People v. Blacksher (2011) · DecisionDepot

People v. Blacksher

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 25, 2011 No. S076582Published

Before: Corrigan

Filed 8/25/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S076582 v. ) ) ERVEN R. BLACKSHER, ) ) Alameda County Defendant and Appellant. ) Super. Ct. No. 125666 ____________________________________)

A jury found defendant Erven R. Blacksher guilty of the first degree murder of his nephew, the second degree murder of his sister, and being a felon in 1 possession of a firearm. It also found true the firearm-use allegations and the 2 special circumstance of multiple murder. The jury concluded defendant was sane and returned a verdict of death. This appeal is automatic. We affirm.

1 Penal Code sections 187, 189, and 12021. All further statutory references are to the Penal Code unless otherwise indicated. 2 Sections 1203.06, 12022.5, and 190.2, subd. (a)(3).

I. FACTS AND PROCEEDINGS

A. Guilt Phase

1. Prosecution’s case In 1989, after the death of his father, defendant moved in with his mother, Eva Blacksher, at her home in Berkeley. Defendant was Eva‘s youngest and favorite child.3 She provided for him. He did no work and paid no rent. Defendant was very controlling with his mother. He demanded that his siblings not visit the home, insisting he could take care of everything on his own. In 1990, however, as Eva grew ill, defendant‘s sister, Versenia Lee, began caring for her. Versenia moved into the home with her ex-husband, Sammie, and their son, Torey. To make room for them, defendant moved into a small cottage behind the house. Defendant became jealous as Eva‘s attention shifted away from him and towards Torey. By May 1995, the relationship between the 40-year-old defendant and 21- year-old Torey became increasingly hostile. Early on the morning of May 7, 1995, defendant visited his brother, Elijah Blacksher. Defendant was angry, saying that Torey was ―fucking with‖ him. Torey and his friends had threatened defendant and thrown rocks at his car. Torey was dishonoring Eva by selling cocaine at her home. Defendant asked Elijah to get him a gun so he could kill Torey. Elijah refused and tried to reason with defendant, explaining that Torey was part of the family. Elijah asked defendant not to return home but to spend the rest of the night at his residence. Defendant refused and left.

3 Several members of the Blacksher family testified at the preliminary hearing and at trial. We refer to these witnesses by their given names to avoid confusion and repetition.

Related research

On October 6, 1986, defendant‘s parole officer had him committed because defendant declared he was a woman. He had insisted on using the women‘s bathroom at church and claimed he had been mistakenly raised as a man. He objected to being addressed as ―sir,‖ and made frequent religious references. He denied hallucinations, but laughed inappropriately as if responding to internal stimuli. Defendant was forcibly injected with Haldol, a potent antipsychotic medication. Defendant did not appear to be a threat to himself or others, but the medication did not alleviate defendant‘s delusion that he was a woman. Against the advice of his treating physician, defendant discharged himself at the end of the 72 hours and balked at the idea of taking any medication. Defendant was diagnosed as having chronic and delusional paranoid schizophrenia. From 1987 to 1988, defendant was again incarcerated at the California Medical Facility at Vacaville. There, he claimed he was homosexual and insisted he be housed only with other gay inmates in administrative segregation. He refused to take his medication. Staff and fellow inmates reported that defendant was paranoid, and sometimes incoherent, and would yell and laugh inappropriately. He was given the probable diagnosis of paranoid schizophrenia. Defendant had no further mental health institutionalizations after January 21, 1988, but continued to receive disability payments for mental illness until his arrest for the present offenses. Defendant‘s girlfriend said defendant continued to suffer delusions after his release from incarceration in the early 1990‘s. Defendant at various times believed he had two heads or the head of a dog, thought people looked like devils, believed he was Jesus and his mother was ―the Earth Mother,‖ and was convinced he was the only man with male genitalia. Dr. Michael Levin, who had diagnosed defendant with paranoid schizophrenia in 1986, testified that schizophrenia is a severe, lifelong mental

his interview, defendant ―talked non-stop for approximately an hour and fifteen minutes.‖ Although defendant initially presented ―a logical thought process,‖ his ―thought confusion‖ gradually revealed itself. Defendant appeared suspicious and had ―severe mood swings‖ throughout the interview. At times, he appeared ―anxious and depressed,‖ while at other times he appeared ―euphoric and laugh[ed] wildly‖ for no apparent reason. Although defendant denied any hallucinations, ―he clearly was responding to internal stimuli.‖ He spoke loudly, repeated himself, could not sit still, had ―delusions of persecution,‖ engaged in loose and tangential thinking, and used bizarre verbiage. Defendant occasionally could think abstractly, ―but unfortunately would very quickly become overly involved in his thought process,‖ ―lose his focus,‖ and use strange words. Defendant‘s presentation was ―so severe‖ that Dr. Davenport questioned whether he was malingering, and asked to review his mental health records. According to Dr. Davenport, those records showed that defendant had received ―very little intervention over time.‖ Although defendant appeared to understand the charges against him and the roles of the participants in the courtroom, Dr. Davenport believed he was not capable of assisting in his own defense. Dr. Fort concluded defendant was competent to stand trial. He reviewed defendant‘s background information, including the circumstances of these offenses and his mental health history. During defendant‘s interview, he was ―cooperative, talkative, oriented,‖ and appeared to have ―average intelligence and memory.‖ Dr. Fort reported defendant understood the charges against him, the roles of the participants at trial, and the purpose of his next court appearance. Dr. Fort also noted defendant was able to summarize the testimony of three witnesses, and was able to read and approve a lengthy motion. Dr. Fort noticed no signs of hallucinations or delusions except that defendant claimed he did not exist anymore

counsel in conducting a defense in a rational manner. (See ibid.; § 1367.)‖ (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047.) A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence by the party contending he or she is incompetent. (§ 1369, subd. (f); Medina v. California (1992) 505 U.S. 437; People v. Medina (1990) 51 Cal.3d 870, 881-885; Cal. Rules of Court, rule 4.130(e)(2).) In reviewing on appeal a finding of competency, ―an appellate court must view the record in the light most favorable to the verdict and uphold the verdict if it is supported by substantial evidence.‖ (People v. Marshall (1997) 15 Cal.4th 1, 31.) Defendant argues the court‘s reliance on Dr. Rosenthal‘s report was an abuse of discretion because the report did not provide substantial evidence of his competence. Specifically, he argues Dr. Rosenthal‘s report only established that defendant was willing to cooperate with his attorney, but failed to establish that defendant was able to assist his defense counsel in a rational manner. In fact, he asserts, the report noted he became irrational, paranoid, and had a limited ―hold on reality‖ when it came to questions of his innocence. Because defendant failed to raise these objections below, they are forfeited. Defendant argues the application of the forfeiture rule here ―is akin to arguing that a failure to object to evidence on hearsay grounds would prevent an argument on appeal that the evidence was constitutionally insufficient to support the verdict.‖ Defendant ignores a crucial distinction. Unlike the adjudication of criminal guilt, which presumes a defendant‘s innocence and places the burden of proof on the state, here defendant is presumed competent. Because he raised the issue of his competency, he assumes the burden of proof. (§§ 1096, 1369, subd. (f).) Under these circumstances, by failing to object below, defendant deprived the prosecution of the opportunity to rebut any objections with evidence supporting the

presumption of competency. (See In re Seaton (2004) 34 Cal.4th 193, 199; see also People v. Weaver (2001) 26 Cal.4th 876, 904 [―Having submitted the competency determination on the two psychiatric reports, defendant may not now relitigate that question with arguments he did not make below‖].) Because defendant submitted the question of his competency on Dr. Rosenthal‘s report, he has forfeited the claims that the court abused its discretion by determining competency on the ―majority vote‖ of the experts or by relying on allegedly insufficient reports. In any event, there is no merit to defendant‘s claim that the court failed to exercise its discretion by relying on the ―majority vote‖ of the three appointed experts. Instead, the record demonstrates that the parties agreed to submit the issue of defendant‘s competency on Dr. Rosenthal‘s report and the trial court made its ruling based on that report. The court‘s decision to obtain a third report and its reliance on that single report was not an abuse of discretion. (See People v. McPeters (1992) 2 Cal.4th 1148, 1168-1169; § 1369, subd. (a).) Moreover, it was defendant‘s burden to prove he was legally incompetent, and Dr. Rosenthal‘s report does not support such a determination. Although Dr. Rosenthal believed defendant suffered from paranoid schizophrenia, he concluded defendant remained ―sufficiently in contact with reality to be considered mentally competent to stand trial.‖ He based this conclusion on an examination of defendant and consideration of his prior mental health history. Although Dr. Rosenthal did not state in so many words that defendant was capable of assisting in his defense, that conclusion was evident in his report. Dr. Rosenthal concluded defendant understood the charges against him, was able to discuss his legal situation coherently, and was willing to cooperate with his attorney. These circumstances demonstrated that defendant was capable of assisting in his defense.

has the right to be personally present at any proceeding in which his appearance is necessary to prevent ‗interference with [his] opportunity for effective cross- examination.‘ ‖ (People v. Butler (2009) 46 Cal.4th 847, 861, quoting Kentucky v. Stincer (1987) 482 U.S. 730, 744–745, fn. 17.) ―Due process guarantees the right to be present at any ‗stage … that is critical to [the] outcome‘ and where the defendant‘s ‗presence would contribute to the fairness of the procedure.‘ ‖ (Butler, at p. 861, quoting Stincer, at p. 745.) ― ‗The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]‘ Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant‘s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]‖ (Butler, at p. 861, quoting People v. Harris (2008) 43 Cal.4th 1269, 1306.) ―Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.‖ (People v. Bradford (1997) 15 Cal.4th 1229, 1357.) In each of the 17 complained-of proceedings, defendant‘s presence was not necessary for effective cross-examination or to contribute to the fairness of the procedure. His absence did not deprive him of the full opportunity to defend against the charges. Most of the complained-of proceedings require little discussion, as they involved pretrial matters or occurred before the presentation of evidence at the guilt phase. On one occasion, defendant had agreed to his absence on the record the day before, and the proceedings merely involved corrections to the jury questionnaire and the record. Two of the proceedings were postponed specifically because of defendant‘s absence. Nine of the proceedings concerned routine legal and procedural matters involving discovery, record corrections, stipulated juror

In State v. Davis, a woman called 911 to report her boyfriend was beating her with his fists. Her statements were made in the present tense and the police operator asked for the perpetrator‘s name, which the caller gave. She then told the operator the boyfriend had driven off. The 911 tape was admitted at defendant‘s trial when the caller failed to appear. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1153], citing Davis, supra, 547 U.S. at pp. 817-819.) In Hammon v. State, police went to the Hammon home following a report of domestic violence. They arrived to find Amy Hammon alone on her front porch. She initially told them that nothing was wrong. Officers went inside with Amy‘s permission. There, they found broken glass on the floor and Hershel Hammon in the kitchen. One officer kept Hershel there while Amy was taken into the living room and told the other officer what happened. Amy then wrote and signed a ―battery affidavit,‖ summarizing Hershel‘s assault on her. When Amy failed to appear at Hershel‘s trial, both her oral and written statements were admitted through an officer‘s testimony. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1154], citing Davis, supra, 547 U.S. at pp. 819-820.) As discussed in Bryant, the Davis court distinguished the two cases, holding the statements in Hammon v. State were testimonial while those in State v. Davis were not. The Bryant court summarized the differences between them. In Davis, the events related to the operator were actually happening, as opposed to past, completed events. The beating of the caller was an ongoing emergency that the statements were elicited to resolve. The statements were not formal but a call for help. By contrast, in Hammon v. State whatever had occurred was over when the officers arrived. Amy said there was nothing wrong and there was no apparent ongoing danger. The questioning of Amy was part of an investigation into past conduct. Finally, the circumstances in which Amy was subjected to, organized and

B. Evidentiary Rulings Concerning Defendant’s Mental Problems Defendant contends the court improperly prevented him from introducing evidence of his mental health problems and from impeaching the testimony of his family members who claimed not to know of these problems. He also claims the court treated the prosecution deferentially, allowing that side to present evidence rebutting defendant‘s claims on this topic. He maintains the court‘s rulings denied him his federal constitutional rights to due process and to present a defense. His contentions lack merit. The court properly ruled that the evidence was either irrelevant or called for inadmissible hearsay, and defendant made no offer of proof to establish the admissibility of the disputed evidence. A trial court has broad discretion in determining relevancy, but it cannot admit evidence that is irrelevant or inadmissible under constitutional or state law. (People v. Morrison (2004) 34 Cal.4th 698, 724.) ―The proponent of proffered testimony has the burden of establishing its relevance, and if the testimony is comprised of hearsay, the foundational requirements for its admissibility under an exception to the hearsay rule. [Citations.] Evidence is properly excluded when the proponent fails to make an adequate offer of proof regarding the relevance or admissibility of the evidence. [Citations.]‖ (Ibid.; Evid. Code, § 1200, subd. (b).) Defendant complains the court erred in sustaining the prosecution‘s objections to defense counsel‘s questions: 1) Whether Sammie Lee, defendant‘s former brother-in-law, had heard ―other family members‖ refer to defendant as ―crazy;‖ 2) Whether Eva had told her neighbor, John Adams, that defendant had mental problems; 3) Whether Officer Nielsen, in responding to the scene of the murders, heard either the radio dispatch or Adams mention that defendant had mental problems; 4) Whether defendant‘s sister, Ruth Cole, had read Officer Mesones‘s police report, in which he described defendant as ―schizophrenic and

been relevant, but the court sustained the prosecution‘s objection to this question on the ground it called for a ―medical conclusion.‖ It appears that defense counsel was seeking a lay description of defendant‘s behavior, not an expert evaluation of paranoia. Even assuming an error that defendant did not forfeit, however, James‘s description of defendant as behaving in a paranoid manner on the night he visited him would have added little to defendant‘s case. James, his wife Frances, and defendant‘s brother Elijah all testified in great detail as to defendant‘s behavior that night, and the jury was free to draw its own conclusion as to whether defendant behaved abnormally then. Finally, we reject defendant‘s contention that, despite the rules of evidence, the federal constitutional right to present a defense prevails over state evidentiary rules to invalidate the court‘s rulings. Again, defendant forfeited this contention by not raising it below, and it lacks merit in any event. ―As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused‘s right to present a defense.‖ (People v. Hall (1986) 41 Cal.3d 826, 834.) Defendant fails to persuade us that the application of these rules prejudiced the ability to defend his case. Here, defendant was permitted to introduce extensive evidence relevant to his mental defense. The excluded evidence was of slight value in comparison to the substantial evidence admitted. In order to impeach those family members who denied knowing any of defendant‘s mental history, defendant was permitted to introduce Dr. Davenport‘s detailed testimony regarding his numerous hospitalizations and various diagnoses. The jury also learned that defendant had received government disability payments based on his diagnosis of paranoid schizophrenia. Finally, they also heard John Adams testify and state in his 911 call that he believed defendant had had a ―case of mental illness . . . over the years‖

[competency] examination.‘ ‖ (People v. Weaver (2001) 26 Cal.4th 876, 960, quoting People v. Arcega (1982) 32 Cal.3d 504, 522; see also People v. Pokovich (2006) 39 Cal.4th 1240, 1246.) Unless the defendant has made a valid waiver under Miranda v. Arizona (1966) 384 U.S. 436, the statements he or she makes during a competency examination enjoy immunity and cannot ―be used by the prosecution to prove its case-in-chief as to either guilt or penalty‖ or to impeach a defendant at trial. (People v. Pokovich, supra, 39 Cal.4th 1240, 1246, 1253; see also People v. Weaver, supra, 26 Cal.4th at p. 960, citing Arcega, supra, 32 Cal.3d at p. 523, and Estelle v. Smith (1981) 451 U.S. 454.) Defendant lodged unsuccessful objections to many of the prosecutor‘s questions on various grounds, but did not specifically object to the questions about Dr. Davenport‘s competency examinations of defendant. To the extent defendant failed to lodge a Fifth Amendment objection to the prosecutor‘s questions about the prior competency examinations, this claim is forfeited. (People v. Weaver, supra, 26 Cal.4th 876, 961.) We disagree that any objection would have been futile, given the clarity of case law on this subject and the fact that the court sustained at least one of defendant‘s objections during the prosecutor‘s cross- examination. Even if the in-chambers discussion could be construed as evidence that defense counsel was objecting generally to this evidence, counsel failed to state any Fifth Amendment basis for the objection. (See People v. Kennedy (2005) 36 Cal.4th 595, 612.) As the court noted, however, it was the defense that began the inquiry by asking about those interviews on direct examination. Even assuming error, defendant fails to show prejudice. In cross- examination, the prosecutor elicited statements defendant had made during the 1996 competency evaluation in which he denied experiencing any hallucinations, denied being delusional, said he understood the charges against him, and denied

guilt. But on redirect examination, Dr. Davenport stated that during his 1996 competency evaluation defendant appeared to be responding to hallucinations and made delusional statements, and explained it was common for mentally ill persons to deny their illness. This testimony helped clarify Dr. Davenport‘s earlier cross- examination testimony and to impeach the testimony of family members who denied knowing of defendant‘s mental illness. As to defendant‘s statements about understanding the charges against him and denying his guilt, defendant‘s actions after the murders showed that he understood his culpability and that he was trying to deflect guilt from himself and, initially, to avoid apprehension. Before he fled the state, defendant telephoned his relatives, claiming that masked men were responsible for gunshots inside his mother‘s home. Moreover, the court instructed the jury that Dr. Davenport‘s testimony could be considered only to impeach defendant‘s family members who denied knowing that defendant suffered from any mental illness, not ―to show or negate the capacity of the defendant to form [the mental states] required for the commission of the crimes charged.‖ Under these circumstances, any error was harmless beyond a reasonable doubt. (People v. Pokovich, supra, 39 Cal.4th 1240, 1254-1255, citing Chapman v. California (1967) 386 U.S. 18.) As for the remaining portions of the prosecutor‘s cross-examination, there was no error. ―It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination.‖ (People v. Farnam, supra, 28 Cal.4th 107, 187.) Moreover, ― ‗it is well settled that the scope of cross- examination of an expert witness is especially broad; a prosecutor may bring in facts beyond those introduced on direct examination in order to explore the grounds and reliability of the expert‘s opinion. [Citations.]‘ ‖ (People v. Loker (2008) 44 Cal.4th 691, 739, quoting People v. Lancaster, supra, 41 Cal.4th at p.

Defendant claims the prosecutor violated defendant‘s Fifth Amendment right to remain silent by making two references to statements defendant had made to Dr. Davenport during his 1996 competency evaluation. In the first, the prosecutor stated defendant had claimed someone else had committed the murders and, according to Dr. Davenport, had ―vehemently denied‖ guilt and had claimed ―the masked men came in the house and did this.‖ Defense counsel interrupted, and said, ―That‘s not it,‖ and the court replied, ―Sustained.‖ In the second, the prosecutor again mentioned that defendant had ―vehemently denied the charges‖ to Dr. Davenport, but the jury would be able ―to tell‖ the doctor ―the truth of what [defendant] did that day —.‖ Defense counsel again interrupted with an objection to the form of the statement, but the court overruled the objection. Defendant has forfeited this claim on appeal for several reasons. First, as discussed ante at page 63, despite the immunity attached to such statements, defense counsel did not object when the prosecutor elicited defendant‘s competency statements from Dr. Davenport during cross-examination. When evidence is admitted without objection, it is difficult ―to fault the prosecutor for simply referring to [statements] that had been admitted by the court.‖ (People v. Schmeck (2005) 37 Cal.4th 240, 301.) Second, defendant‘s objections during the prosecutor‘s closing argument were clearly not made on Fifth Amendment grounds. Defense counsel‘s first objection of ―[t]hat‘s not it‖ simply noted that defendant had never said the masked men had committed the murders, only that he saw them enter the house. Defense counsel‘s second objection was to the form of the prosecutor‘s statement asking the jury to send a message to Dr. Davenport. These objections failed to inform the court of the Fifth Amendment issue so it could consider the interest at stake and make a fully informed ruling. (See People v. Partida (2005) 37 Cal.4th 428, 435.) Third, defendant did not request an

admonition that the jury not consider defendant‘s statements to Dr. Davenport either at the time of the doctor‘s testimony or during the prosecutor‘s closing arguments. ―Generally, a claim of prosecutorial misconduct is preserved for appeal only if the defendant objects in the trial court and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutor‘s misconduct. [Citations.]‖ (People v. Ledesma (2006) 39 Cal.4th 641, 726.) Defendant fails to show why an objection and admonition would have been futile. Moreover, even assuming defendant has not forfeited this claim, and assuming the prosecutor‘s comments violated the immunity afforded to defendant‘s statements made during his competency examination, defendant fails to show prejudice. As discussed ante at page 63, the jury heard evidence that defendant tried to deny any culpability by blaming the murders on masked gunmen he saw enter his mother‘s house. Accordingly, the complained-of statements touched on other, properly admitted, remarks made by defendant. As explained in People v. Noguera (1992) 4 Cal.4th 599, 627, a claim of prejudice ―is substantially undercut, however, by similar evidence in the record which is not challenged.‖ Defendant next argues the prosecutor improperly argued matters outside the record concerning Eva‘s memory and what she may have witnessed during the shootings. The prosecutor argued Eva had been traumatized by the murders, but suggested her inability to recall certain facts damaging to defendant‘s case in her preliminary hearing testimony was due to her bias as his mother. About her prior statements, the prosecutor suggested that ―the only way [Eva] could have said the things she did is because she was able to figure out what happened inside the house.‖ Defense counsel objected to these statements as improper or as referring to matters outside the record, but the court properly overruled the objections. It was not unreasonably speculative to argue that Eva was biased in favor of her son

or that she was able to conclude that defendant had shot the victims. The prosecutor‘s statements were ―reasonable inferences or deductions that may be drawn from the evidence.‖ (People v. Ledesma, supra, 39 Cal.4th at p. 726.) Defendant also takes issue with statements the prosecutor made during argument about whether defendant‘s family members had seen signs that he was mentally ill. First, the prosecutor claimed no one in defendant‘s family had seen signs of mental illness. In response to defense counsel‘s objection, the court corrected the prosecutor and said, ―there were some people who said yes.‖ Given that the court ―promptly and properly corrected the erroneous statement of the prosecutor,‖ any error was avoided. (People v. Williams (1988) 44 Cal.3d 883, 962.) The prosecutor also argued that defendant‘s family members did not know of defendant‘s mental health history because, according to Dr. Davenport‘s testimony, the treatment occurred while defendant was incarcerated. The defense unsuccessfully objected. Although Dr. Davenport did not specifically state that defendant‘s mental health records were mainly from his periods of incarceration, the doctor testified that he was relying on medical records provided by ―Criminal Justice Mental Health.‖ In addition, Elijah Blacksher testified that defendant had ―spent the majority of his life in jail.‖ The prosecutor‘s comment fell within the ―wide latitude‖ of advocates ―to make fair comment upon the evidence.‖ (People v. Ledesma, supra, 39 Cal.4th at p. 726) Defendant also contends the prosecutor improperly suggested that defendant wanted ―no part of the special circumstance‖ because ―he knows what it means‖ and that he believed the defense was going to argue that defendant had committed the murders. But the court sustained defendant‘s objection that it was improper for the prosecutor to discuss what the defense might argue. In any event, we have never categorically prohibited a prosecutor from making fair comments

H. Instructional Error on Manslaughter The parties agree that the court erroneously instructed the jury that an intent to kill is a necessary element of voluntary manslaughter. Defendant argues the error denied him his federal constitutional right to due process and to correct instructions to support his theory of defense. There was no prejudicial error. Murder involves the unlawful killing of a human being with malice aforethought, but a defendant who intentionally commits an unlawful killing without malice is guilty only of voluntary manslaughter. (People v. Breverman (1998) 19 Cal.4th 142, 153.) For purposes of voluntary manslaughter, an intentional unlawful killing can lack malice when the defendant acted under a ― ‗sudden quarrel or heat of passion‘ ‖ or when the defendant acted under ―[an] unreasonable but good faith belief in having to act in self-defense.‖ (Id. at p. 154.) Two years after the trial here, in People v. Lasko (2000) 23 Cal.4th 101, we clarified that voluntary manslaughter may also apply where a defendant ―acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion.‖ (Id. at p. 104.) We further explained that ―the presence or absence of an intent to kill is not dispositive of whether the crime committed is murder or the lesser offense of voluntary manslaughter‖ (id. at p. 110) and that it was error to instruct the jury otherwise. (Id. at p. 111.) Accordingly, the trial court erred here when it instructed the jury that voluntary manslaughter requires a finding that the ―killing was done with the intent to kill.‖ But there was no evidence supporting a manslaughter theory, let alone any theory of unintentional murder. Defendant repeatedly stated his intention to kill Torey days before the murders, and rejected pleas that he reconsider. According to Frances Blacksher, defendant also said if Versenia got in the way, he would kill

Amendment rights under the United States Constitution. There was no prejudicial error. We agree with defendant that the prosecutor committed misconduct by suggesting he did not call any experts at the sanity phase because it would have wasted the jury‘s time. In his opening statement for the sanity phase, the prosecutor claimed he intended to call ―two mental health experts‖ to show that defendant was capable of planning and carrying out a course of action and was ―goal oriented.‖ But the prosecutor called no such witnesses during the sanity phase. In closing argument, the prosecutor said, ―I really thought I was going to call two psychologists and two psychiatrists,‖ but then explained that during the testimony of defense expert Dr. Pierce he had seen the jury ―falling asleep, shuffling, waiting for him to close that book and stop this mess and come on up here and get real in 1998 instead of flashing back in the past in 1978.‖ The prosecutor continued, ―I said, man, if I put on any psychiatric testimony these people are going to kill me.‖ Defense counsel interrupted and objected to the comment as ―inappropriate and irrelevant,‖ but the court overruled the objection stating, ―It is all right.‖ The prosecutor continued, claiming the jury would ―have [his] head,‖ so he ―said no.‖ The prosecutor further explained, ―I don‘t think Dr. Pierce had anywhere to go, so I cut the case short and deal [sic] with him on the basis of his own testimony because he didn‘t get there.‖ To the extent the prosecutor claimed Dr. Pierce was not useful to defendant‘s case, his argument was permissible comment on the evidence. But the prosecutor also implied he had evidence that defendant was not insane, but did not want to bore the jury or waste its time with not just two, but four expert witnesses. This was improper. (People v. Boyette (2002) 29 Cal.4th 381, 452 [misconduct where the prosecutor suggested ―she had evidence in her possession that supported

members knew of defendant‘s mental problems. He also faults the trial court for sustaining the prosecution‘s objection to the question of whether Sammie Lee, Versenia‘s former husband, believed that the Blacksher family had ―seen enough death.‖ He claims the rulings excluded potential mitigating evidence in violation of his rights to present a defense, to confront witnesses, to due process, and to a reliable sentencing determination under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. There was no prejudicial error. When defense counsel tried to ask Georgia what she thought her older siblings did not understand about defendant or why they hated him, the court sustained the prosecution‘s objections as calling for speculation. The court did not abuse its discretion in so ruling. Georgia‘s belief as to what her older siblings thought, or why they thought so, was speculative. (Evid. Code, § 702, subd. (a).) Moreover, at issue was whether the older siblings wrongly believed that defendant suffered no mental illness. Thus, her belief as to that issue was not relevant unless supported by adequate foundation. In any event, defendant made no argument to support the admissibility of this evidence; he likewise fails to do so on appeal. The evidentiary rulings were proper. (People v. Morrison, supra, 34 Cal.4th 698, 724.) The court also sustained objections to Georgia‘s characterizations of defendant as behaving in a ―schizophrenic‖ manner on the ground she was not qualified to give a medical conclusion. Although the term ―schizophrenic‖ carries a technical psychiatric meaning, it also has a common or ordinary meaning as an adjective describing ―contradictory or antagonistic qualities or attitudes.‖ (Merriam-Webster‘s Collegiate Dict. (10th ed. 1998) p. 1041.) Defendant made no effort to clarify which meaning Georgia relied upon. Even assuming a cognizable error, there was no conceivable prejudice. Georgia was allowed to describe in detail her observations of defendant‘s odd behavior. The mere fact that

the prosecutor said about Dr. Fort was that he had reviewed ―some materials,‖ would testify as to defendant‘s state of mind at the time of the murders, and ―[h]is opinion will not be in any way related to paranoid schizophrenia.‖ After the court ruled Dr. Fort‘s testimony inadmissible, the parties agreed to a curative instruction in which the court informed the jury that the prosecutor had intended to call Dr. Fort as a witness, but the court changed its ruling so the prosecutor would no longer be calling him. The court further warned the jury not to speculate about Dr. Fort‘s testimony or why he would not be testifying. It also instructed the jury not to discuss these matters or allow them to be part of the deliberations. Under the circumstances, there was no misconduct. Defendant next argues that the prosecutor made several improper arguments concerning remorse at the penalty phase closing argument. ―A prosecutor may properly comment on a defendant‘s lack of remorse, as relevant to the question of whether remorse is present as a mitigating circumstance, so long as the prosecutor does not suggest that lack of remorse is an aggravating factor.‖ (People v. Mendoza (2000) 24 Cal.4th 130, 187.) Defendant argues it was improper for the prosecutor to comment, over his objection, that defendant‘s emotionless courtroom demeanor showed he had a ―heart of ice,‖ but since defendant placed his own character at issue as a mitigating factor and asked for the jury‘s compassion and sympathy, the argument was proper. (People v. Navarette (2003) 30 Cal.4th 458, 519; People v. Heishman, supra, 45 Cal.3d 147, 197.) Defendant also takes issue with the prosecutor commenting that after the murders defendant ate a ―full breakfast of eggs, coffee, sausage and French toast and finished it off with a cigarette‖ while the victims bled to death. But defendant made no objection to the prosecutor‘s comments, and we have found similar arguments in other cases to be fair comment on the

evidence. (People v. Bennett (2009) 45 Cal.4th 577, 613 [prosecutor did not improperly introduce evidence of defendant‘s lack of remorse where defendant bought a new car and took his wife out for a ―romantic dinner‖ after the murders]; People v. Box (2000) 23 Cal.4th 1153, 1215 [prosecutor did not improperly argue lack of remorse in pointing out that the defendant ate at a fast food restaurant after the murders].) Defendant also complains the prosecutor offered a statement he never made, ―They can drop dead. I won‘t care. I am hungry and I have to have something to eat . . . .‖ But again, defendant did not object, and ―[t]he imagined statements by [defendant] were no more than sarcastic hyperbole identifying what the prosecutor believed to be weakness in the defense explanation of the events.‖ (People v. Cummings (1993) 4 Cal.4th 1233, 1303, fn. 48.) Defendant argues the prosecutor improperly commented, over his objection, on defendant‘s claim to police about having a ―beautiful relationship‖ with the victims and his claim that he last saw Torey asleep and smiling. But we have allowed similar arguments that a defendant‘s untruthfulness and evasiveness demonstrated a lack of remorse. (People v. Boyette, supra, 29 Cal.4th 381, 455; People v. Holt (1997) 15 Cal.4th 619, 691.) Finally, nothing in the prosecutor‘s argument asked the jury to consider lack of remorse as an aggravating factor. Defendant faults the prosecutor for repeatedly arguing in the penalty closing argument that there was no evidence in mitigation. He claims, to the contrary, the record contained mitigating evidence and the prosecutor‘s argument was tantamount to an expression of his own personal belief and reference to matters outside the record. Although defendant objected to some of these comments , the objections were properly overruled as the remarks were fair comment on the evidence and were consistent with the prosecutor‘s claim that defendant did not suffer from any mental illness. (People v. Farnam, supra, 28 Cal.4th 107, 200

[prosecutor made fair comment on the evidence by describing defendant‘s ―case in mitigation as ‗garbage,‘ ‗a scam,‘ ‗obvious ploys,‘ ‗lies,‘ ‗baloney,‘ and ‗a fairy tale‘ ‖].) Defendant contends the prosecutor on two occasions engaged in ―paraleipsis:‖ stating one thing but suggesting the opposite. (See People v. Wrest (1992) 3 Cal.4th 1088, 1107.) Although defendant objected to the remarks, the court properly overruled the objections. On the first occasion, the prosecutor described defendant‘s assault on a fellow inmate and argued that the incident, in light of defendant‘s prior convictions, suggested a pattern of ―violence escalating‖; the prosecutor, however, corrected himself and said, ―I‘m not going to comment on this again, because I‘ve already referred to it as a prior felony conviction and you can‘t double count.‖ When defense counsel objected, the prosecutor again repeated, ―You can‘t double count,‖ and asked the jury to ―consider this one time and that‘s all.‖ There was nothing misleading in the prosecutor‘s statements, which merely clarified a passing reference to defendant‘s record of prior convictions. On the second occasion, the prosecutor described defendant‘s rape and beating of his ex-girlfriend and the effect of the murders on his brother, Artis Blacksher, Jr. The prosecutor noted that defendant‘s crimes had made each witness so angry at defendant that they wanted to kill him. Defense counsel objected, stating that Artis had only said he wanted to hurt defendant after the murders, not kill him. After the court overruled the objection, the prosecutor argued that it would not be fair for the jury to base its decision on anger, and although they were mad at defendant, ―[a]nger is not an appropriate basis for any decision in this case.‖ Defense counsel made no objection to these remarks and, even assuming the contention was not forfeited for appeal, the prosecutor was merely describing the impact of defendant‘s crimes, while also making clear that

Stanley permits but does not mandate the appointment of independent counsel when defense counsel and a defendant disagree on the defendant‘s competency. Moreover, unlike the present case, the conflict in Stanley was not restricted to defendant‘s competency ―because the root of the problem was defendant‘s refusal to permit mitigating evidence . . . .‖ (Stanley, supra, 10 Cal.4th at p. 806.) Accordingly, Stanley did not compel the trial court to appoint independent counsel to represent defendant with respect to possible competency proceedings. The Attorney General argues that the appointment of independent counsel was unnecessary because any ―conflict‖ here was illusory, reasoning that counsel does not act against a defendant‘s interest in pursuing a finding of incompetency even if it is against the defendant‘s wishes. We have previously articulated this same proposition, limiting its application to the stage where ―there has been a prima facie showing of incompetence . . . .‖ (Stanley, supra, 10 Cal.4th at p. 804; People v. Samuel (1981) 29 Cal.3d 489, 495 [―a section 1368 hearing is held only after there has been a prima facie showing of mental incompetence. Of necessity, therefore, defendant‘s attorney must play a greater role in making fundamental choices for him, and cannot be expected to seek approval of strategic decisions made in the course of obtaining and presenting proof of incompetence‖]; see also Shephard v. Superior Court (1986) 180 Cal.App.3d 23, 29 [―The rationale giving competent defendants ultimate authority over tactical decisions at trial, does not extend to this situation where defense counsel‘s duty to protect a prima facie mentally incompetent defendant requires contravening that defendant‘s tactical preferences‖]; People v. Jernigan (2003) 110 Cal.App.4th 131, 136 [―To permit a prima facie incompetent defendant to veto counsel‘s decision to argue that the client is incompetent would increase the danger that the defendant would be

People v. Blacksher

IN THE SUPREME COURT OF CALIFORNIA

I. FACTS AND PROCEEDINGS

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C. Penalty Phase

VII. CONCLUSION The judgment is affirmed.

CORRIGAN, J.

AI Brief