
         The Attorney General contends that because defendant was not relying on
his alleged intellectual disability in defense of either the dissuading charge or the
witness-killing special-circumstance allegation, he was not entitled to an
instruction relating the intellectual disability evidence to that charge or allegation,
and the version of CALJIC No. 3.32 given here was therefore not erroneous.
Citing defense counsel‘s closing argument, the Attorney General contends
defendant was relying on ―a completely different defense,‖ namely that his
conduct was the result of ―jealousy‖ and ―frustration,‖ and was not an attempt to
dissuade Diaz from testifying. We disagree. Although the bulk of defense
counsel‘s closing arguments focused on defendant‘s emotional state at the time of

                                           50
the offenses and not his intellectual disability, counsel did argue generally that
―Mr. Townsel lacks the mental and intellectual functioning in order to participate
in abstract thinking or dealing with consequences and judgment‖; and that ―if the
actions which occurred beforehand were the actions of a normal functioning,
intelligent human being, I think that is not the case.‖ Importantly, the intellectual
disability evidence was entirely consistent with, and reinforced, the argument that
defendant acted out of jealousy and frustration rather than out of rational thought,
a planning process, or a weighing of the consequences. Because the trial court
effectively instructed the jury not to consider that evidence on the charge and
allegation, it erred under both state law and the federal Constitution.
       The Attorney General contends the error did not prejudice defendant,
asserting that the intellectual disability evidence was ―strongly challenged‖
through cross-examination and rebuttal testimony. She also observes that the jury
rejected the intellectual disability defense in finding defendant guilty of first
degree murder, and argues there is no reason to believe it would have accepted the
defense in connection with the dissuading charge and the witness-killing special-
circumstance allegation. But premeditation and deliberation—the mental state
required for first degree murder—differs from that required for the dissuading
charge and witness-killing allegation, and the jury‘s rejection of the intellectual
disability evidence in finding premeditation and deliberation therefore does not
necessarily compel the conclusion that it would have done likewise with respect to
the charge and allegation. Specifically, with respect to the dissuading charge, the
jury was instructed, as relevant to mental state, that it had to find the defendant
had ―the specific intent to prevent or dissuade a witness or victim from giving
testimony at a trial proceeding or inquiry authorized by the law.‖ With respect to
the mental state required for the special circumstance, the jury was instructed it
had to find ―the witness was intentionally killed for the purpose of preventing her

                                          51
testimony in a criminal proceeding.‖ These mental states entail knowledge and
purpose beyond an intent to kill ―formed or arrived at or determined on as a result
of careful thought in weighing the considerations for and against the proposed
course of action‖ and ―considered beforehand,‖ and clearly implicate some level
of intellectual understanding of the criminal justice system, to which the evidence
of intellectual disability was particularly relevant. We cannot say the evidence of
intellectual disability that the jury evidently did not view as sufficient to cast doubt
on the prosecution‘s evidence of premeditation and deliberation could not have
raised a doubt regarding whether, in killing Diaz, defendant acted for the purpose
of preventing her testimony in a criminal proceeding. In other words, the Attorney
General has not met her burden of showing that the guilty verdict on the
dissuading charge and the true finding on the witness-killing special-circumstance
allegation were ―surely unattributable‖ to the trial court‘s error in essentially
instructing the jury not to consider the intellectual disability evidence in relation to
that charge and allegation. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279;
Chapman v. California (1967) 386 U.S. 18, 24.) Defendant‘s conviction on the
dissuading charge and the true finding on the witness-killing special-circumstance
allegation must therefore be reversed.
       Defendant contends the trial court‘s instructional errors, considered
together with its other asserted errors undercutting his intellectual disability
defense, prejudicially affected the jury‘s penalty determination and cumulatively
require reversal of the judgment in its entirety. We have rejected the claims that
Dr. Coleman‘s testimony, and the testimony of the lay witnesses and asserted
hearsay evidence pertaining to defendant‘s alleged intellectual disability were
erroneously admitted, and that the trial court erred in allowing certain cross-
examination of the defense expert witness, Dr. Christensen. Consequently, we
need not address their purported impact on the penalty phase. With respect to the

                                          52
potential impact on the death judgment of our reversal of the dissuading charge
and the witness-killing special-circumstance allegation, we note the court
instructed the jury, at the penalty phase, to disregard instructions given at the prior
phase of trial and, after reading the standard instruction on factors relevant to the
penalty determination, affirmatively told the jury: ―The mental impairment
referred to in this instruction is not limited to evidence which excuses the crime or
reduces the defendant‘s culpability, but includes any degree of mental defect or
disease which the jury determines is of a nature that death should not be imposed.
That the jury has rejected a defense of diminished mental faculties, at a previous
stage of the proceedings does not prohibit its consideration of evidence showing
some impairment as a reason not to impose death. The jury cannot consider the
presence of mental illness or mental defect in aggravation.‖ (Italics added.) Thus,
the jury was, in effect, told that, despite its guilt phase verdicts, it could consider
defendant‘s intellectual disability in mitigation of penalty. (And see Brown v.
Sanders (2006) 546 U.S. 212, 220 [an invalidated sentencing factor renders a
sentence unconstitutional unless one of the other sentencing factors enables the
sentencer to give aggravating weight to the same facts and circumstances]; see
also People v. Bonilla (2007) 41 Cal.4th 313, 334 [an invalidated special
circumstance ―was superfluous for purposes of death eligibility and did not alter
the universe of facts and circumstances to which the jury could accord . . .
weight‖].) Reversal of the penalty is not required.
       B. Penalty phase issues
           1. Admission of defendant’s racist slur
       Defendant contends the trial court abused its discretion and violated his
rights to a fair trial and a reliable penalty determination under the Eighth and
Fourteenth Amendments to the federal Constitution by admitting evidence that he



                                           53
employed a racial slur in communicating a threat to Beatriz Cruz. The contention
lacks merit.
       The prosecution‘s pretrial notice of evidence to be presented in aggravation
pursuant to section 190.3 referred to evidence of ―criminal activity involving force
and violence,‖ including violations of section 242 and section 136.1, committed
against Beatriz Cruz on April 14 and 17, 1986, respectively. (See § 190.3, factor
(b).) Specifically, the prosecution offered to prove defendant was arrested for the
commission of a battery on Cruz on April 14, 1986, and later called to tell her he
was angry that she had had him arrested, saying ―she was going to pay‖; in a
subsequent phone call, he warned her, ―You better get out of the house because
something is going to happen to you,‖ and said he was ―going to kill your
wetback,‖ referring to her Mexican boyfriend. Defense counsel moved to exclude
the evidence on the grounds the threats amounted to misdemeanor conduct not
reflecting a ―present and immediate ability or intent to carry out those threats,‖ and
consequently not falling within the ambit of section 190.3, factor (b). Defense
counsel also asserted, citing Evidence Code section 352, that the evidence was
―extremely prejudicial and [its] probative value is highly outweighed.‖ The trial
court overruled the defense objections. Pursuant to its ruling, Cruz testified
regarding defendant‘s threats against her and her boyfriend, noting defendant said
―he was going to kill my wetback because he‘s from Mexico, calls him wetback.‖
       On appeal, defendant raises a threefold argument not explicitly presented to
the trial court: that admission of the threat against Cruz‘s boyfriend, and in
particular the ―wetback‖ slur, ―injected otherwise inadmissible and extraordinarily
inflammatory evidence suggestive of [defendant‘s] racism against Latinos, a
minority group to which the two victims in this case belonged.‖ Defendant also
claims the threat should have been excluded as cumulative of the other threats



                                         54
against Cruz and, considered in light of other asserted trial errors, resulted in
cumulative prejudice.
       Although defendant cited Evidence Code section 352 at trial, he failed to
articulate the argument he raises here regarding a potential for prejudice stemming
from the racial slur specifically. Rather, the thrust of his objection was that the
proffered evidence did not rise to the level of criminal activity required by Penal
Code section 190.3, factor (b), and his invocation of Evidence Code section 352
was insufficient to put the trial court on notice that he believed the slur, in itself,
was ―extremely prejudicial.‖ Accordingly, he has forfeited the claim the trial
court abused its discretion in not explicitly weighing the probative value of the
evidence against the possibility of prejudice resulting from the racial slur.
       In any event, we see no abuse of discretion and no constitutional violation
in the trial court‘s ruling. The court could reasonably conclude that the evidence
defendant threatened Cruz and her boyfriend was relevant and admissible under
section 190.3, factor (b), and that its probative value outweighed any risk of undue
prejudice. Contrary to defendant‘s argument, the threat against Cruz‘s boyfriend
was not merely cumulative of his threat against Cruz; rather, the trial court could
reasonably conclude the threat to kill the boyfriend was intended to exert
additional persuasive power over Cruz, and defendant himself injected the slur
into his threat. Moreover, the prosecutor, in his closing argument, made no effort
to portray defendant as a racist, and, as defendant concedes, race played no role in
these crimes. We see no possibility that the jury considered the threat for an
improper purpose, or that its admission resulted in cumulative prejudice.
Defendant‘s claim therefore fails.
           2. Pitchess ruling
       Madera County Department of Corrections Officer Frank Reiland testified
in aggravation of penalty under section 190.3, factor (b), that on June 28, 1990,

                                           55
defendant was agitated while in his jail cell. When Officer Reiland opened the
cell door, defendant tried to exit, and Officer Reiland pushed him back into the
cell. Defendant yelled obscenities at him, kicked his knee, and punched at him,
grazing his temple. Before the start of the penalty phase, defendant moved,
pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), for
discovery of any complaints and related investigative reports filed against Officer
Reiland for excessive force or harassment. In support, defense counsel submitted
a sworn declaration stating the defense expected to show that if in fact defendant
used force against Officer Reiland, he did so in self-defense against acts of
excessive and illegal force by Reiland. The trial court held a hearing on the
motion, stating it had conducted an in camera review of Officer Reiland‘s
department of corrections personnel file, a file of reports written by Officer
Reiland, a ―pre-employment background file,‖ and a personnel file maintained at
the Madera County personnel office. Of those materials, the court found relevant
to this case one report written by Officer Reiland, a copy of which it provided to
counsel for each side. The court confirmed there was no ―evidence of any
complaints against Officer Reiland for excessive use of force or harassment,‖ and
ruled the remainder of the materials nondiscoverable. In his opening brief,
defendant asked us to conduct an independent review of the material the trial court
reviewed in ruling on his Pitchess motion in order to determine whether the trial
court should have ordered the disclosure of any other materials in Officer
Reiland‘s personnel records and, if so, to disclose them to him now and permit
him an opportunity to demonstrate prejudice from the error. The Attorney General
did not oppose defendant‘s request.
       During record-correction proceedings following the entry of judgment in
this case, the trial court ordered that Officer Reiland‘s personnel file, as it existed
at the time the court examined it on the defense Pitchess motion, be made part of

                                           56
the sealed record on appeal and transmitted to this court. Unfortunately, the order
was not complied with, and the record on appeal is devoid of any of the materials
reviewed by the trial court. After our clerk‘s inquiries of superior court personnel
failed to locate the missing file, we asked the parties to brief the impact of its
absence from the record. Following that initial round of supplemental briefing, we
directed the superior court to order the custodian of Officer Reiland‘s personnel
file to produce in the superior court the records the custodian previously produced
and the court reviewed in ruling on defendant‘s Pitchess motion, to review the
records so produced and confirm whether they were the records it reviewed in
ruling on defendant‘s Pitchess motion, to identify the particular document it
ordered disclosed to defendant at trial, and then to transmit all of the documents it
had reviewed under seal to this court. We further ordered the custodian, in the
event he or she were unable to produce the files, to submit a declaration under
penalty of perjury so stating, with an explanation of why production was
impossible. We directed the superior court to hold any hearings necessary to
comply with our order, and to transmit a record of any such hearings and any
resultant findings, along with any sealed files and any declaration by the custodian
of records, to this court.
       The superior court held hearings pursuant to our order, eventuating in an
order stating that the custodian, Madera County Counsel, was unable to produce
the records responsive to our order and that the trial judge, the Honorable Paul
Martin (retired), was unable, after reviewing his notes from the trial, to recall what
records he reviewed in making the Pitchess ruling. The parties do not dispute the
records are lost and cannot be reconstructed and have provided further
supplemental briefing addressing the impact on this appeal of the Pitchess
materials‘ absence from the appellate record.



                                          57
       A complete and accurate appellate record is needed to effectuate the rights
to meaningful appellate review and the effective assistance of appellate counsel in
capital cases. (See, e.g., Dobbs v. Zant (1993) 506 U.S. 357, 358; § 190.7
[contents of record in capital case]; Cal. Rules of Court, rule 8.610 [same].)
Defendant contends a complete and accurate record is particularly necessary for
appellate review of Pitchess rulings. After the trial in this case, in People v. Mooc
(2001) 26 Cal.4th 1216, 1229, we provided trial courts with guidance in this
regard, stating that a judge making a Pitchess determination ―should . . . make a
record of what documents it examined before ruling on the Pitchess motion. Such
a record will permit future appellate review. If the documents produced by the
custodian are not voluminous, the court can photocopy them and place them in a
confidential file. Alternatively, the court can prepare a list of the documents it
considered, or simply state for the record what documents it examined. Without
some record of the documents examined by the trial court, a party‘s ability to
obtain appellate review of the trial court‘s decision, whether to disclose or not to
disclose, would be nonexistent.‖ (See People v. Myles (2012) 53 Cal.4th 1181,
1209 [where the trial court stated for the record what documents it examined in
making its Pitchess ruling, the record was sufficient for appellate review].)
       We have recognized that reversal may be indicated when ― ‗ ―critical
evidence or a substantial part of a [record] is irretrievably lost or destroyed, and
there is no alternative way to provide an adequate record so that the appellate court
may pass upon the question sought to be raised.‖ ‘ ‖ (People v. Galland (2008) 45
Cal.4th 354, 370.) In defendant‘s view, this case presents such a scenario; that is,
he contends, the absence of the Pitchess materials from the record deprives him of
meaningful appellate review of the trial court‘s Pitchess ruling and dictates
reversal of the penalty judgment.



                                          58
       The Attorney General argues, to the contrary, the trial court‘s description of
the records in the reporter‘s transcript of the original Pitchess hearing, and the
identification in these proceedings of the document released to defendant, provides
a record adequate to enable this court to meaningfully review the trial court‘s
ruling. Defendant disagrees with the proposition the record is adequate for
meaningful review.
       We agree with defendant. We find it evident that the record, lacking
specification of either the materials the trial court reviewed in ruling on the
Pitchess motion or any particularized description of them, is inadequate to permit
meaningful appellate review. We simply cannot say, on the record as it stands
after exhaustive efforts below to locate the missing materials, whether or not there
was additional information in Reiland‘s personnel records that should have been
disclosed to the defense.
       We must now determine the consequence for this appeal of the inadequacy
of the record. The Attorney General contends reversal is unwarranted because
defendant fails to show prejudice, that is, a reasonable probability the outcome of
the case would have been different had Pitchess-type information about Reiland
been disclosed to the defense. She reasons the jury heard abundant aggravating
evidence, including the circumstances of the capital offense, which involved
defendant‘s commission of two brutal, callous first degree murders after
repeatedly threatening victim Diaz in an attempt to dissuade her from pursuing a
complaint she had filed against him for abuse. The jury also heard evidence
defendant had assaulted Diaz on a previous occasion; punched another woman,
Beatrice Cruz, in the mouth; and thrown a chair at another correctional officer,
Sergeant Davis. The aggravating evidence, she contends, substantially
outweighed the evidence offered in mitigation, even were Reiland to have been
impeached with hypothetically available Pitchess material revealing one or more

                                          59
incidents of excessive force or harassment.8 Defendant disputes both the Attorney
General‘s conclusion that prejudice is lacking and her application of the Watson
standard of review in arriving at that conclusion. (See People v. Watson (1956) 46
Cal.2d 818, 836 (Watson) [state law error deemed harmless if appellant fails to
show a reasonable probability of a different outcome in the absence of the error].)
       We agree with defendant that Watson does not apply here. State law errors
in the penalty phase of a capital trial are reviewed not under Watson but under the
more stringent Brown standard, which directs us to determine whether there is a
reasonable possibility defendant would have received a more favorable result in
the absence of the error. (People v. Brown (1988) 46 Cal.3d 432, 446–448
(Brown); see People v. Gonzalez (2006) 38 Cal.4th 932, 961 [― ‗Brown‘s
―reasonable possibility‖ standard and Chapman‘s ―reasonable doubt‖ test . . . are
the same in substance and effect.‘ ‖].)



8       Citing People v. Hustead (1999) 74 Cal.App.4th 410, 418, defendant
contends ―his right to discovery was not limited solely to ‗complaints‘ for
‗excessive use of force or harassment.‘ Rather, once the judge reviewed the
produced documents, [defendant] was entitled to evidence that Reiland had made
false reports which would be relevant to impeach his written ‗incident report‘ on
which his testimony was based.‖ To the extent defendant is asserting that under
Brady v. Maryland (1963) 373 U.S. 83 he was entitled to disclosure of favorable
material evidence, including evidence impeaching Reiland‘s credibility, he is
correct. To obtain discovery of a peace officer‘s personnel records within the
Pitchess framework, however, a defendant must file a written motion showing,
with sufficient specificity, the relevancy of the records sought to the subject matter
of the litigation, and the custodian is required to bring to court only documents
potentially relevant to the defendant‘s motion. (People v. Mooc, supra, 26 Cal.4th
at p. 1226.) Defendant‘s Pitchess motion, unlike that in Hustead, requested
disclosure only of complaints involving excessive force or harassment. He cannot
expand the scope of his motion on appeal, and in the posture of this case for us to
fault the trial court for not expressly addressing whether any of the material in
Reiland‘s file reflected dishonesty would be a pointless exercise.



                                          60
       Applying the Brown standard, we see no reasonable possibility defendant
would have received a more favorable result in this proceeding, even assuming an
adequate record would have enabled us to conclude the trial court improperly
failed to disclose material responsive to defendant‘s Pitchess motion. That is,
even assuming defendant had been able to undermine Reiland‘s testimony
concerning the June 28, 1990, incident with evidence Reiland had on one or more
occasions engaged in the use of excessive force or harassment in the course of his
duties, there is no reasonable possibility the jury would have returned a different
penalty phase verdict. The incident, which was minor enough not to require
Reiland to seek medical attention, constituted but a small part of the prosecution‘s
case in aggravation. The jury heard other, much more powerful evidence of
defendant‘s violent conduct under section 190.3, factor (b), including his beatings
of Beatrice Cruz and Martha Diaz, and was familiar with the circumstances of the
capital offense (id., factor (a)), including his terror campaign against the residents
of the house where the victims lived and his brutal and callous shootings of Diaz
and Mauricio Martinez. Indeed, in his closing argument the prosecutor noted ―it‘s
the People‘s position that this [the circumstances of the offense] alone
substantially outweighs anything in mitigation in this case.‖ Consistent with that
estimation, the prosecutor devoted the bulk of his argument to a detailed review of
the evidence of the capital crimes. Next the prosecutor focused on defendant‘s
batteries of Beatrice Cruz and Martha Diaz, observing that Cruz‘s testimony was
uncontradicted. True, the prosecutor asked the jury to accord significance to the
Reiland incident. In that regard, the prosecutor said: ―You have the battery upon
Officer Reiland, a custodial officer for the Department of Corrections here in
Madera. And Officer Reiland testified how the defendant kicked him and then
took a swing at his head and grazed his forehead. [¶] Now, the defense may argue
to you that since there was no injury to Officer Reiland that this isn‘t something

                                          61
substantial, you shouldn‘t give it much weight. But I would submit that the
legislature has seen fit to make this a separate crime other than just a battery, a
242. This is a crime of battery upon a correctional officer. And it is significant
for that reason.‖ The prosecutor thus seemed to say the Reiland incident was
significant not by virtue of its inherent seriousness but because it was a different
crime than the others defendant had committed. The prosecutor then discussed
defendant‘s assault on Sergeant Davis, arguing in essence that although the jury
should accept Davis‘s version of events, the incident was not as serious as the
other batteries in the case ―simply because it wasn‘t as threatening and it didn‘t
actually involve an application of physical force or violence. And, therefore, it
should not be given as much weight as the other criminal acts which we
presented.‖
       In sum, in his closing argument the prosecutor placed his greatest emphasis
on the circumstances of the capital crime while placing substantially less emphasis
on the section 190.3, factor (b) evidence, including the Reiland incident. At no
time did he suggest the jury ought to accord the latter dispositive weight. There is
no reasonable possibility the lack of an appellate record adequate to enable us to
review the trial court‘s ruling on defendant‘s Pitchess motion affected the
outcome.
           3. Constitutionality of the death penalty law
       Defendant contends California‘s death penalty statute, as interpreted by this
court and applied at his trial, violates the federal Constitution in numerous
respects. We have rejected the same arguments in other cases, and decline
defendant‘s invitation to reach different conclusions in this one. Thus:
       Section 190.2 does not fail to meaningfully narrow the pool of murderers
eligible for the death penalty. (People v. Williams (2010) 49 Cal.4th 405, 469.)



                                          62
       Permitting the jury to consider the circumstances of the crime (§ 190.3,
factor (a)) in determining penalty does not result in the arbitrary and capricious
imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641.)
       ―The United States Supreme Court‘s decisions in Apprendi v. New Jersey
[(2000)] 530 U.S. 466, and its progeny, do not establish a Sixth Amendment right
to determination of particular aggravating factors, or a finding that aggravation
outweighs mitigation beyond a reasonable doubt or by a unanimous jury.‖
(People v. Abel (2012) 53 Cal.4th 891, 942.) Likewise, ―neither the cruel and
unusual punishment clause of the Eighth Amendment, nor the due process clause
of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt
that aggravating circumstances exist or that aggravating circumstances outweigh
mitigating circumstances or that death is the appropriate penalty.‖ (People v. Blair
(2005) 36 Cal.4th 686, 753.) ―There is no constitutional requirement to instruct
either on any burden of persuasion regarding the penalty determination, or on any
presumption that life without the possibility of parole is the favored or appropriate
penalty.‖ (People v. Garcia (2011) 52 Cal.4th 706, 764.) There is likewise no
requirement jurors be instructed they need not be unanimous in finding mitigating
factors, and there is no reasonable likelihood the jury here understood the contrary.
(People v. Moore (2011) 51 Cal.4th 1104, 1139–1140.) Nor does the Constitution
require that the jury be instructed there is no burden of proof (People v. Houston
(2012) 54 Cal.4th 1186, 1232), or that a verdict of life is required if it determines
that the mitigating circumstances outweigh the aggravating ones (People v. Jones,
supra, 57 Cal.4th at p. 980).
       The failure to require that the jury make written findings during the penalty
phase did not violate defendant‘s rights under the Sixth, Eighth, and Fourteenth
Amendments. (People v. Mai (2013) 57 Cal.4th 986, 1057.)



                                          63
         CALJIC No. 8.88 is not defective under the Eighth and Fourteenth
Amendments because it instructs the jury to determine whether the death penalty
is ―warrant[ed],‖ rather than whether it is ―appropriate.‖ (People v. McKinzie
(2012) 54 Cal.4th 1302, 1361; People v. Breaux (1991) 1 Cal.4th 281, 316.)
        ―The inclusion of the phrase ‗so substantial‘ in CALJIC No. 8.88,‖ by which
the jurors in this case were instructed they ― ‗must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole,‘ ‖ does not
render the instruction unconstitutionally vague. (People v. Abel, supra, 53 Cal.4th
at p. 943.)
         By instructing the jurors, in the language of CALJIC No. 8.85, that they
could consider as a mitigating factor evidence that in committing the capital
crimes defendant was acting under ―extreme‖ mental or emotional disturbance,
and rejecting his request that the instruction be modified to delete the adjective
―extreme,‖ the trial court did not violate his constitutional rights. (People v.
Abilez, supra, 41 Cal.4th at p. 534.)
         The death penalty law is not constitutionally defective because it does not
require that either the trial court or this court undertake a comparison between this
and other similar cases regarding the relative proportionality of the sentence
imposed. (People v. Jones, supra, 57 Cal.4th at p. 979.)
         The death penalty law does not violate the equal protection clause because
persons facing a death sentence lack certain procedural protections, such as written
findings and unanimity as to aggravating factors including unadjudicated criminal
activity under section 190.3, factor (b), afforded to persons charged with
noncapital offenses. (People v. Jones, supra, 57 Cal.4th at p. 981; People v.
Valdez (2012) 55 Cal.4th 82, 180; People v. Watson (2008) 43 Cal.4th 652, 703–
704.)

                                          64
      The death penalty does not violate international law, the Eighth and
Fourteenth Amendments, or ― ‗ ―evolving standards of decency.‖ ‘ ‖ (People v.
Virgil (2011) 51 Cal.4th 1210, 1289–1290.)




                                       65
                                     I. DISPOSITION
       The conviction for attempting to dissuade a witness from testifying is
reversed and the witness-killing special-circumstance finding is vacated. In all
other respects, the judgment is affirmed.


                                                 WERDEGAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                        66
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Townsel
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S022998
Date Filed: April 21, 2016
__________________________________________________________________________________

Court: Superior
County: Madera
Judge: Paul R. Martin

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, and C. Delaine Renard, Deputy State Public Defender, for
Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Sean M. McCoy. Lewis A.
Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

C. Delaine Renard
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Louis M. Vasquez
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1668