People v. Hayes

Full title: THE PEOPLE, Plaintiff and Respondent, v. BLUFFORD HAYES, JR., Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

Date published: Nov 29, 2017

C077151 (Cal. Ct. App. Nov. 29, 2017)

Opinion

C077151

11-29-2017

THE PEOPLE, Plaintiff and Respondent, v. BLUFFORD HAYES, JR., Defendant and Appellant.

Duarte, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SC030924A)

This complex case comes to us from a 1980 murder resulting in a 1982 sentence of death for defendant Blufford Hayes, Jr. For reasons we will explain, defendant's case was retried in 2014, and a jury found him guilty of first degree murder and residential burglary, and found true the special circumstance that the murder was committed during the burglary and an allegation that he had used a deadly weapon, a knife. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 459, 12022, subd. (b).)¹ The trial court struck the special circumstance and sentenced defendant to 25 years to life plus one year and imposed and stayed (see § 654) a determinate seven-year sentence for the burglary. Defendant timely appealed.

1 Further undesignated statutory references are to the Penal Code.

On appeal, defendant raises many at times interwoven claims of prejudicial error. Because we conclude defendant's many claims lack merit, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 1, 1980, defendant robbed and repeatedly and fatally stabbed Vinod "Pete" Patel. Defendant committed a similar robbery of James Cross a few days later. He then fled to Oregon, and later lied to the police about both incidents. A jury found him guilty of robbery, burglary, and murder, and found true special circumstances of murder during the commission of robbery and burglary, and an allegation that defendant used a knife. In 1982, defendant was sentenced to death.

In 1990, our Supreme Court reversed the robbery count and robbery-murder special circumstance due to misinstruction on the "immediate presence" element of robbery, but otherwise affirmed the judgment and penalty. (People v. Hayes (1990) 52 Cal.3d 577, 597, 628-629, 646 (Hayes I).) The evidence then showed in part:

"The body of Vinod Patel, the resident manager and half owner of the Rice Motel in Stockton, was found on the floor of one of the motel rooms. Patel's body was bound with coat hanger wire; he had been stabbed to death. The motel's office, as well as the adjoining living quarters for the manager, had been ransacked. The missing items included cigarettes and cash. Testifying [on] his own behalf at trial, defendant admitted killing Patel but maintained that he did so only after being assaulted by Patel." (Hayes I, supra, 52 Cal.3d at p. 597.)

Witness Andrew James testified at defendant's first trial that defendant took Patel's cigarettes, and told James that he had killed Patel, ransacked the motel office looking for Patel's money, and had been careful to take steps not to leave fingerprints. (Hayes I, supra, 52 Cal.3d at p. 598.) James's girlfriend, Michelle (or Michele) Gebert, testified defendant said he had " 'ripped the office off,' but he told Gebert not to worry about Patel reporting it because Patel 'would not say anything to anybody.' " (Ibid.)

In 2005, an en banc decision of the Ninth Circuit Court of Appeals found:

"Before trial, the prosecutor [Terrence Van Oss] had reached an agreement with James's attorney to grant transactional immunity for the Patel killing and to dismiss the other pending unrelated felony charges against James. However, the State wished to keep the promise to dismiss the felony charges away from the trial judge and jury. Therefore, the prosecutor extracted a promise from James's attorney that he would not tell James about the deal. The idea was that James would be able to testify that there was no deal in place, without perjuring himself, because James would not personally be informed of the arrangement." (Hayes v. Brown (9th Cir. 2005) 399 F.3d 972, 977 (Hayes II).)

As Hayes II interpreted these facts, "the State knowingly presented false evidence to the jury and made false representations to the trial judge as to whether the State had agreed not to prosecute James on his [unrelated] pending felony charges." (Hayes II, supra, 399 F.3d at p. 978.) "[A] key part of the agreement was to keep James in the dark, so that he could testify that there was no deal without perjuring himself." (Id. at p. 979.)

A divided court found the error prejudicial as follows:

"To convict Hayes of felony murder, the jury had to decide whether Hayes murdered Patel 'as a result of the commission of' a burglary. Thus, a pivotal question before the jury was whether Hayes had formed the intent to burglarize the office before killing Patel. The State's theory was that Hayes had lured Patel into the motel room for the purpose of murdering him so that Hayes could burglarize the motel's office. Hayes's theory was that a spontaneous fight occurred when Patel arrived at the motel room. Hayes contended that James was the one who initiated the office burglary after Hayes had come over to James's room to get a ride away from the motel after the killing.

"Thus, by any measure, James was a key witness. Indeed, there is little doubt that James's testimony was the centerpiece of the prosecution's case. Nearly all of the other evidence against Hayes was circumstantial. James was the

only witness who testified that Hayes confessed to the murder and the burglary. The importance of this testimony cannot be understated. . . .

"Most importantly, James's testimony was critical to the State's burglary case, which was essential to both the first-degree murder conviction and the sentence. James testified that he went directly to his car without going to the office, that he did not participate in the burglary, and that the stolen property had already been placed in the car by Hayes. Hayes testified that he told James that he had killed Patel, that James went to investigate, and that Hayes next saw James burglarizing the office." (Hayes II, supra, 399 F.3d at pp. 985-986.)

The Hayes II majority remanded with directions to grant defendant's petition for habeas corpus. (Hayes II, supra, 399 F.3d at p. 988.)²

2 The dissent reasoned that other evidence thoroughly discredited James. The jury knew James had been given immunity for the Patel crimes. Thus, even had the jury known of James's agreement in the unrelated case, the result would not change. Further, the majority ignored both Gebert's corroborating testimony and defendant's commission of a similar crime against Cross. (Hayes II, supra, 399 F.3d at pp. 990-992 (dis. opn. of Tallman, J.).)

On August 29, 2005, the trial court (Hastings, J.) granted defendant's motion to dismiss the robbery count and the robbery-murder special circumstance on speedy trial grounds. On September 9, 2005, a fourth amended complaint was filed. On April 8, 2013, the People dropped the death penalty. A new jury was sworn on January 13, 2014.

The People's evidence on retrial (before Lacy, J.) was very similar to the first trial, with the major exception that James, who had died in 2001, did not testify. Nor was his former testimony read to the jury. The retrial consisted of the prosecutor presenting unchallenged evidence and read-backs of former testimony, because defendant had invoked both his right to self-representation (see Faretta v. California (1975) 422 U.S. 806, 835-836 [45 L.Ed.2d 562, 581-582]) and his right to absent himself from the courtroom. He could listen to the trial remotely, participated in jury selection by objecting to some jurors, and participated in parts of the jury instruction conference, requesting or objecting to some instructions.

We outline the evidence from the second trial, largely agreed by the parties.

Patel lived in a residence connected to the motel's office, and kept at most $200 in a file cabinet, in which he also kept cartons of cigarettes to sell to residents. Mukesh Patel, a relative, worked at the motel for a few days in December 1979 during a college break. He testified that when Patel left the office, he would take a key ring with a master key and an office key otherwise kept on a hook in the office. The managerial living quarters were kept locked, while the door to the manager's office area was kept unlocked.

On December 27, 1979, Patel called the police to report defendant for trespassing. An officer saw signs that defendant had forced his way into room 9. Defendant told the officer he knew his rent was in arrears, but that he planned to have his girlfriend pay it soon. Defendant appeared to be under the influence of narcotics.

In December 1979, defendant's sister, Barbara Lord, lived in room 15. On New Year's Eve--after drinking with friends, defendant, and another brother (Robert Hayes)--Lord left, leaving defendant in her room. When Lord returned that afternoon, she found Patel dead on her floor.

Bearla Mae (May) Wyatt lived in room 16. Around 9:30 a.m. New Year's Day, she went to the office and saw defendant speaking calmly with Patel about defendant's report of a plumbing problem. Wyatt came back about 15 minutes later and the men were still there. Defendant left, allowing Patel to help Wyatt, and she heard Patel tell defendant he would handle the plumbing issue after he helped Wyatt. She later saw Patel go into room 15. Later, she saw defendant cross the parking lot toward James's car, wearing a jacket and pants, but no shirt, carrying a box. James was also carrying something like clothing, but not a box. Defendant got into James's car, and James drove off.

The motel was a U-shaped, two-story structure. Room 15 was about 107 feet from the manager's office.

Michelle Gebert lived in a room with James, her boyfriend. They used heroin, as did defendant. The motel had problems with drugs and prostitution. On New Year's morning, defendant knocked and asked for James; he was nervous and in a hurry and wanted a ride, but was not intoxicated. He was wearing a blue suit with wet spots, but no shirt or vest, which he had worn the night before. James took 10 to 15 minutes to get ready, while defendant kept looking out of the door and telling him to hurry. Defendant told Gebert he stole from the office. When she asked if he was worried about police, defendant said Patel would not say anything to anybody. After the two men left, Gebert saw cartons of cigarettes on the ground.

Gebert and Lord testified Patel was a "good man," a "fair man," and a "fairly nice" man.

Responding officers found Patel's body on its side in room 15, with stab wounds, bound by coat hangers at the wrists and ankles, with blood spatters on the bathroom floor and wall. No signs of a struggle were evident in the bedroom, but the office and Patel's attached living quarters had been ransacked.

In room 15, crime scene investigators found a leather satchel or purse with an empty knife sheath on the bed, a blue vest and a bloody dress shirt. The office desk and cabinet drawers were open or removed, and there were cartons of cigarettes on the floor. In Patel's living quarters, the drawers from the file cabinet were open and there was blood inside the door. There was a fixed-blade hunting knife that fit the sheath found in room 15, and cigarette cartons scattered around. Patel's keys were on the floor of his living room. The knife was in Patel's bedroom, not in the room where his keys were found.

Lord told officers that defendant carried a leather shoulder pouch and she last saw him wearing all three pieces of his blue suit, and a shirt.

A crime scene reconstructionist was of the opinion, based on blood spatter and other evidence, that the killing began in the bathroom, where Patel was standing. He was on or near the floor by the time he reached the bedroom.

On January 3, 1980, defendant called the police and asked if they wanted to talk about the motel "murder" and when told they did, defendant said " 'I wasn't in that room.' " When told that Lord had said he was in the room, defendant admitted he had been there, but claimed that he left right after Lord left. Defendant said he would be at the stationhouse at 4:00 p.m., but he never arrived.

On January 5, 1980, defendant had an altercation with James Cross at the Flamingo Motel in Stockton. In defendant's room, defendant hit Cross with a pistol, bound his hands and feet with coat hangers, took his money, and fired a shot into the floor. Police found a bullet in the floor, and defendant's fingerprints in the room.

Defendant was arrested in Oregon. On January 23, 1980, Detective Wingo interviewed defendant, who denied being at the Rice Motel the morning of January 1, 1980, and said he had not been at the Flamingo Motel for a year, even when he was told--truthfully--that his fingerprints were found in Cross's room.

A deputy coroner testified blood covered Patel's arm but because there was none under the coat hanger, he was bound before he was stabbed. A pathologist testified Patel had defensive cuts to his arm, wrist, and hand, and a total of 22 wounds, six in the chest inflicted with great force while Patel was immobile. Three of these were into the heart and three into the lungs. Patel bled to death within 15 minutes, probably sooner. Each chest wound was potentially fatal, indicating force, depth, and intent to kill.

Defendant's testimony from the first trial was read to the jury as follows: Defendant and his sister (Lord) each had motel rooms. He was a heavy user of both heroin and Ritalin, and had not slept for the last three days before the murder. He spent as much as $100 per day for heroin, and Ritalin cost him $6 per pill. He had no job and could not pay the rent. On New Year's Eve, he partied in his sister's room, along with his brother, Wyatt, and others. The next morning, he spoke with Patel about a plumbing problem in his sister's room. Patel told defendant to shut off the water, and that he would fix the problem later. They did not argue. Defendant followed Patel's instructions, then drank wine and fell asleep. He woke up to find Patel slapping him in the face and then "noticed that [Patel] had a knife," which he admitted was from the nearby leather pouch and sheath, but which he denied was his knife. When defendant reached for the knife, Patel cut him, and defendant grabbed Patel, forcing him to drop the knife, which defendant picked up. Patel then reached for a butcher knife on top of a dresser and defendant began stabbing him, while Patel fought back. Defendant bound Patel hand and foot with two coat hangers he had unwound, because he feared Patel would attack him again. Defendant testified he bound Patel so he would not have to hurt him further, yet he never sought any help for Patel. He went to the room used by James and Gebert and told James he had to take Patel down. When James expressed doubt, he told James to look for himself; after James went to do so, defendant eventually went to the manager's office, and found James taking cigarette cartons. At James's request, defendant helped James take cigarettes to James's car. Defendant denied telling Gebert he had "ripped" off the office or Patel, or that Patel would not say anything. Defendant told James he "had to down" Patel and had woken up because Patel was hitting him in the face, and he might have told James that he had had to "off" Patel. James drove defendant to defendant's mother's house, where defendant found he had a chest wound. Defendant went to Oregon several days later to avoid capture. He testified that he told Wingo he had nothing to do with Patel's killing, and denied telling Wingo that Patel attacked him or had a knife. Defendant was about six foot, one inch tall, and Patel was about five foot, six inches tall.

The prosecutor gave an argument before the jury instructions were read, but defendant chose not to argue. The prosecutor argued Patel was a nice man and there was no reason for him to attack defendant--a much larger man--with whom he had a cordial conversation earlier that day. The prosecutor argued neither self-defense, voluntary intoxication, diminished capacity either due to present intoxication or to prolonged drug use, nor heat of passion or sudden quarrel, applied to reduce the crime from murder.³ Defendant could have fled after he got the knife from Patel. Even after binding Patel's hands and feet, defendant did not call for help. Instead, he went to Gebert's room and sought a ride out of the area. Defendant's detailed testimony refuted any claim of diminished capacity or intoxication; nor did Gebert, a drug user herself, believe defendant was under the influence that morning. Nothing in defendant's testimony established self defense or heat of passion or a sudden quarrel, because although defendant claimed Patel slapped him awake for no reason, defendant continued acting well after Patel was no longer a threat, when any reasonable person would have either left, called the police, or sought help from neighbors. The fact defendant fled showed consciousness of guilt, as did the fact that when he was arrested, he denied any involvement in the killing. Further, defendant committed a similar crime against Cross four days later, taking property from him and tying him with hangers, and also lied to Wingo about that. The Cross incident dramatically undermined the self-defense claim. Defendant's aim was to get money to feed his drug habit. The prosecutor emphasized some wounds were inflicted while Patel was motionless, presumably while hog-tied. The depth, placement, and number, of the wounds showed intent to kill. The prosecutor argued premeditated murder and felony murder, because defendant killed Patel during the commission of a burglary or a robbery.

3 The diminished capacity defense was abolished by statutes in 1981 and the adoption of Proposition 8, the Victim's Bill of Rights, in 1982. (See People v. Avena (1996) 13 Cal.4th 394, 414; People v. Saille (1991) 54 Cal.3d 1103, 1111-1112.) But because Patel's killing predated its abolition, and at defendant's request, the jury herein was instructed on the diminished capacity defense.

As for felony murder, the prosecutor argued defendant lured Patel into the bathroom to begin attacking him, then "got the keys, went into the manager's [area] and the place is ransacked. . . . [H]e killed him. Entered the residence intending to steal, that's burglary . . . . [¶] You could conclude that it was robbery as well if you conclude that the taking of the keys was from the immediate person or presence of Mr. Patel which it appears it was." The keys were of specific value, because defendant could use them to reenter the motel anytime, either to sleep, or to steal.

The jury found defendant guilty as charged--first degree murder and burglary and the special circumstance that the murder was committed during the burglary, and that defendant used a deadly weapon, a knife. (§§ 187, 190.2, subd. (a)(17), 459, 12022, subd. (b).)

At sentencing, the trial court struck the burglary-murder special circumstance, citing defendant's already lengthy time in prison, mostly on death row.⁴ The court sentenced defendant to 25 years to life plus one year for using the knife, and imposed and stayed (see § 654) a determinate seven-year sentence for the burglary. Defendant timely appealed.

4 Section 1385.1, limiting a trial court's power to strike a special circumstance, was part of Proposition 115, the 1990 Crime Victims Justice Reform Act, a prospective initiative which therefore did not preclude the trial court's sentencing decision in this case. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 297-299, & fn. 17.) We note that Hayes had juvenile robbery (1969) and manslaughter (1972) adjudications, and many felony and misdemeanor convictions, including attempted escape, battery on a guard, and possession of a shank. (§§ 243.1, 4502, subd. (a), 4532, subd. (b).)

DISCUSSION

I

Evidence of Burglary-Murder Special Circumstance

Defendant contends no substantial evidence supports the burglary-murder special circumstance, and the Attorney General defends the point. Preliminarily, we observe that the trial court struck the special circumstance, thus it is no longer a component of defendant's sentence. However, we address the claim on the merits, as resolving it informs the resolution of some of defendant's other claims.

In reviewing a claim of insufficient evidence, we review the whole record in the light most favorable to the judgment to determine whether there is evidence, circumstantial or otherwise, that is reasonable, credible, and of solid value, from which a rational jury could find defendant guilty beyond a reasonable doubt. (See People v. Abilez (2007) 41 Cal.4th 472, 504; Hayes I, supra, 52 Cal.3d at p. 631.)

In Hayes I, our Supreme Court held in part:

"Defendant's argument is based on the erroneous premise that both the felony-murder offense and the special circumstance require proof that the killing occurred during or after the entry into the burglarized premises. A murder is of the first degree if 'committed in the perpetration of, or attempt to perpetrate' any of certain enumerated felonies, one of which is burglary. (§ 189.) Under this provision, a killing is committed in the perpetration of an enumerated felony if the killing and the felony 'are parts of one continuous transaction.' [Citations.] We have indicated that the reach of the felony-murder special circumstance is equally broad. [Citations.] Here, therefore, defendant was guilty of murder in the perpetration of burglary, and the burglary-murder special circumstance was properly found if (1) defendant intended to commit the burglary when he killed Patel, and (2) the killing and the burglary of the motel office and adjoining living quarters were part of one continuous transaction. A rational trier of fact could have so found." (Hayes I, supra, 52 Cal.3d at pp. 631-632, fn. omitted.)

Apart from James's testimony, the evidence on retrial as recounted above was essentially the same as in Hayes I, from which a jury could rationally find defendant killed Patel with the intention to take property from him, the keys, immediately used to enter and take more property from Patel's nearby residence and office.⁵

5 In the reply brief, defendant contends the taking of the keys could not support a robbery theory because they were abandoned in Patel's residence, and therefore defendant did not intend to "permanently deprive" Patel of them, as required for robbery liability. (See People v. Dominquez (1995) 38 Cal.App.4th 410, 418.) But the jury could find defendant first intended to keep them indefinitely, but abandoned them after they served their purpose, or accidentally dropped them in the heat of the moment.

Defendant contends there was no completed entry before the killing, because Patel entered the room defendant was already occupying, and defendant did not enter Patel's rooms until after Patel was killed. A similar claim was rejected in Hayes I, as quoted ante. Defendant tries to distinguish Hayes I, by suggesting the court did not clarify whether it was a burglary or an attempted burglary that supported the special circumstances, and it cannot be known which of those theories was at issue in Hayes I. In his view, absent a completed burglary, the jury could not find the burglary-murder special circumstance to be true.

Although Hayes I discussed the statutory rules of special circumstances liability for both completed and attempted crimes, the court clearly referenced defendant's conviction for a completed burglary: "Here, therefore, defendant was guilty of murder in the perpetration of burglary, and the burglary-murder special circumstance was properly found if (1) defendant intended to commit the burglary when he killed Patel, and (2) the killing and the burglary of the motel office and adjoining living quarters were part of one continuous transaction." (Hayes I, supra, 52 Cal.3d at p. 632, italics added.) Thus, Hayes I was discussing a completed burglary, "part of one continuous transaction," and not an attempted burglary, as to which defendant argues no evidence exists.⁶

6 Defendant contends Hayes I did not explain what special circumstance instructions were given in the first trial, but the record suggests the same instructions were used at the retrial, at defendant's request. In any event, the instruction actually given at the retrial referred to a "burglary," not to an "attempted burglary."

Defendant also claims the People's theory is "not based on the way a burglary-murder is commonly committed" because it is uncommon to lure a victim out of the premises, kill the person, and then enter the premises to steal from the decedent. However, the fact the burglary was atypical does not change the applicable legal principles. The fact that defendant's plan may have been a very bad plan does not make it implausible, as defendant posits.

For burglary murder purposes, the jury had to find the killing occurred "as a result of the commission of the crimes of robbery or burglary and where there was in the mind of the perpetrator the specific intent to commit such crime." Thus, the jury had to find defendant intended to steal as part and parcel of the killing. Generally, "When one kills and then takes substantial property from the victim, a reasonable jury can ordinarily find the killing was for the purpose of taking the property." (People v. Johnson (2015) 60 Cal.4th 966, 988.) That suffices here.

We agree with defendant that to prove felony murder based on a taking (i.e., burglary or robbery), there must be substantial evidence the defendant had a preexisting intent to steal. (See People v. Valdez (2004) 32 Cal.4th 73, 105 ["To prove the robbery-murder special circumstance, the prosecution was required to prove that defendant formed the intent to steal before or while killing the victim"]; People v. Sakarias (2000) 22 Cal.4th 596, 618-620 [also a robbery-murder case].) For purposes of this claim we accept the proposition--although it is contrary to defendant's testimony--that the jury could have found defendant first killed Patel and then realized, perhaps at James's urging, that this left Patel's office and residence unguarded. But that was not the only rational interpretation of the evidence, nor even a particularly strong one, given defendant's own testimony. Given his expensive narcotics addiction, lack of money, lack of remorse, flight, commission of a similar crime against Cross, and lies to Wingo, the jury could rationally conclude defendant formed a plan to kill Patel first and then take any available property (money or cigarettes or both) from him after he was dead and unable to protect his property. Thus, the jury could rationally find that the burglary and murder were part of a continuous course of conduct.

Contrary to defendant's argument on appeal, the absence of James's testimony does not render the evidence insufficient, despite the Hayes II court's characterization of the testimony as a "centerpiece" of the first trial, as quoted ante. The testimony of Gebert, Cross, and Wingo, and other evidence detailed above, coupled with the implausible and tortuous claims defendant made to explain the killing, provide highly persuasive evidence of defendant's guilt. Although defendant speculates at length about what might have happened, such speculation does not detract from the evidence viewed in the light favorable to the jury's verdict. Viewed in the proper light, there was ample evidence supporting the burglary-murder special circumstance.

II

Evidence Supporting Felony Murder Instructions

Defendant contends the felony murder and felony-murder special circumstance instructions were unsupported by the evidence, based on his repeated view that, "By all accounts, the burglary was committed after the killing." He also repeats the view that an attempted burglary was at issue in this case, rather than a burglary.

Our conclusion about the burglary-murder special circumstance (Part I, ante) resolves this contention, because we found there was substantial evidence from which a rational jury could find the killing was committed during the continuous transaction of a burglary. Accordingly, the pendant instructional error claim fails.

Defendant maintains that because Patel was mortally wounded in defendant's sister's room--before defendant actually entered the motel office or Patel's residence--his crime was merely an attempted burglary, citing the general rule that a burglary is complete upon entry. (See, e.g., People v. Wilkins (2013) 56 Cal.4th 333, 346 (Wilkins).) But this rule for simple burglary liability does not trump the continuous transaction doctrine for felony-murder liability. (See People v. Young (2005) 34 Cal.4th 1149, 1175 ["Under the felony-murder rule, a strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction"].)

III

Failure to Instruct on Attempted Burglary

Defendant contends that because the People relied on a theory of attempted burglary, "[t]he jury should have been instructed that the burglary-murder doctrine applies pre-entry only if the victim was killed in the 'attempted commission' of a burglary . . . . Those elements required a specific intent to commit burglary and an 'overt act' directed towards immediate consummation of the burglary." In the reply brief he clarifies that "[b]ecause the killing occurred before entry, the killing was not committed in the commission of burglary," only attempted burglary.

For reasons already stated, the People proved defendant committed a completed burglary and killed during the continuous transaction thereof.

IV

Continuous Transaction Instruction

Defendant contends the trial court had a duty to instruct the jury on the continuous transaction doctrine because it was essential to the case, was supported by the evidence, and was not adequately covered by other instructions. We find no prejudicial error because the point was adequately covered by other instructions.

A. The scope of felony-murder liability

The escape rule provides that a killing that occurs during a robbery will be deemed murder unless it occurs after the robber has reached a place of temporary safety, that is, has eluded pursuers, and is in unchallenged possession of the stolen property. (See People v. Boss (1930) 210 Cal. 245, 250-251.) Thus, although for other reasons a robbery is deemed complete upon "asportation," that is, at the moment of the taking of property by force or fear (see People v. Navarette (2003) 30 Cal.4th 458, 502), for felony murder purposes, a robbery is not deemed complete until the perpetrator has escaped. (See People v. Burney (2009) 47 Cal.4th 203, 246, fn. 13.)

The escape rule--which applies equally to burglary murder cases--both extends felony-murder liability to deaths occurring during a perpetrator's flight and limits liability, because a killing that occurs after the perpetrator reaches a place of temporary safety does not constitute a felony murder. (See Wilkins, supra, 56 Cal.4th at pp. 341, 343-348 [burglary murder; trial court should have given escape instruction].)

The continuous transaction rule is connected with the escape rule. Generally, "There is no requirement of a strict 'causal' [citation] or 'temporal' [citation] relationship between the 'felony' and the 'murder.' All that is demanded is that the two 'are parts of one continuous transaction.' " (People v. Berryman (1993) 6 Cal.4th 1048, 1085, overruled on other grounds, People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Thus, felony-murder liability may be found in the absence of a strict causal or temporal relationship between the underlying felony and the killing so long as it is proven that the crime and the killing were part of one continuous transaction, including flight prior to escape. (See Wilkins, supra, 56 Cal.4th at pp. 340-342.) But "the escape rule establishes the 'outer limits of the "continuous-transaction" theory.' " (Id. at p. 345.)⁷

7 Although robbery and the robbery-murder special circumstance charges were dismissed before retrial, the People were permitted to argue felony murder based either on the commission of a robbery or a burglary. The escape rule applies to burglary (People v. Fuller (1978) 86 Cal.App.3d 618, 623-624), as does the continuous transaction rule (People v. Bodely (1995) 32 Cal.App.4th 311, 313-314). Thus, both are components of the felony-murder rule when the underlying felony is burglary. (See People v. Thongvilay (1998) 62 Cal.App.4th 71, 77.)

Put another way: "The 'escape rule' defines the duration of the underlying felony, in the context of certain ancillary consequences of the felony [citation], by deeming the felony to continue until the felon has reached a place of temporary safety. [Citation.] The continuous-transaction doctrine, on the other hand, defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction." (People v. Cavitt (2004) 33 Cal.4th 187, 208 (Cavitt).)

B. CALCRIM No. 549

The instruction defendant argues should have been given by the court, even absent a request, was former CALCRIM No. 549, which provided as follows:

" 'In order for the People to prove that defendant is guilty of murder under a theory of felony murder, the People must prove that the burglary and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time in more than one location. In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: [¶] 1. Whether the felony and the fatal act occurred at the same place. [¶] 2. The time period, if any, between the felony and the fatal act. [¶] 3. Whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony. [¶] 4. Whether the fatal act occurred after the felony but while the perpetrator continued to exercise control over the person who was the target of the felony. [¶] 5. Whether the fatal act occurred while the perpetrator was fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime. [¶] 6. Whether the felony was the direct cause of death. [¶] And [¶] 7. Whether the death was a natural and probable consequence of the felony. [¶] It is not required that the People prove any of these factors or any particular combination of these factors. The factors are give[n to] assist you in deciding whether the fatal act and the felony were part of one continuous transaction.' " (Revoked CALCRIM No. 549, as quoted in Wilkins, supra, 56 Cal.4th at p. 349.)

Former CALCRIM No. 549 was included in the first CALCRIM set, effective January 2006, based on Cavitt, supra, 33 Cal.4th 187, which involved the felony-murder liability of non-killers.⁸ (Bench Notes to CALCRIM No. 549 (Jan. 2006) pp. 254-255.) CALCRIM No. 549 was revoked in 2013, after Wilkins was decided and before defendant's retrial, a point defendant relegates to a footnote in his reply brief. The point was thereafter to be covered by an optional part of CALCRIM No. 540A, as described in the relevant CALCRIM volume as follows:

8 In Cavitt, two men planned to tie up the victim and steal from her, however, a third person may have killed her for independent reasons, after "after defendants had escaped and reached a place of temporary safety." (Cavitt, supra, 33 Cal.4th at p. 193.)

"There is no sua sponte duty to clarify the logical nexus between the felony and the homicidal act. If an issue about the logical nexus requirement arises the court may give the following language: [¶ There must be a logical connection between the cause of death and the [underlying felony]. The connection between the cause of death and the [underlying felony] must involve more than just their occurrence at the same time and place." (Bench Notes to CALCRIM No. 540A (Aug. 2013 rev.) pp. 263-264.)

Therefore, because CALCRIM No. 549 did not exist at the time of defendant's retrial, and because the CALCRIM committee deemed the replacement language to be optional and not subject to a sua sponte duty on the part of trial courts, it is difficult to see how the trial court erred by not giving such an instruction absent request. In fact, defendant asked that the same CALJIC instructions used at the first trial be re-used. He never asked for clarification of the point now raised.

Further, such an instruction would have made no difference in this case. The jury was instructed (CALJIC No. 8.21) that "[t]he unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a result of the commission of the crimes of robbery or burglary and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first-degree. [¶] The specific intent to commit the robbery and/or burglary and the commission of such crimes must be proved beyond a reasonable doubt." (Italics added.) Thus, as far as felony murder was concerned, the jury had to find defendant had "in [his] mind . . . the specific intent to commit" robbery or burglary and the killing occurred "as a result" of one of those crimes. The theory defendant posits on appeal, that he first killed Patel, and then formed the intent to take his property, is incompatible with this instruction.

Separately the jury was instructed (CALJIC No. 8.81.17) that in order to find the burglary-murder special circumstance true "it must be proved: [¶] 1. That the murder was committed while the defendant was engaged in the commission of a burglary; [¶] 2. The murder was committed in order to carry out or advance the commission of the crime of burglary or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the burglary was merely incidental to the commission of the murder." (Italics added.) By returning a true finding on the special circumstance the jury necessarily rejected the idea that the burglary was "merely incidental" to the murder.

In Hayes I, our Supreme Court rejected an analogous claim as follows:

"As discussed above, defendant requested a special instruction stating that if he did not form the intent to steal until after he had struck the fatal blow, he was not guilty of first degree felony murder in the commission of a robbery. He also argues that the trial court should on its own motion have given a similar instruction stating that he was not guilty of felony murder in the commission of burglary if the intent to steal was formed after the fatal blow had been struck.

"As we have seen, the instructions given in regard to the offenses of robbery and felony murder in the commission of robbery or burglary [citation] adequately instructed the jury on the issue of after-formed intent as to the offense of robbery. In particular, the felony-murder instruction stated that a killing was murder of the first degree if it occurred 'as a result of the commission of the crimes of robbery and burglary and where there was in the mind of the perpetrator the specific intent to commit such crime.' (Italics added.) A reasonable juror would necessarily understand from this instruction that defendant was guilty of robbery-murder only if the intent to steal was formed before the fatal blow was struck. We likewise conclude that this same felony-murder instruction, in conjunction with the instruction defining burglary, adequately informed the jury that defendant was guilty of burglary-murder only if the intent to steal was formed before the fatal blow was struck." (Hayes I, supra, 52 Cal.3d at pp. 629-630, fn. omitted; see also People v. Hendricks (1988) 44 Cal.3d 635, 642-643.)

Defendant's second jury was given the same instructions as the first regarding felony murder and burglary; therefore we must conclude the instructions "adequately informed the jury that defendant was guilty of burglary-murder only if the intent to steal was formed before the fatal blow was struck." (Hayes I, supra, 52 Cal.3d at p. 630.)

Defendant nonetheless insists the jury may have been misled and wrongly concluded that it could find felony-murder liability if it found defendant stabbed Patel, saw his keys, and then and only then formed the intention to steal. We disagree that the instructions given would have misled the jury on this point.

First, if a continuous transaction instruction had been given, it would not directly have covered the point appellate counsel now emphasizes. Instead, it would have told the jury: "There must be a logical connection between the cause of death and the burglary or robbery. The connection between the cause of death and the burglary or robbery must involve more than just their occurrence at the same time and place." (Bench Notes to CALCRIM No. 540A (Aug. 2013 rev.) pp. 263-264.) That says little about the formation of intent between the time of the fatal blows and the moment of death. And the revoked instruction, former CALCRIM No. 549 would simply have outlined factors jury might consider regarding the location, timing, and causal link between the " 'fatal act' " and the underlying felony, to help the jury decide " 'whether the fatal act and the felony were part of one continuous transaction.' " (Revoked CALCRIM No. 549, as quoted in Wilkins, supra, 56 Cal.4th at p. 349.) Again, this instruction, too, would not have resolved the point now posited.

Second, defendant's argument in part hinges on his view that no burglary occurred until defendant entered the motel office, a point we have previously rejected.

Third, defendant in part relies on the prosecutor's argument, noting that "the prosecutor advanced a theory that could support a finding that there was no temporal relationship between the fatal act and the subsequent burglary," arguing that "the stabbing could have occurred for a variety of different reasons [citation] and appellant could have decided to kill Patel to avoid arrest (i.e., to avoid detection) for assault with a deadly weapon. [Citations.] He also argued that while Patel was mortally wounded (but before he died), appellant found the keys to the office while going through Patel's pockets. [Citations.]" (Italics added.)

We disagree. In the first passage cited, the prosecutor did not offer "a variety" of reasons of the killing, but rhetorically suggested that the motive could have been revenge, but immediately added "that doesn't look like it played a role because they were getting along just fine that morning." He instead offered the motive of "[m]oney," something "heroin users need," and discounted the self-defense claim. Although the prosecutor argued defendant "had to kill him because Patel could identify him," that was not an argument that defendant's motive was to eliminate a witness to an assault with a deadly weapon, it was part of the argument that defendant wanted to get away with the burglary, which required killing Patel, "whereas with Cross, he didn't have to kill Cross because there's no indication that Cross knew him." Defendant's last point, that he may have found the keys to the office by rifling Patel's pockets before Patel died, is irrelevant. In the passages cited the prosecutor argued defendant's intent was to burglarize Patel's office. Thus, under the prosecutor's argument, defendant killed as part and parcel of a burglary.

Defendant also disputes the view that the moment of intent was not at issue. He makes an analogous claim regarding the special-circumstance instruction, CALJIC No. 8.81.17, which uses the term "murder," which defendant similarly argues refers to actual death, not a mortal wounding. We agree that if the jury believed defendant's testimony that the only taking occurred when James urged him to take cartons of cigarettes after entry into the motel office, while Patel lay dead or dying on the floor of room 15, it could not have properly found him guilty of felony murder. But had the jury believed him in that regard, it would not have found he attacked Patel with the intent to steal, but rather engaged in an "incidental" taking as the special-circumstance instruction provided. Nor would the jury have found that he killed "as a result of the commission of the crimes of robbery or burglary," as the felony-murder instruction provided. (Italics added.)

In faulting the pattern instructions for using "killing" and "murder" instead of "fatal act," in large part appellate counsel relies on People v. McDonald (2015) 238 Cal.App.4th 16. However, McDonald involved the possible liability of a so-called "late-joiner" aider. In McDonald, the perpetrator hurt the victim while taking her jewelry, and then ran off. Very shortly thereafter, McDonald picked the perpetrator up in his car and drove them away (i.e., towards a place of safety, still within the definition of "robbery" for felony-murder purposes). However, the victim did not die for about an hour, long after McDonald picked up the perpetrator and drove him away. (Id. at p. 19.) One question was whether McDonald formed the intent to aid the perpetrator before the taking itself, but because the instructions given included the escape rule, they allowed the jury to find McDonald guilty of murder even if he did not form the intent to aid the perpetrator until after the injury was inflicted but before the victim died. (Id. at pp. 19, 20-27.) But if McDonald's intent was formed after the taking itself, he would be guilty as an accomplice to the robbery, not guilty of felony murder, under an exception to the general felony-murder rule pertaining to aiders. (Id. at pp. 24-25; see People v. Pulido (1997) 15 Cal.4th 713, 716 [if aider forms intent to help perpetrator after a robbery, she or he is not liable for murder committed during the robbery].) The trial court should have modified an instruction so the jury would have found felony-murder liability if and only if it found McDonald intended to commit or aided in the robbery before or at the time that the perpetrator caused the death. (McDonald, at pp. 22-23, 25-26.)

But an aiding theory is not presented by this case, and therefore the Pulido rule has no direct relevance. Further, McDonald accurately states the general rule in other cases, that "what matters for purposes of felony-murder liability has always been the time of commission of the acts that resulted in the victim's death, even if death did not immediately result." (People v. McDonald, supra, 238 Cal.App.4th at p. 25.) The instructions in this case would not mislead the jury as did the instructions in McDonald.

Pulido held that the pattern robbery-murder special circumstance instruction given therein (CALJIC No. 8.80.1) necessarily resolved the issue of the timing of the aider's intent, by requiring the jury to find the aider was engaged in a robbery at the time of the killing. (People v. Pulido, supra, 15 Cal.4th 726-727; see People v. Hill (2015) 236 Cal.App.4th 1100, 1115-1122.) Specifically, "the jury was directed to determine whether or not 'the murder was committed while the defendant was engaged or was an accomplice in' robbery, attempted robbery or the immediate flight from a robbery. (Italics added.) In the special circumstance verdict, consistent with this instruction, the jury found 'that the said defendant . . . engaged in or was an accomplice in the commission of or attempted commission of robbery during the commission of crime charged in count 1 [murder].' (Italics added.)" (Pulido, at p. 727.) In this case, the jury was instructed with CALJIC No. 8.81.17, that in order to find the special circumstance true it had to find "1. That the murder was committed while the defendant was engaged in the commission of a burglary; [¶] 2. The murder was committed in order to carry out or advance the commission of the crime of burglary or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the burglary was merely incidental to the commission of the murder." (Italics added.) Although the language of the two instructions differs, in this case a rational jury, by finding the special circumstance true, necessarily found defendant was "engaged" in the underlying crime of burglary when he stabbed Patel, even if Patel did not actually die for up to another 15 minutes.

In this connection, we again observe that defendant's claim about after-formed intent was rejected by Hayes I. (Hayes I, supra, 52 Cal.3d at pp. 629-630; see People v. Hendricks, supra, 44 Cal.3d at pp. 642-643.) Hayes I found the pattern instructions adequately explained the question of after-formed intent by requiring that the jury find a killing was first-degree murder "if it occurred 'as a result of the commission of the crimes of robbery and burglary and where there was in the mind of the perpetrator the specific intent to commit such crime.' (Italics added.) A reasonable juror would necessarily understand from this instruction that defendant was guilty of robbery-murder only if the intent to steal was formed before the fatal blow was struck. We likewise conclude that this same felony-murder instruction, in conjunction with the instruction defining burglary, adequately informed the jury that defendant was guilty of burglary- murder only if the intent to steal was formed before the fatal blow was struck." (Hayes I, supra, 52 Cal.3d at pp. 629-630, fn. omitted, second italics added.)

In sum, if defendant wanted to parse the issue of exactly when he formed the intent to steal, he should have requested a clarifying instruction. "Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party as requested appropriate clarifying or amplifying language." (People v. Andrews (1989) 49 Cal.3d 200, 218; see People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan).) Defendant's failure to request a special instruction forfeits this subpart of his claims about a continuous transaction instruction.

V

Concurrence of Act and Intent Instructions

Defendant next contends the trial court prejudicially misinstructed on the need for the jury to find a concurrence of act and intent, both for felony murder and for the felony-murder special circumstance. We disagree with these claims.

Defendant concedes the pattern instruction on concurrence of act and intent (CALJIC No. 3.31) informed the jury that the specific intent was provided by the definitions of the crimes charged, and that as for murder as charged in count I, the specific intent was to unlawfully kill with malice aforethought. But he argues that "any mention" of the specific intent required for first degree felony murder and the corresponding special circumstance was "[c]onspicuously absent," thus eliminating the requirement of a concurrence of act and specific intent for both first degree felony murder and the felony murder special circumstance. We disagree with this view.

"In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. [Citations.] We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given." (People v. Vang (2009) 171 Cal.App.4th 1120, 1129, italics added.)

First, CALJIC No. 3.31, as given in this case, provided as follows: "In the crimes charged in counts I and II of the information, namely, murder and burglary, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed. [¶] The specific intent required is included in the definitions of the crimes charged. [¶] The crime of burglary requires the specific intent to steal, take away the personal property of another of any value with the further specific intent to deprive the owner permanently of such property. The crime of murder requires the specific intent unlawfully to kill a human being with malice aforethought."

Later, burglary was defined (CALJIC No. 14.50), and one element the jury was instructed to find was that "at the time of the entry, such person had the specific intent to steal and take away someone else's property, and intended to deprive the owner permanently of such property." Robbery was also defined (CALJIC No. 9.10), including the element that "property was taken with the specific intent permanently to deprive" the victim of such property. Murder was defined (CALJIC No. 8.10) and required that the killing "was done with malice aforethought or occurred during the commission or attempted commission of burglary or robbery." (Italics added)

Felony murder was then defined in part as follows (CALJIC No. 8.21): "The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a result of the commission of the crimes of robbery or burglary and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first-degree." (Italics added.)

The burglary-murder special circumstance instructions (CALJIC Nos. 8.80, 8.81.17) required the jury to find "the murder was committed while the defendant was engaged in the commission of or the immediate flight after the commission of burglary and "was committed in order to carry out or advance the commission of the crime of burglary or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance . . . is not established if the burglary was merely incidental to the commission of the murder."⁹ (Italics added.)

9 We note that a special circumstance allegation is not a "crime" covered by CALJIC No. 3.31. (People v. Alvarez (1996) 14 Cal.4th 155, 220-221.

Reading all of these instructions together, we reject defendant's view that the jury would have been confused about the intent required for felony murder or the felony-murder special circumstance. The fact that CALJIC No. 3.31 itself did not contain all of the relevant definitions was not prejudicial, because the jury was later told what specific intent was required to find a burglary or robbery occurred, and would have imported that element into its consideration whether felony murder occurred. The burglary-murder special circumstance, too, referenced the term "burglary," for which the specific intent was elsewhere defined. The felony murder and felony-murder special circumstance instructions included the specific intents required to be found.

Apart from the general legal presumption that jurors correlate instructions, the trial court gave the jurors CALJIC No. 101, instructing them "to consider all the instructions as a whole and . . . to regard each in the light of all the others. The order in which the instructions are given has no significance as to [their] relative importance." There is no reason to think CALJIC No. 3.31 would have signaled to the jurors to disregard definitions of intent given by other instructions, as defendant speculates. Instead, they would understand what intent was required for which crime or the special circumstance. (See People v. Alvarez, supra, 14 Cal.4th at pp. 219-221.)

Contrary to defendant's view, People v. Friend (2009) 47 Cal.4th 1 does not support his claim. There the jury was instructed that the mental state for murder " 'is to harbor malice aforethought, except in Felony-Murder, where the law imputes malice to a person who kills in perpetration of robbery or an attempt to perpetrate a robbery.' " (Id. at p. 49) Friend contended this improperly "explained what felony murder is not, instead of defining what it is." (Ibid.) But Friend held that other instructions correctly defined first degree felony murder, and therefore the jury was adequately instructed on specific intent. (Ibid.) So, too, here: The instructions, taken as a whole, adequately informed the jurors as to the required concurrence of act and intent.

Defendant also argues the felony murder instruction was incomplete because it failed to tell the jurors that a burglary is not completed until entry occurs, and the killing here occurred before defendant entered Patel's office and residence. This is an iteration of a claim we have already rejected earlier. (See Part II, ante, see also People v. Hughes (2002) 27 Cal.4th 287, 360 ["Reading CALJIC Nos. 8.21 and 9.40 together with No. 3.31, we believe that a reasonable juror would understand that defendant had to possess the specific intent to steal prior to or during his application of the force required for the commission of the offense of robbery"].)

Defendant also claims the jury should have been instructed about the difference between a "fatal act" and a "killing," because it might have found Patel was still alive in room 15 before defendant entered Patel's office or residence. We already have already rejected this view as well. (See Part IV-B, ante.)

Accordingly, we reject defendant's claims based on CALJIC No. 3.31.

VI

Exclusion of Prior Misconduct and the Nature of the Prior Proceeding

Defendant next argues the trial court should have permitted introduction of evidence of prosecutorial misconduct at the first trial, and improperly instructed the jury that prior testimony of witnesses came from a "hearing" rather than a prior trial. We disagree with these partly related claims.

A. Evidence of Purported Prior Misconduct

James died before the retrial, and he was one of a number of witnesses the trial court ruled were unavailable and whose prior testimony could be admitted. However, his testimony was not introduced, accordingly, evidence about his purported inducements to testify at the first trial were excluded. Defendant contends this was error. We do not agree.

Before trial, the trial court ruled that if the prosecutor introduced James's prior testimony, it would instruct the jury that there had been a deal about pending charges reached between James's attorney and the prosecutor at the time, and this information was withheld both from James and from defendant's former attorney, who therefore had had no opportunity to cross-examine James about it. Defendant considered proposing an instruction on the point but did not do so. Later, the trial court directed defendant not to raise any issues before the jury about the Ninth Circuit's decision (i.e., Hayes II). Defendant strongly protested this ruling, and then chose to absent himself from the trial.

As the trial court stated before trial: "[T]he fact that a Deputy District Attorney may have lied to the court 30 some years ago has no relevance with regard to the facts as to what occurred on January 1st [i.e., the date of the killing], other than as it would relate to former testimony of Mr. James." And when denying defendant's new trial motion, the trial court emphasized: "The prosecutor's misconduct . . . related to the testimony of only one witness, Andrew James. Eliminating the testimony (read-back of former testimony) of Mr. James made the prosecutor's misconduct immaterial to [defendant's] guilt or innocence. [Defendant] merely speculates that Michelle Gebert knew of the promise made to Mr. James['s] attorney. Speculation is not a basis upon which to grant a new trial." (Italics added.)

We agree with the trial court. Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant if and only if it has a tendency in reason to prove or disprove a material disputed fact. (Id., § 210.) Once it was determined that James's testimony would not be introduced, whatever the former prosecutor did or did not do at the first trial was irrelevant and inadmissible because it would be of no help to this jury in performing its task of determining what defendant did or did not do on January 1, 1980.

Defendant speculates that Gebert knew about the deal because she and James were in a relationship, and she had a motive to be a prosecution witness to reduce the chances James would be prosecuted. But speculation is not evidence; there is no evidence that Gebert knew anything about James's "deal"; indeed, given that James did not know about it at the time of the first trial, it is difficult to imagine how Gebert--who did not testify at the retrial, but whose testimony from the first trial was read into the record--could have known about it at the time of the first trial.

Defendant also speculates that the entire "prosecution team" was tainted, but there is no evidence supporting his claim that the prosecutor who retried the case, or Detective Wingo, or the pathologist, or any other prosecution witness, was involved in the alleged prosecutorial misconduct. In short, the Hayes II opinion arose from a particular set of facts adduced at the hearing in federal court, and did not implicate the truth or falsity of the issues the jury was asked to decide on retrial. It was irrelevant to the retrial and properly excluded.

B. Instructions on a Prior "Hearing"

After the prosecutor completed his argument, the trial court read "Special Instruction #4" to the jury as follows:

"[T]here has been a prior hearing in this matter, what happened or didn't happen at that prior hearing is not relevant and you are not to speculate as to what might have happened at the prior hearing. This trial is a hearing which involves facts that happened in 1980, and at a prior hearing there were some witnesses who testified and those witnesses are no longer available and you have heard their testimony through their recorded transcripts. But again, you are not to speculate as to what might have been the nature of the hearing, what might have happened as a result of the hearing, none of that is relevant to any issue you have to decide in this case."

Later, the trial court instructed the jury (CALJIC No. 2.12) that "[t]estimony given by a witness at a prior proceeding who was unavailable at this trial has been read to you from the reporter's transcript of that proceeding. You must consider that testimony as if it had been given before you in this trial." The court also instructed on witness credibility, CALJIC No. 2.20.

There is no record that defendant objected to this instruction. Nor do we see in what manner it was inaccurate or deficient on its face, given our conclusion that the trial court correctly ruled that the reasons for the reversal and retrial were not relevant.¹⁰ Although before his second trial defendant made clear that he wanted the new jury to learn a prior judgment had been vacated because of misconduct, and that he was not responsible for the delay in the case, those facts were not relevant to any issue the new jury was asked to decide. Although defendant protests the lack of "context" on appeal, as we have explained, the context of James's undisclosed deal was not relevant given that the second jury never heard his testimony.

10 One stray reference to a prior "trial" inadvertently occurred, to which no objection was interposed.

Finally, defendant points out that Gebert had been a prosecution witness, and argues the fact the second jury did not learn this would or likely would have caused the jurors to view her testimony differently. The second jury was read the transcript of her testimony, which began: "Michelle Gebert, a witness called on behalf of the People, having been duly and regularly sworn, testified as follows." (Italics added.) Therefore, the jurors on retrial knew she was a prosecution witness.

We find no error in instructing the jury that a prior "hearing" took place.

VII

Alleged Prosecutorial Misconduct at the Retrial

Defendant contends Thomas Testa, the prosecutor at the retrial, committed misconduct during closing argument by misleading the jury. Testa in part argued the jury should reject defendant's self-defense claim because if defendant had really been attacked by Patel, he would have told Gebert about it as soon as he arrived at her apartment and waited for James to give him a ride away from the scene. Defendant argues that Testa made a knowingly false or misleading statement because he knew James had testified at the first trial that in the car after leaving the motel, defendant told James that Patel had swung at him.

First, defendant did not object at trial and arguably has forfeited the claim. (See People v. Carter (2005) 36 Cal.4th 1114, 1204; cf. People v. Bittaker (1989) 48 Cal.3d 1046, 1105 [no forfeiture; "The trial court had previously refused to permit that information to go before the jury, and it is unlikely that an objection during closing argument would have changed that ruling"].) Second, as we will explain, the serious claim that Testa committed professional misconduct lacks merit.

Defendant's testimony included his claim that he told James he had woken up because Patel was hitting him in the face, and had to "down" or "off" him. Testa argued the jury should not believe defendant's testimony because it was not corroborated by Gebert; all she heard defendant say was that he needed her to wake James up to give him a ride, that he had stolen from Patel, and that he was not worried that Patel would say anything to the police, hardly the comments expected of a person who had just been attacked and had defended himself.

True, there had been evidence James heard defendant report that Patel attacked him in the first trial. (See Hayes I, supra, 52 Cal.3d at p. 598; Hayes II, supra, 399 F.3d at p. 976.) But that evidence was not presented at this trial. Nor did it establish some objectively verified fact proving that defendant had promptly reported Patel's alleged attack, it was merely evidence that might be believed or disbelieved. This is not like cases where a prosecutor lies about or misstates an objective fact known to the prosecutor. (Cf. Miller v. Pate (1967) 386 U.S. 1, 6-7 [17 L.Ed.2d 690, 694]; People v. Morrison (2004) 34 Cal.4th 698, 716-717.)

For example, in People v. Varona (1983) 143 Cal.App.3d 566, the prosecutor knew a complainant in a forcible sex case had a prostitution conviction, was on probation for that conviction at the time of the alleged crimes, was known to ply her trade in the area of the alleged crimes, and was known to commit the particular sex acts in question, but Varona held that evidence had been improperly excluded at trial. (Id. at pp. 568, 569-570.) The defense had been that the acts complained of were consensual, but then the complainant became upset when she was not paid as had been agreed. (Id. at p. 568.) In Varona, "the prosecutor not only argued the 'lack' of evidence where the defense was ready and willing to produce it, but he compounded that tactic by actually arguing that the woman was not a prostitute although he had seen the official records and knew that he was arguing a falsehood. The whole argument went beyond the bounds of any acceptable conduct." (Id. at p. 570, italics added.)

This case is unlike Varona and similar cases cited by defendant. A prosecutor is not required to believe all witnesses, not even all prosecution witnesses. Specifically, Testa was not required to believe James's testimony in the first trial, and therefore he was not barred from arguing--accurately--that the record before this jury on retrial contained no evidence that defendant made a pretrial report to Gebert--or Wingo, or anybody else for that matter--that Patel had attacked defendant as he slept. James's testimony did not equate to an objective fact, like the evidence in Varona and similar cases.

Accordingly, we find Testa did not commit prosecutorial misconduct as alleged.

VIII

Counsel Issues

Counsel Richard Such represented defendant on his first appeal, but was removed from representing him on retrial based on a trial court finding (per Hastings, J.) that he lacked competence to handle a death penalty trial. Such continued to participate in various ways despite court orders not to do so, and ultimately was permitted to act as defendant's retained (pro bono) counsel for purposes of a new trial motion and sentencing. Defendant claims Such's removal as defendant's counsel was erroneous for various reasons, as were the various trial courts' repeated refusals to reinstate him.

A. General Background

Such represented defendant for many years in his appeal in Hayes I, and, with other counsel, represented him in the federal proceedings leading to Hayes II. On remand, over time, a number of attorneys were appointed for defendant and then relieved for various reasons.

In June 2005, Such was appointed as second counsel in what was then still a death penalty case. (See Keenan v. Superior Court (1982) 31 Cal.3d 424, 434 [a capital defendant may be entitled to a second appointed counsel] (Keenan).) In September 2005, he was appointed as lead counsel although he did not meet required qualifications, based on discretionary findings by the trial court (Hastings, J.), including that Such had a unique relationship to the case and that defendant reposed special confidence in him. (See Harris v. Superior Court (1977) 19 Cal.3d 786, 795-799 [although an indigent defendant cannot select appointed counsel, a trial court must consider whether a defendant's preferred attorney has an existing relationship of confidence and trust with the defendant, or a special understanding of the case, or both] (Harris).)

In 2006, Such filed an unsuccessful motion for co-counsel, and then filed a motion for a continuance, in part citing his medical condition as making it impossible to go to trial without co-counsel. By writ of mandate, we directed the trial court to reconsider the application for the reasons described in the sealed portion of the petition; our remittitur issued in January 2008.

In December 2007, attorney William Locke moved to be appointed as counsel, citing his extensive criminal jury trial experience, including as lead counsel in four cases that began as capital cases. On December 10, 2007, Judge Hastings held a hearing described in the minutes as one "to show cause why [Such] should either be removed as [counsel] of record or in the alternative whether or not he should remain as the appointed counsel of record as the solo counsel or whether he should remain as lead counsel & Keenan counsel should be appointed." At the hearing, Judge Hastings stated that Such did not "come close" to meeting the qualifications for appointment, even apart from his medical issues.

Following our remittitur, Judge Hastings found Such was unable to continue as lead counsel, in part based on Such's admission that he was "unqualified and incompetent to defend a capital defendant in a jury trial; his repeated demonstration he is unqualified based upon unreasonable and unnecessary investigation plans and unreasonable proposed trial tactics; his personal issues with an overburdened appellate case load and his medical condition which might become aggravated because of the stress associated with a capital jury trial and possibly necessitate trial delays or even a mistrial. [¶] On numerous occasions in support of his request for second counsel, Mr. Such has admitted he lacks the qualifications and experience needed to prepare a capital case for jury trial. Other than reviewing the work of trial attorneys in two death penalty appeals and preparing legal arguments on appeal, he . . . has no experience in actually preparing a presenting a penalty phase defense to a jury. [¶] With the exception of a competency jury trial, Mr. Such has not tried a criminal jury trial for over twenty years. His practice is limited to a criminal appellate specialization. By his own admission, he is not qualified and no experience in examining . . . forensic expert witnesses."

Judge Hastings also explained in some detail what he viewed as irrational tactical routes Such was exploring. For example, Such planned to argue defendant used wire to defend himself from an intoxicated Cross, despite the fact that defendant had been convicted "by plea of robbery and assault with a deadly weapon with an admission of enhancements of personal use of a firearm and infliction of great bodily injury in the Cross incident." Further, in Hayes I, Such had alleged counsel at the first trial was incompetent for not attacking Cross on the basis of intoxication, and our Supreme Court held the was "pure speculation " and "to suggest Mr. Cross provoked defendant would not only be implausible but would also serve to antagonize the jury." Similarly, Such wanted to relitigate defendant's guilt on escape and related charges (assaulting a correctional officer and possessing a shank), even though defendant had pleaded guilty, thus conclusively admitting guilt. Finally, "the court has considered the brief medical opinions and concludes that Mr. Such is not medically fit to withstand the stress associated with a capital jury trial either alone or with a second counsel." (Italics added.)

Accordingly, Such was discharged, and the trial court reset the next hearing far enough out for Such to pursue appellate relief from the removal order. (See People v. Noriega (2010) 48 Cal.4th 517, 525, fn. 1.) However, Such did not seek any such relief, and we note that defendant's motion for a new trial based on this discharge order was denied both on the merits and because defendant had had the opportunity to challenge the order but did not do so.

After several attorneys had been appointed to represent him, defendant ultimately exercised his right to self-representation on October 14, 2008.

In June 2009, defendant filed a motion to reappoint Such as Harris counsel, but stated he did not want give up his right to self-representation if the motion were denied. In a handwritten portion, defendant suggested that Such could be appointed as advisory counsel. Judge John T. Ball denied the motion in July 2009, and defendant did not challenge that ruling.

The People dropped the death penalty in April 2013. At a May 2013 trial setting conference, after Judge Lacy took over the case and appointed a defense investigator, defendant confirmed he did not want counsel. But in June 2013, defendant moved to reinstate Such as counsel. Defendant emphasized he was not making a general request for counsel, he only wanted Such or to remain self-represented. The motion, inter alia, alleged pervasive conflicts of interest in the local criminal lawyer referral service making it impossible to provide "unbiased" counsel, purported to challenge Judge Hastings's 2008 order, and made allegations of impropriety about the District Attorney's office and various judges appointed to hear the case.

Judge Lacy reviewed a 2011 letter defendant wrote to Judge Ball, and the transcript of the hearing held before Judge Ball in April 2011. Defendant made allegations against Such described in the new trial ruling as such that "there never could be a Harris relationship again from which Mr. Such should be appointed." Defendant had explained that he wanted a court order to stop Such from continuing to "interfere"--defendant's word--with the case. After Judge Ball read a sealed letter defendant wrote, he stated he was surprised at the claims of misconduct against Such. Judge Ball later ruled Such was "permanently disqualified from representing [defendant] in these proceedings."¹¹

11 An April 6, 2011, letter in the record from defendant to Judge Ball accuses Such of having an "emotional attachment and unhealthy obsession" with the case, in which he "has refused to help unless [it is] related to his re-appointment as counsel or his personal interest." Defendant's purpose in writing was "to inform the court of Mr. Such's [efforts] to exploit and manipulate everyone, including the court, and to ask the court for sufficient time to overcome and dispel Mr. Such's delusion and to prepare the only viable defense that is available."

Judge Lacy denied the June 2013 motion to "reinstate" Such but agreed to consider defendant's motion to appoint new counsel, with Such as a possible candidate. In July 2013, Judge Lacy reiterated that he would not reinstate Such, and then set forth reasons for not appointing Such as counsel, including the reasons given by Judge Hastings in his ruling removing Such in 2008, and defendant's claim to Judge Ball in 2011 that Such was interfering with the case. Judge Lacy also referenced a document defendant filed in August 2011, seeking a "cease and desist" order against Such, which attached exhibits containing defendant's complaints about Such that were "so strong, impassioned and detailed" that Judge Lacy doubted Such could have survived a Marsden motion (see People v. Marsden (1970) 2 Cal.3d 118), had one had been made. Judge Ball had indeed issued a cease and desist order in September 2011. He discussed reporting Such to the State Bar after learning Such was continuing to act in the case, which he found "surprising, shocking, and totally inappropriate." Defendant requested a cease and desist order against Such, but did not want him reported to the State Bar, and Judge Ball acquiesced. Judge Lacy denied the motion to appoint Such. Defendant refused an offer of other counsel, including "advisory and or stand-by counsel" and continued to be self-represented.

In October 2013, Judge Lacy stated defendant "has chosen to represent himself after many offers by the court to appoint an attorney to represent him, as his attorney, as advisory counsel, as standby counsel. The court denied his request to have Mr. Such reinstated. Mr. Hayes stated he wishes to represent himself." An October 24, 2013 minute order suggests Judge Lacy again offered defendant a particular attorney "in some capacity," but defendant refused. Judge Lacy's new trial ruling in part found, "Had any error been made in 2009 in refusing to appoint advisory counsel, that error was cured by the Court's offers in 2013."

B. Claims and Analysis

We make a preliminary observation before addressing defendant's claims. In some instances judges ruling on later motions in this case examined or referenced earlier rulings by other judges. Although one trial judge cannot overrule the prior decision of another trial judge (see In re Alberto (2002) 102 Cal.App.4th 421, 427-428), here the successive motions for Such's reinstatement were new motions based on further facts and procedural events. The later judges could consider the facts found and reasons given by prior judges, to provide context for each motion as it arose, for example, to determine if any alleged changed facts were material to the motion then under consideration. To do otherwise would encourage forum shopping. (See People v. Superior Court (Scofield) (1967) 249 Cal.App.2d 727, 734.) In our view, the later judges properly considered the facts and reasoning of prior rulings in determining issues before them.

1. The scope of our remittitur

Defendant contends Judge Hastings's 2008 order removing Such "was in disobedience to the remittitur, and was thus void." But our January 2008 remittitur did not compel Judge Hastings to grant defendant's request for second counsel. We ordered him to "reconsider counsel's application for the appointment of a second attorney for the reason described in the [sealed] petition for writ of mandate." (Italics added.) An order to reconsider is not an order to exercise discretion one way or the other. Once Judge Hastings reconsidered, he found it would be inappropriate to keep Such on "either alone or with a second counsel." Because our remittitur merely required Judge Hastings to reconsider his previous order, we reject defendant's claim that Judge Hastings exceeded the scope of our remittitur, which was not so limited as to preclude consideration of the propriety of maintaining Such as defendant's attorney in any capacity.

2. The ruling by Judge Hastings in 2008

Defendant contends Judge Hastings violated his right to continuation of Such as his appointed counsel in 2008 and separately claims that ruling represented an abuse of discretion. We address these two claims together.

"Counsel may . . . be relieved on the trial court's own motion, over the objection of the defendant or his counsel, 'to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings.' [Citation.] On appeal, a trial court's removal of counsel for an indigent criminal defendant is reviewed for abuse of discretion." (People v. Cole (2004) 33 Cal.4th 1158, 1187, italics added; see People v. Jones (2004) 33 Cal.4th 234, 240.)

Judge Hastings's written decision, discussed ante, adequately supports the conclusion that Such was not competent to handle a death penalty trial, both based on lack of current trial experience and for medical reasons that could well result in further delays in bringing the case to retrial. Those were valid bases on which to remove him.

It is true, as defendant points out, that our Supreme Court has held that "once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained." (Smith v. Superior Court (1968) 68 Cal.2d 547, 562 (Smith).) This case is only superficially like Smith.

In Smith, for a retrial, the defendant was appointed the same attorney who had succeeded in reversing his prior capital conviction on appeal. (Smith, supra, 68 Cal.2d at pp. 549-550.) But as the proceedings leading to a retrial ensued, a judge newly appointed to the case quickly became annoyed at the attorney's courtroom manner, on its own motion questioned the attorney's competence, and then removed him from the case, refusing counsel's request to respond to the accusation, and over the defendant's clear and repeated objections. (Id. at pp. 551-553.) Here, Judge Hastings conducted a hearing on the question of counsel and did not act peremptorily, nor deprive the defense of an opportunity to make its views known. This case is not like Smith.

Defendant points out that every experienced death penalty attorney starts out with her or his first death penalty case. We agree that "if attorneys were not permitted to try death penalty cases unless they had previously tried one such case, the number of attorneys 'competent' to do so would be fixed, and indeed would steadily diminish through the inevitable process of attrition." (Smith, supra, 68 Cal.2d at p. 552, fn. 1.) But this does not mean anyone with a bar card can or should try a capital murder case. Such had not tried anything apart from a competency hearing for 20 years. However polished Such's appellate skills may have been, Judge Hastings could rationally conclude it would be folly to allow him to jump into a capital retrial. This is so even given Such's five murder cases in the 1970's, and one trial that began as a capital case in 1982-1984. It also appeared Such was delaying matters, perhaps not intentionally, but because of his medical condition, lack of experience, and so forth. Under these circumstances, we find no abuse of discretion by Judge Hastings in 2008.

3. The ruling by Judge Ball in 2009

Defendant next contends Judge Ball abused his discretion by denying the 2009 motion to reinstate Such, or to appoint him as advisory counsel.

Defendant's motion by its caption sought reappointment of Such as Harris counsel, and emphasized that defendant was not seeking any other lawyer but Such and would otherwise remain self-represented if the motion were denied. The motion generally faulted the handling of counsel by Judge Hastings, and detailed the long and tortuous history of defendant's various attorneys and investigators to that point and the purported reasons they came and went. It argued Such was not incompetent to try the case and emphasized defendant's trust in him and their established relationship. Defendant also presented the declaration of an experienced attorney who had known Such professionally for many years, and was informed that in the 1970's he had tried five murder cases to juries, then worked for a Court of Appeal justice, and then became a criminal appellate attorney. Another attorney described good trial work Such had done in a complex multi-defendant, multiple-murder capital case, although the date of trial was uncertain. Then-counsel-of-record for defendant, public defender Samuel Behar, declared in part that Such was uniquely qualified because of his intimate knowledge of the prosecutorial misconduct condemned in Hayes II and purported "pattern of misconduct" by the San Joaquin County District Attorney's office. Undated and unsworn excerpts of a document Such purportedly wrote in connection with a motion to disqualify a judge were attached, in which Such states his medical condition is "completely controlled by medication" but even then qualifies this by continuing: "The only possible problem would be exhaustion. But that problem could be avoided by the appointment of second counsel, and such appointment would solve any problem that might arise, because second counsel would be able to take over temporarily for me." Thus, even in this undated document, Such did not dispute he had some medical condition that he anticipated might result in his incapacity, given the rigors of a murder trial.

On June 25, 2009, Judge Ball continued the case, cautioning defendant to consider how he wanted to proceed, and suggesting he accept a qualified attorney as lead counsel, with Such in a subordinate role. Judge Ball emphasized that Such was not competent to represent defendant. Later, Judge Ball issued a minute order stating its intention to follow the rule that a self-represented defendant is not entitled to appointment of Keenan counsel. (See Scott v. Superior Court (1989) 212 Cal.App.3d 505, 509-512.)

At a hearing on July 23, 2009, Judge Ball reiterated that because defendant was self-represented, he was not entitled to Keenan counsel. Defendant replied that what he wanted was "advisory counsel," by which he meant something other than "standby" or Keenan counsel. Judge Ball told him there was no basis to appoint an advisory counsel, only standby counsel, and that he was not going to appoint Such, based on Judge Hastings's prior ruling, from which review was not taken and which Judge Ball viewed as "binding." Judge Ball explained that there were many conflict-free attorneys qualified to represent defendant if he wanted counsel, but defendant refused because he thought no local attorney wanted to handle his case. Ultimately, Judge Ball clarified with defendant that he wanted to remain self-represented "with your understanding that I cannot and will not appoint Mr. Such in any capacity as long as you're representing yourself."

On appeal, defendant contends Judge Ball was wrong to treat Judge Hastings's ruling as "binding," and presents an argument about the limitations of the "law of the case" doctrine and the ability of judges to reconsider matters based on new circumstances. We have already expressed our views on that subject, generally agreeing with defendant's legal point, though not his view of its application in this case. Judge Ball ascertained that what defendant wanted was to remain self-represented and have Such working on the case, other than as mere standby counsel. Judge Ball had said he "cannot and will not" appoint Such, meaning that he both felt bound by Judge Hastings's ruling and declined to appoint Such based on his own powers. After all, he stated on the record he thought Such was not competent, based on the "ruling and the evidence." (Italics added.) Therefore Judge Ball did reconsider the matter anew, despite his comments about the binding nature of the prior ruling.

On the merits, defendant relies heavily on the Harris case in arguing Judge Ball's ruling was an abuse of discretion. We find Harris distinguishable.

Such had not tried any homicide cases for decades, but had become an accomplished criminal appellate attorney. While that reflects a notable achievement, it did not qualify Such to try a capital case. And although the date of the document about his medical condition is uncertain, it confirmed there was a genuine concern he would need a second attorney to take over the case. Defendant's professed trust and confidence in Such weighed in favor of the motion to reinstate, but was not dispositive.

In contrast, in Harris, the defendants were members of the Symbionese Liberation Army, facing life without parole for kidnapping with bodily harm and related charges. (Harris, supra, 19 Cal.3d at pp. 789-790 & fn. 1.) There were two main reasons for appointing particular attorneys; the first was that the attorneys seeking appointment had already represented the defendants in related criminal proceedings and their familiarity with the issues and witnesses "would greatly facilitate their preparation for the instant case" and also provide a " 'continuity of representation' similar to that enjoyed by the prosecution in these circumstances." The second reason was that the defendants and their attorneys had, "[i]n the course of their extended relationship," shared certain "political and social perceptions" such that "a sense of mutual trust and confidence had arisen" between them. "In short, petitioners had come to regard those attorneys as true champions of their cause. To deprive them of this kind of counsel in favor of two 'strangers' in whom they had no such confidence and trust, they argued, would be to deprive them of a true representation of their interests." (Harris, supra, 19 Cal.3d at p. 793; see also id. at pp. 797-798 & fn. 10.)

Our Supreme Court emphasized the general rule that "An indigent defendant's preference for a particular attorney, while it is to be considered by the trial court in making an appointment [citation], is not a determinative factor requiring the appointment of that attorney--even in combination with other relevant factors such as the subject attorney's competence and availability. As we have indicated, the matter rests wholly within the sound discretion of the trial court." (Harris, supra, 19 Cal.3d at pp. 795-796, fn. omitted.) But Harris held that given the unique nature of the case and the extensive relationship between the proposed attorneys and the defendants, including the trial representation by the attorneys of the defendants and the attorneys' extensive trial experience, it was an abuse of discretion to deny their appointment. (Id. at pp. 793, 797-799, fn. 10.)

Harris is distinguishable on several key points. First, defendant, while an accused murderer, is not a member of a group like the Symbionese Liberation Army, such that few attorneys would want to be associated with him. This killing was not political. Second, Such had not represented defendant in prior trial matters, as had the attorneys in Harris, only in appellate and ancillary habeas corpus matters. Third, unlike the attorneys in Harris, Such did not have any current expertise in criminal trial practice.

Particularly given Such's lack of current trial experience and continued concerns about his medical condition, we find no abuse of discretion by Judge Ball. (See, e.g., People v. Sapp (2003) 31 Cal.4th 240, 256 ["Harris acknowledges that a trial court need not appoint [an attorney with a special relationship with the defendant] when there are 'countervailing considerations of comparable weight.' [Citation.] Here, the facts . . . raised serious concerns about [the assigned public defender's] ability to competently represent defendant"]; People v. Panah (2005) 35 Cal.4th 395, 425 ["unlike the attorneys in Harris, Shafi-Nia was so wholly inexperienced in criminal matters that, even in appointing him, Judge Ito made it clear he was to function as 'second counsel' "].)

Finally, defendant contends Judge Ball was wrong in his view that he lacked discretion to appoint advisory counsel. At the first hearing, Judge Ball indicated he understood the principle of advisory counsel, by agreeing with the prosecutor's concern that appointing Such as advisory counsel would allow him to act as a "puppet master" while defendant was supposedly self-represented. At that hearing he stated he would not appoint Such in "any capacity so long as" defendant was self-represented. At the second hearing he did state at one point that "there's no such thing" as advisory counsel, only standby counsel, though he later said "I do not intend to appoint Mr. Such as advisory counsel to you."

We agree with defendant that a trial court does have discretion to appoint advisory counsel for a self-represented defendant. (See People v. Bigelow (1984) 37 Cal.3d 731, 742-743; see People v. Scott, supra, 212 Cal.App.3d at pp. 509-510.) Based on the entirety of the record of the two hearings, the isolated snippets that could be read to suggest Judge Ball was unaware of the discretion to appoint advisory counsel are not persuasive.

But even if Judge Ball did fail to exercise discretion, thereby abusing his discretion (see People v. Orabuena (2004) 116 Cal.App.4th 84, 99), we would find no prejudice for two reasons.

First, Judge Ball repeatedly and clearly stated he would never appoint Such in any capacity, and Such was the only attorney defendant wanted. Second, as Judge Lacy explained in denying defendant's new trial motion, Judge Lacy repeatedly offered defendant advisory counsel, though not Such, and defendant spurned those offers. This confirms he wanted Such and only Such, he did not want advisory counsel generally. But defendant conceded he had no right to choose advisory counsel. Therefore, Judge Lacy's offers of advisory counsel cured any arguable failure to exercise discretion by Judge Ball.

4. The ruling by Judge Lacy in 2013

Defendant contends that once the death penalty was dropped, Judge Lacy abused his discretion by denying the 2013 motion to reinstate Such.

As explained above, Judge Lacy noted, among other factors, that defendant had complained about Such's interference with the case after his removal. On appeal, defendant downplays this, by inferring that because he asked for Such in 2013, "whatever strife there was in 2011 had now been resolved." Judge Lacy was not required to draw that inference, but could well conclude defendant--and possibly Such--was playing games about counsel issues and seeking to further delay the trial. After all, Judge Lacy had concluded the concerns defendant expressed were so severe they would likely have justified a Marsden removal order. Although a penalty phase retrial would no longer be necessary, Such had not tried a murder case for many years.

We agree with the Attorney General that "as the years progressed, it became apparent that [Such's] lack of trial experience, having not tried a criminal case in over 20 years, amongst other things, was threatening not only appellant's rights, but the People's and the court's interest in orderly administration of justice and preventing substantial impairment of court proceedings." The (unchallenged) 2008 order removing Such supports the Attorney General's summation of the reason why Such had been appointed as Harris counsel, namely, the expectation that his knowledge of the case would expedite retrial or settlement of the case. This did not happen, and Such presented as inexperienced, with medical issues, an overburdened appellate caseload, and unreasonable proposed tactics. Even with the death penalty off the table, this was still a special-circumstances murder case, with four theories of liability (premeditation, burglary murder, robbery murder, and lying-in-wait), with added complexities about absent witnesses, other-crimes evidence (Cross), and forensic reconstruction testimony. Judge Lacy could well conclude Such was incapable of handling this particular retrial; indeed, any other conclusion would have been dubious.

The Attorney General points to Such's violations of the "cease and desist" order as further support for Judge Lacy's decision. In his reply brief, even defendant concedes, as he must, that Such became an "officious intermeddler." Clearly, Such was personally embroiled in the case, which further rendered him an inappropriate choice.

Accordingly, for all of the above reasons, we conclude that Judge Lacy had ample grounds to find Such unqualified to represent defendant, even after the People dropped the death penalty and thereby simplified--somewhat--the retrial in this case.

IX

Dismissal for Past Prosecutorial Misconduct

Defendant contends the proper remedy for the prior prosecutorial misconduct should have been dismissal of all of the charges against him, and the retrial offered by the State was an insufficient method of curing the error. We disagree.

Defendant made pretrial motions to dismiss in part based on the prosecutorial misconduct as found in Hayes II, and the purported failure by the People to confess misconduct, resulting in an unjust delay of the retrial. Judge Hastings denied the motions after a hearing, at which Van Oss testified in essence that he had no recollection of making a secret deal as found by the Ninth Circuit. Judge Hastings characterized the hearing he had held as a "de novo" hearing, and found no basis to disbelieve the testimony he heard--both in favor of and against defendant's motion. He concluded the testimony did not reveal conduct requiring dismissal of the case, adding: "He pursued his appellate remedy. He prevailed on his appellate remedy. The Ninth Circuit ordered the case reversed. It is back in the trial court to be retried. If it's not settled, it will be retried."¹²

12 The full transcript of the hearing Judge Hastings held on defendant's motion to dismiss is not in the record on appeal, so it is not known what evidence was given that contradicted or tried to contradict Van Oss's testimony.

After the People dropped the death penalty, defendant filed "motions in limine," filled with various requests and arguing in part that he should be given the remedy of a chance of parole as a sanction for prosecutorial misconduct. Judge Lacy denied this remedy, finding Hayes II imposed a sanction of a "total reversal to retry the case, not even to retry the case without the possibility of a capital sentence. That was something the District Attorney voluntarily determined not to do."

We agree that dismissal was not required.¹³ Hayes II remedied the misconduct it found by vacating defendant's conviction. It did not preclude the People from seeking a new trial, or seeking the death penalty. And Judge Lacy struck the special circumstance, ultimately giving defendant at least part of the relief he sought as a sanction in the trial court. That militates strongly against any further relief on appeal.

13 In the reply brief, defendant contends Judges Hastings and Lacy were bound to accept the findings about what Van Oss did in Hayes II, under principles of res judicata. (See, e.g., In re Crow (1971) 4 Cal.3d 613, 623.) Even if so, Hayes II found Van Oss's conduct prejudiced the first trial. It did not hold his conduct precluded a retrial.

On appeal, defendant characterizes what Van Oss did as both prejudicial and outrageous, or shocking to the conscious of the court (see Rochin v. California (1952) 342 U.S. 165, 172 [96 L.Ed. 183, 190]; People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 450-452 [dismissal for prosecutorial misconduct causing prejudice]), meriting a complete dismissal. But even the Hayes II majority did not think that was the appropriate remedy, inasmuch as it permitted a full capital retrial. Neither do we.

Defendant also contends the alleged failure of Van Oss to confess his errors violated defendant's speedy trial rights, citing cases involving the government's "blame" in failing to timely try a defendant. (See Vermont v. Brillon (2009) 556 U.S. 81, 90 [173 L.Ed.2d 231, 240] ["Deliberate delay 'to hamper the defense' weighs heavily against the prosecution"]; Doggett v. United States (1992) 505 U.S. 647, 655 [120 L.Ed.2d 520, 530-531] ["excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify"].) However, the rules are different when the delay occurs at the appellate level and pertains to a retrial: " 'Extreme delay in the processing of an appeal may amount to a violation of due process.' [Citation.] However, 'not every delay in the appeal of a case, even an inordinate one, implicates an appellant's due process rights. [Citation.] Four factors must be considered in evaluating claims of appellate delay: '(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant.' [Citation.]" (United States v. Mohawk (9th Cir. 1994) 20 F.3d 1480, 1485, italics added.) Prejudice is the most important factor. (Ibid.; see United States v. Tucker (9th Cir. 1993) 8 F.3d 673, 676.) "Three types of prejudice can flow from appellate delay: (1) oppressive incarceration pending appeal; (2) anxiety and concern of the convicted party awaiting the outcome of the appeal; and (3) impairment of the convicted person's grounds for appeal or of the viability of his defense in case of retrial." (Mohawk, at pp. 1485-1486.)

As for the first two factors, defendant eventually was granted relief by the striking of the special circumstance; thus he had a chance at parole. As for the third factor, like the trial courts who ruled on the motions to dismiss, we see no "prejudice" to defendant in the ordinary sense. He was faced with overwhelming evidence, exacerbated by his assertion of an implausible self-defense claim. True, several witnesses were unavailable for the retrial, but he does not plausibly explain how that prejudiced him. And James's testimony was not introduced. As we have already discussed, there is no evidence any other witness--such as Gebert--knew about Van Oss's actions. Accordingly, we see no prejudice.

Although defendant acknowledges that the re-reading of the testimony of a dead or otherwise unavailable witness from a prior trial is not generally improper, he claims that because multiple witnesses had died in his case, he was effectively tried "by affidavit," in violation of the core protection of the confrontation clause. Defendant cites no authority for this argument, and we know of none. (Cf. People v. Herrera (2010) 49 Cal.4th 613, 620-621 [admission of prior testimony of unavailable witness does not offend the confrontation clause if the defendant had an opportunity at the prior hearing to confront that witness]; People v. Friend, supra, 47 Cal.4th at pp. 67-68 [where unavailability is shown as required by statutes codifying the prior-testimony hearsay exception, no confrontation clause violation occurs].)

Further, this is an unduly simplified view of the record. As explained, James had died, but his testimony was not used at the retrial. Flamingo Motel manager, Orville Byrd, had died, but his prior testimony was not introduced either, nor does defendant argue it would have aided the defense case. One of the two responding officers, Martin Wilson had died, but his testimony was cumulative of other evidence, as his partner and other witnesses testified about what was found at the scene, and defendant does not explain how the absence of Wilson's testimony was important. Thus, three of the six "missing" witnesses were of little or no importance on retrial. James Cross, Michelle Gebert, and defendant's sister Barbara Lord, were the only dead witnesses whose testimony can be deemed significant. Defendant does not explain how Lord's absence from the retrial was important. He emphasizes again his view that the prior testimony of Gebert was as tainted as James's testimony, but as we discussed, this view is entirely speculative. Speculation is not a basis upon which to dismiss a prosecution. Nor does defendant discuss how he would have benefitted from the opportunity to examine Cross yet again, and we see no benefit. (See Hayes I, supra, 52 Cal.3d at p. 620 ["Cross's preliminary hearing testimony does not support an inference that he was intoxicated, much less belligerent, and defense counsel could reasonably conclude, after observing Cross testify, that suggesting he had provoked defendant would be implausible and would only antagonize the jury"].)

The retrial was not unfair simply because it was delayed. As our Supreme Court recently explained: "We have consistently rejected this claim, explaining that 'the automatic appeal process following judgments of death is a constitutional safeguard, not a constitutional defect [citations], because it assures careful review of the defendant's conviction and sentence [citation].' " (People v. Winbush (2017) 2 Cal.5th 402, 488.) Assuming Van Oss committed prejudicial misconduct at the first trial, Hayes II found the remedy of a retrial cured the harm, and did not indicate Van Oss's denial of his alleged misconduct required further sanctions, or tainted the whole case, as defendant suggests. We find no further sanctions were warranted to ensure fairness.

X

Instruction on Former Testimony

As stated, the trial court gave a pattern instruction (CALJIC No. 2.12), as follows: "Testimony given by a witness at a prior proceeding who was unavailable at this trial has been read to you from the reporter's transcript of that proceeding. You must consider that testimony as if it had been given before you in this trial."

Defendant contends this instruction was improper. He reasons that prior testimony is admitted as "a weaker substitute to live testimony. It is hearsay and should be treated by the trier of fact as such." Of course, it was admissible hearsay. (Evid. Code, § 1291.) Defendant contends that, at least in some circumstances, "prior testimony generally cannot be viewed as equal to live testimony." (People v. Arreola (1994) 7 Cal.4th 1144, 1158.) In defendant's view the instruction gave the prior testimony the same dignity as live testimony, instructing the jury to ignore its inherent weaknesses and thereby reducing the People's burden of proof.¹⁴

14 Defendant notes that later pattern instructions seem to continue this alleged problem. A CALJIC amendment stated former testimony should be evaluated in the "same light" as live testimony (see People v. Wharton (1991) 53 Cal.3d 522, 599, fn. 21), and CALCRIM No. 317 states it should be evaluated "by the same standards" that are applied to a live witness. Defendant cites no cases faulting these instructions.

Putting aside for a moment defendant's failure to object to the pattern instruction when he had an opportunity to do so, in this case the very next instruction given by the trial court was on witness credibility, CALJIC No. 2.20. That instruction begins: "Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness." Therefore, construing the instructions as a whole, the jury would treat the prior testimony of each absent witness, which was given under oath, "as if it had been given before you in this trial," including by assessing its credibility just like it assessed the credibility of other witnesses.

While we agree that live testimony is preferable, as we have explained earlier (Part IX, ante), prior testimony is admissible when the defendant has had an opportunity to challenge it. When it is admitted, the jury must be told to evaluate the credibility of the declarant, and not blindly assume it is true. Thus, the trial court correctly instructed the jury to evaluate the credibility of all witnesses, present in the courtroom or not. The fact the trial court instructed the jury to treat the evidence on an equal par with live evidence accords with the statutory requirement that "[t]he admissibility of former testimony . . . is subject to the same limitations and objections as though the declarant were testifying at the hearing." (Evid. Code, § 1291, subd. (b).) Contrary to defendant's view, this does not merely address threshold admissibility, it addresses the "limitations" to which the evidence is subject, namely, the same limitations as live testimony.

Thus, although there are cases stating former testimony is "weaker" because the jury cannot assess the absent witness's demeanor, defendant has not cited any authority for the proposition that a jury must be instructed to treat prior testimony as weaker. Because the instruction itself, and given in conjunction with others, was correct, defendant was obliged to object when CALJIC No. 2.12 was discussed. He did not do so. Although defendant characterizes his claim as one that the instruction was erroneous and therefore violated his substantial rights, relieving him of the need to object (see § 1259; People v. Watson (2008) 43 Cal.4th 652, 687, 701-702), we disagree. Therefore, as the People contend, defendant has forfeited his claim. (See People v. Andrews, supra, 49 Cal.3d at p. 218; Guiuan, supra, 18 Cal.4th at p. 570.)

XI

Instruction on Defendant's Admissions

The trial court instructed the jury on defendant's admissions pursuant to CALJIC No. 2.71, based on statements he made to Detective Wingo. Defendant did not object to the giving of this instruction.

On appeal, defendant contends the jury would be misled into applying this instruction both to his out-of-court prior statements, specifically his statements to Detective Wingo, and to his prior testimony, during which he explained his self-defense justification for stabbing Patel. We accept for purposes of this argument that the jury might not have understood the distinction between defendant's statements to Wingo and his prior testimony. However, no possible harm resulted.

As read to the jury, CALJIC No. 2.71 provided:

"An admission is a statement made by the defendant other than at his trial which does not by itself acknowledge his guilt of his crimes for which he is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.

"You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part. If you

should find that the defendant did not make the statement, you must reject it. If you find that it is true in whole or in part, you may consider that part which you find to be true.

"Evidence of an oral admission of the defendant should be viewed with caution." (Italics added.)

The purpose of this instruction " 'is to assist the jury in determining if the statement was in fact made' " before it considers the statement in determining guilt or innocence. (People v. Livaditis (1992) 2 Cal.4th 759, 784.) That is, the instruction guards against the danger that someone might make up or misremember an inculpatory statement attributed to the defendant. (See People v. Diaz (2015) 60 Cal.4th 1176, 1185-1186; People v. Bemis (1949) 33 Cal.2d 395, 398 [" 'no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used' "].) Thus, as for that subcategory of "statements" which are admissions defined by the first paragraph, the emphasized portions of the instruction as quoted above require the jury to consider statements only if the jury finds the defendant spoke the words in question. (See People v. Vega (1990) 220 Cal.App.3d 310, 317-318.)

In People v. Wheelwright (1968) 262 Cal.App.2d 63, we held that a cautionary instruction that failed to define what an "oral admission or statement" was might have been construed by the jury to apply to the defendant's testimony. (Id. at pp. 69-70.) Here, the pattern instruction defines an admission "as a statement made by the defendant other than at his trial." (CALJIC No. 2.71.) Because the defendant's prior testimony was not given "at his trial," but was referred to as coming from a prior "hearing," defendant posits that this jury would interpret the instruction to apply to the prior testimony.

Assuming we agree, before defendant's prior testimony was read, the jury was read the oath he gave, specifically: "defendant herein having been first duly and regularly sworn, testifies as follows." (Italics added) The jury would understand defendant's "statements" under oath were testimony recorded at a prior hearing. Because defendant did not challenge the accuracy of the transcript or the read-back of his prior testimony, there could be no dispute that the statements therein were made by the defendant, rather than made up by someone else and attributed to defendant, the danger against which the instruction guards. (See People v. Livaditis, supra, 2 Cal.4th at p. 784; People v. Bemis, supra, 33 Cal.2d at pp. 398-399.)¹⁵

15 The instruction is not to be given when a defendant's statements have been recorded because in such cases there is no dispute that they were made. (See People v. Williams (2008) 43 Cal.4th 584, 639; People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) That is true here only as to defendant's testimony, which was recorded by a court reporter.

Accordingly, construing the instruction in light of the matter presented to the jury, we reject defendant's claim the jury would interpret the instruction as casting some doubt on whether defendant was telling the truth in his prior testimony, rather than merely determining whether he actually made statements attributed to him, the core function of the instruction, and the only reasonable way to interpret it as given herein.

XII

Special Instruction on Imminent Danger

Within the self-defense series, the trial court instructed: " 'Imminent peril' or 'imminent danger' as used in these instructions means that peril or danger must have existed or appeared to the defendant to have existed at the very time the fatal stab was inflicted. In other words, the peril or danger must appear to the defendant as immediate and present and not prospective or even in the future. An imminent peril or danger is one that, from appearances, must be instantly dealt with."

On appeal, defendant faults this instruction, because "[i]t implied that a person cannot act in self defense until the very moment that the danger manifests." He argues that the instruction as given failed to "impart the understanding that 'imminent danger' is all that is required and that simultaneous danger is not required."

Defendant surmises the pattern instruction stemmed from People v. Aris (1989) 215 Cal.App.3d 1178 (Aris), in which a battered wife shot her sleeping husband, and the jury was instructed the peril had to exist at the moment the fatal shot was fired. (Id. at p. 1187.) Defendant appears to be correct as to the origin of the instruction given.

As defendant also correctly points out, Aris was partly disapproved in a case recognizing that a repeatedly battered person may form a reasonable belief that predicts an imminent attack. (People v. Humphrey (1996) 13 Cal.4th 1073, 1086 ["As violence increases over time, and threats gain credibility, a battered person might become sensitized and thus able reasonably to discern when danger is real and when it is not"].)

Defendant posits that a reasonable prediction about an attack may justify what is essentially a preemptive strike in some cases, citing some cases defining "imminent" in other contexts. (See Sarun v. Dignity Health (2015) 232 Cal.App.4th 1159, 1168 [" 'The term "imminent" is defined as . . . "menacingly near" ' "]; James v. Superior Court (1978) 87 Cal.App.3d 985, 991.) Defendant's definitions of "imminent" would seem to apply equally in the context of self-defense.

But we disagree that the propriety of a preemptive strike was at issue in this case. Defendant's testimony was that he woke up as Patel was attacking him by slapping him, and when he rose he saw Patel was armed with a knife, and it was only after Patel cut defendant that he picked up the knife. Defendant's briefing agrees that, per defendant's version of events, "[d]anger was clearly imminent." We agree. In defendant's version, at his first moments of consciousness, he thought he was already in danger and entitled to reply with deadly force, in what turned into a prolonged struggle, until Patel no longer posed a threat because he was bound with hangers. Accordingly, any distinction concerning reasonable apprehension of an attack seems purely academic, because defendant testified he was already under attack when he woke up, and that the danger continued until the fatal stabbing was complete.

The instruction on imminent peril as given was legally correct and directly responsive to the defense evidence. If defendant thought the evidence raised some issue about the right to a preemptive strike, he should have asked for a clarification or a pinpoint instruction. However, he instead affirmatively stated he had no objection to this instruction, although he contemporaneously objected to another special instruction, showing he was paying attention and making tactical decisions. Accordingly, he forfeited his claim of error. (See Guiuan, supra, 18 Cal.4th at p. 570.)

Defendant also contends the prosecutor used the instruction improperly, to argue that after the first part of the struggle, "Patel is just backing up when [defendant] comes at him; that's not imminent, that's not what the law entails, envisions." This is not an argument that the instruction was wrong, this is a claim that the prosecutor misapplied it to the facts. Defendant interposed no objection to the argument, and the jury was instructed that attorney argument was not evidence, and it was up to the jury to determine the facts based on the applicable law as read by the trial court (CALCRIM Nos. 1.00, 104). Accordingly, we find that the prosecutor's argument--to which no contemporaneous objection was interposed--does not advance defendant's claim of instructional error.

XIII

Home Protection Bill of Rights

A few years after the killing, the Home Protection Bill of Rights was adopted to codify one version of the so-called "castle doctrine" in California, as follows:

"Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and

forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

"As used in this section, great bodily injury means a significant or substantial physical injury." (§ 198.5; See stats. 1984, ch. 1666, § 1, p. 5998.)

Instruction on a defense need only be given on issues supported by substantial evidence. (See People v. Souza (2012) 54 Cal.4th 90, 115-116.) "On review, we determine independently whether substantial evidence to support a defense existed." (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)

We have held that "[f]or section 198.5 to apply, four elements must be met. There must be an unlawful and forcible entry into a residence; the entry must be by someone who is not a member of the family or the household; the residential occupant must have used 'deadly' force (as defined in § 198.5) against the victim within the residence; and finally, the residential occupant must have had knowledge of the unlawful and forcible entry." (People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495 (Brown).)

Defendant contends there was evidence to support this instruction and the trial court therefore erred by not giving it. He did not request it at trial. For purposes of argument, we will assume that--viewing the evidence in defendant's favor--a jury could find he was a co-resident invitee of his sister. (See People v. Grays (2016) 246 Cal.App.4th 679, 688 ["the statute's purpose . . . would be frustrated if we relied on the nuanced, and sometimes arcane, laws of trespass or landlord-tenant to define the scope of 'residence' in section 198.5"].) We shall further assume that the jury could have found Patel unlawfully entered and wielded a knife therein, triggering section 198.5. (However, we observe there is scant--if any--evidence of forcible entry, inasmuch as Patel had a key, and earlier had been asked by defendant to come into the room to fix an alleged plumbing problem.) For purposes of this appeal, we will assume that the jury might find Patel entered to avenge himself on defendant for returning to the motel.

Although, as defendant points out, the Attorney General does not argue harmless error, that does not result in a forfeiture because we are precluded from reversing a conviction absent a "miscarriage of justice" (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836) and we see none for two reasons.¹⁶

16 Some cases have suggested that the failure to argue harmless error is a concession that if error is found, it is prejudicial. (See, e.g., People v. Johnwell (2004) 121 Cal.App.4th 1267, 1278.) We disagree. Even a respondent's failure to address an argument entirely does not require the appellate court to treat the failure to respond as a concession that the argument has merit. (See, e.g., Kruger v. Department of Motor Vehicles (1993) 13 Cal.App.4th 541, 546.) Therefore the unexplained failure of the Attorney General to brief prejudice is not a concession of reversible error, at least not herein. --------

First, because of the other instructions given in this case, the point was adequately covered and therefore there was no duty to give an instruction on section 198.5 absent a request. Second, the omitted issue--the ability of the jury to find facts triggering a presumption defendant acted in reasonable fear of Patel--was necessarily resolved adversely to defendant by other instructions and the verdicts thereon. Thus defendant could not have been prejudiced. (See People v. Howard (1992) 1 Cal.4th 1132, 1172 ["We ordinarily hold instructional error . . . harmless when the factual question . . . was necessarily resolved adversely to defendant under other, properly given instructions"]; see also People v. Beames (2007) 40 Cal.4th 907, 928 [same].)

The jury herein was given complete instructions on self-defense, and its many subcomponents, including imperfect self-defense and defense against a forcible and atrocious crime or an assault. (CALJIC Nos. 5.12, 5.13, 5.16, 5.17, 5.30, 5.51.) It was also instructed on the People's burden of proof beyond a reasonable doubt (CALJIC No. 2.90), including the burden to disprove whether the homicide was justified, e.g., by self defense (CALJIC No. 5.15), and on the duty to return verdicts on only the lesser included offenses if the People did not meet their burden on the greater offenses. (CALJIC Nos. 8.71, 17.10, 8.50, 8.72.) Therefore, defendant was not entirely deprived of the defense of self defense, he was merely deprived (arguably, for purposes of this appeal) of the benefit of an instruction that if the jury had found the predicate factors to be true, defendant was "presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self." (§ 198.5.) That is a state law error subject to the Watson standard of prejudice. (See, e.g., People v. Breverman (1998) 19 Cal.4th 142, 174-175, 178; People v. Hanna (2013) 218 Cal.App.4th 455, 462-463.)

In an analogous case, an instruction on section 198.5 was held to be warranted only upon request, when other appropriate instructions were given, because "the effect of section 198.5 was to create a presumption that defendant, by having a reasonable fear of death or great bodily injury, acted properly in self-defense or defense of another. Thus, the statute placed on the People the burden to prove beyond a reasonable doubt that defendant did not have a reasonable fear. That presumption and the People's concomitant burden of proof [were] already before the jury by virtue of the other instructions given." (People v. Owen (1991) 226 Cal.App.3d 996, 1004 (Owen).)

Owen elaborates on why there is no duty to give this instruction absent request, where the point is covered by standard homicide, self-defense, and reasonable doubt instructions (Owen, supra, 226 Cal.App.3d at pp. 1005-1007). Although defendant cites Owen for a different proposition, he makes no effort to address the thrust of its holding and incorrectly contends the instruction must be given absent request. We agree with Owen that "the court had no sua sponte duty to give an instruction based on section 198.5 because the jury was adequately instructed on the law pertinent to the facts of the case, including that encompassed in section 198.5, by the instructions given." (Id. at p. 1005.) Therefore, defendant's failure to request a section 198.5 instruction forfeits the claim of error. (See Guiuan, supra, 18 Cal.4th at p. 570.)

Further, defendant fails to address an alternate holding in Owen, to the effect that the jury verdicts therein necessarily show an instruction on section 198.5 would not have made any difference, because by returning a murder verdict, the jury necessarily rejected the self-defense claim. (Owen, supra, 226 Cal.App.3d at pp. 1007-1008.)

Similarly in this case, had the jury been instructed it could find facts sufficient to trigger a presumption that defendant "held a reasonable fear of imminent peril of death or great bodily injury to self," as provided by section 198.5, it would have been instructed: "This presumption means that you must find the defendant held a reasonable fear of imminent peril of death or great bodily injury to himself, unless you are satisfied beyond a reasonable doubt from all of the evidence that an unlawful killing occurred." (CALJIC No. 5.44, italics added; see CALCRIM No. 506 ["The People have the burden of proving beyond a reasonable doubt that the killing was not justified"].)

By convicting defendant of murder on the instructions given, the jury found the People disproved beyond a reasonable doubt that the homicide was justified, and disproved perfect and imperfect self-defense, because that would have led to a manslaughter verdict, on which the jury was instructed as a lesser included offense. Therefore the jury necessarily rejected defendant's claim that he believed Patel posed a threat to him.

In short, the instructions given and the verdicts returned show that if the omitted instruction had been given, the same result would have been achieved. Therefore even if any instructional error occurred, it was harmless on this record.

DISPOSITION

The judgment is affirmed.

/s/_________

Duarte, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Renner, J.