People v. Mendoza (62 Cal. 4th 856, 2016)

Opinion

CANTIL-SAKAUYE, C. J.

A jury found defendant Huber Joel Mendoza guilty of the first degree premeditated murders of Alicia Martinez, Carlos Lopez, and Carmillo (Camarino) Chavez (Pen. Code, § 187), and found multiple-murder special-circumstance allegations to be true (§ 190.2, subd. (a)(3)), as well as allegations that in each offense defendant used a firearm, inflicting great bodily injury or death. (Former § 12022.53, subd. (d).) The jury also convicted defendant of shooting at an occupied building. (§ 246.) Finally, the jury convicted defendant of assault with a firearm on Guadalupe Martinez (§ 245, subd. (a)(2)) and found true firearm use (former § 12022.5, subd. (d)), and great bodily injury (former § 12022.7, subd. (a)) enhancement allegations.

Prior to the guilt phase of trial, a separate jury returned a verdict finding defendant competent to stand trial.

Subsequent to the guilt phase of trial, a sanity trial was conducted and the jury returned a verdict finding defendant sane at the time of the offenses.

At the penalty phase, the jury returned verdicts imposing a penalty of death. The trial court sentenced defendant to death for the multiple murders and to a stayed term of 17 years in prison for the noncapital offenses and enhancements. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. FACTS

A. Guilt phase

1. Prosecution evidence

Defendant’s responsibility for the killing of three persons and injury of a fourth was not disputed. Evidence regarding the crime came principally in the form of testimony from the surviving victim, Guadalupe Martinez; from defendant’s estranged (and later divorced) wife, Cindi Martinez; from ballistics experts; and from items seized from defendant’s van and residence.

The evidence showed that about 3:00 a.m. on the morning of December 12, 2001, defendant arrived at the home of Cindi’s family in Modesto. Cindi did not live there, but her parents, Alicia and Jose Luis Martinez, younger sister Guadalupe Martinez, cousin Carlos Lopez, and Cindi’s boyfriend, Caratillo (known to the witnesses as Camarino) Chavez, did. Defendant was attired in a bulletproof vest, helmet, and camouflage pants, and was armed with three semiautomatic firearms and a large quantity of ammunition. After knocking off the handle of the front door with a heavy instrument, he broke the front picture window of the home and entered the living room. He fired multiple shots at Carlos Lopez, who had been sleeping on the sofa and fled as far as the nearby kitchen before defendant shot him to death.

Defendant proceeded down the hall to Camarino’s bedroom, where he shot through the door and then also shot Camarino at close range, killing him. Guadalupe testified that before hearing the shots in Camarino’s bedroom she heard defendant yelling that “you’re messing with the wrong guy” and that “you should not have messed around with a married woman.”

The flying bullets had penetrated Guadalupe’s bedroom and she found that she had been shot in the arm. Guadalupe, then 16 years old, cried out for her mother. Defendant called her name, asking if she was injured. He spoke in a normal tone, trying to convince her to open her door. Guadalupe refused, but then tried to open the door, which was jammed. Defendant directed her to move aside and he forced the door open. He instructed her to get on her bed and cover herself, but she refused, thinking he would kill her. He asked where her parents were. She responded that she did not know, but that her father might have left for work.

Defendant walked down the hall to the parents’ bedroom. He tried to convince Guadalupe’s mother, Alicia, to come out of the bedroom. When she refused, defendant directed Guadalupe to ask Alicia to open the door, promising not to hurt her. Guadalupe complied. The door opened, and Guadalupe saw defendant push Alicia down the hall to the living room. Alicia was weeping, asking what he was going to do to them, and asking him not to hurt Guadalupe. When defendant, Alicia, and Guadalupe arrived in the living room, defendant asked how Alicia could permit Cindi to see someone else while she was still married to defendant, especially to meet the man at her home. Alicia responded that she had told Cindi she did not approve of her relationship with Camarino, and would never approve of her starting another relationship when she was still married. Alicia told defendant she loved him. Defendant shot her in the head, killing her.

Defendant asked Guadalupe where her father was, and Guadalupe again said she thought he had left for work. Defendant searched the master bedroom, but did not find Jose Luis, who had fled outside.

Guadalupe then asked defendant to take her to a hospital for treatment. At first he tried unsuccessfully to telephone 911 on her behalf, then agreed to drive her to the hospital. They entered defendant’s van and drove away, but not in the direction of the hospital.

Defendant telephoned Cindi, who lived apart from defendant. Guadalupe heard him tell Cindi he had killed all of her family and that she would be next. Defendant’s oldest son called defendant back and asked him not to hurt Guadalupe. Defendant then drove to his brother’s house, stopping in front of the house and telephoning to say that he had committed a terrible crime and that he was going to leave the brother $11,000 in cash wrapped in a diaper. He threw a white diaper through the window and drove off, again not in the direction of the hospital.

Guadalupe repeatedly asked to be taken to a hospital. A bone in her arm had emerged through the skin. Defendant ultimately drove to the hospital, parked the van, and opened the door for her. She walked to the emergency room, where she was treated for severe gunshot injuries to her arm.

Guadalupe testified that she had liked defendant, who always had been nice to her, although he did not spend much time at family gatherings. Defendant spent most of his time with his sons, whom he referred to as his “angels.” Guadalupe explained that she had never seen him yelling before the night of the crimes, and even then, he acted normally when he spoke to her. She acknowledged that at the preliminary hearing she had testified that at the time of the crimes, defendant did not seem like the person she had known all her life, but that when they were in the van, defendant seemed to return to his more normal demeanor. She testified at trial that he started crying after speaking with his son and repeatedly apologized to her. He told her he wanted her to take care of his angels.

A uniformed hospital security guard, Eustaquito Ramos, testified that having been informed that a gunshot victim had been admitted and that the person who brought her could be in a van in the parking lot, he went outside to the lot. Defendant approached, asking to speak to him. Defendant stated that he had just shot his mother-in-law a few minutes earlier and wanted to turn himself in. He handed Ramos some handcuffs. When Ramos asked why this had happened, defendant said he did not want to say anything else. Defendant’s demeanor was cooperative and calm.

Ballistics evidence indicated that 73 rounds had been fired at the scene of the killings. There were fifteen 7.62-caliber rifle rounds outside the house in the flower bed. There was broken glass in the living room, the kitchen, and down the hallway. On a coffee table in the living room, officers found a Russian SKS 7.62-caliber assault rifle. The safety was off and the weapon had been fired until it was empty. There was an empty 30-round magazine clip inserted in the weapon. On a chair in the living room was a Ruger P-89 nine-millimeter semiautomatic handgun with a magazine holding 10 rounds. The slide was in a “clocked back” position and the weapon had been fired until it was empty. Also in the living room was a .45-caliber magazine for a Colt .45 handgun. The weapons and magazines all were empty. There were eleven 7.62-caliber rounds and one expended .45-caliber shell casing in the living room.

There were nine-millimeter shell casings in the kitchen and in the hallway, along with bullet holes in the walls. Seventeen rounds had entered Guadalupe’s bedroom. Thirteen bullets had been fired from outside Camarino’s bedroom into the room. In addition, seven nine-millimeter shell casings and two .45-caliber shell casings had been fired from inside Camarino’s room. Additional expended shell casings and bullets were found in the master bedroom.

When police officers searched defendant’s van after the crimes, they discovered a military-style helmet and two ballistic vests. A nine-millimeter magazine was on the floor in the front of the vehicle. Also discovered were a flashlight, nylon rope, handcuffs, a gas mask, a stack of photographs, an empty handgun case, and a sledgehammer. In the van, there was also a leather jacket with a roll of duct tape in the pocket. The Colt .45 handgun used in the crimes was also discovered in the van.

According to firearms expert James Hamiel, the three weapons used in the crimes were semiautomatic and had an average trigger pull.

After defendant was arrested, he was examined and found not to be under the influence of drugs or alcohol. When he was approached to undergo testing, he had his head in his hands, but his demeanor was “conversational,” he responded “appropriately,” and seemed to understand directions.

A search of defendant’s home disclosed boxes of ammunition along with sales receipts and licenses for the Colt .45 handgun, the Ruger nine-millimeter, and the assault rifle that were used in the murders. The weapons had been acquired legally some years prior to the crimes; the Ruger and the assault rifle were registered to defendant and the Colt .45 handgun was registered to Cindi Martinez. The house was in a state of great disorder.

Cindi Martinez testified, confirming that she received a phone call from defendant in the early morning hours of December 12, 2001. He said he had just killed her whole family. He said he was coming to her apartment, and she reminded him that the children were with her. She called her mother’s house and, receiving no answer, she called 911 and spoke to an operator. A transcript of the 911 call was received in evidence and the tape recording was played for the jury. Defendant also made another call to Cindi’s apartment and spoke to their oldest son.

Cindi was aware that defendant had firearms. He used a refrigerator in his bedroom to store the weapons and ammunition. She also knew defendant owned a helmet and ballistic vest resembling the items in evidence. They had been married about 15 years. Even before her recent departure from the family home, where defendant still resided, they had had separate bedrooms and had not been intimate for some time. There was also about $10,000 in cash in the family home. At the time of the crimes, defendant had not worked for five or six years. She worked two jobs and paid him to care for their three children.

On cross-examination, Cindi testified that defendant never threatened her or hit her, and she said that the tragedy came out of the blue. On redirect, she acknowledged they had argued and once he pushed her and put his hands on her throat. She denied telling police that defendant threatened that if she did not leave their house, he was going to kill her.

2. Defense evidence

The defense theory was that defendant had not premeditated the killings. In support, the defense introduced evidence involving an emotional encounter defendant had at his son’s school and an assertedly distressing visit to his home by school authorities shortly before the crimes.

On December 10, 2001, two days before the murders, defendant was at his youngest son’s elementary school wanting to take the boy home. (The couple’s three sons then resided with defendant.) The boy was in first grade and had been absent frequently. The school principal, Nancy Jones, testified that when she heard defendant was apparently in a distraught mood, she intervened. She urged defendant to let the boy stay, but he became more upset, saying that when children grow older they “sometimes became corrupt.” He said he did not want to leave his son at school, and that when children are young they are like angels but when they grow up they become corrupt. She recalled that he said the world was evil and he did not trust the government. He then started crying. She permitted him to take his son with him but planned to contact him because he seemed depressed and she was worried about his children. Jones testified that his son cried a great deal in school and for that reason had been sent home frequently. All of defendant’s children were good students and were well dressed and well behaved.

On the following day, December 11, 2001, Jones went with School Resource Deputy Sheriff Jaime Jiminez to defendant’s home for a meeting with defendant, Cindi, and their three sons, including the oldest, who then attended middle school. Jones and Jiminez tried to focus on the issue of school attendance, but defendant kept rambling about other issues, including his wife’s absence from the home and his desire that she return there. He was very upset and acknowledged having felt suicidal. Jones found the discussion strange. At one point Cindi commented that the couple had not had a real marriage for years and defendant said even though he did not love her, she should move back home. Jones thought the situation was serious and she had concerns about the boys’ safety. Defendant seemed depressed and angry. When he wept, the children were very loving to him. The oldest son behaved like a caretaker for his father. She asked defendant to let the children go live with Cindi, and in the end he agreed. They all departed and he was left alone.

School Resource Deputy Sheriff Jiminez testified about the December 11 home visit, explaining that he had telephoned defendant concerning his youngest son’s absences from school and defendant talked about his problems with his wife and children. Defendant spoke of mistrusting the government, the police, and the school district, which he considered corrupt. Defendant stated that he had a right to keep his son at home and disputed Jiminez’s advice to the contrary. Jiminez offered to look into counseling for him. When defendant asked that they meet at his home along with Cindi and the three children, Jiminez agreed. When Jiminez arrived for the meeting the house was tidy. Defendant talked about his marriage, his wife’s absence, and his children’s awareness of her boyfriend. Defendant was emotional and wept; it was very difficult to maintain his focus on the subject of his son’s school attendance. The children were clinging to him. When Jones asked defendant if he felt suicidal, defendant responded that he had felt that way from the age of 24, but had not acted because he had to raise his children. Jiminez offered to find defendant a divorced fathers’ support group, and defendant was receptive. Shortly after the meeting defendant telephoned him asking for information about the support groups, but Jiminez said he was still working on it.

B. Sanity phase

Dr. Pablo Stewart, a psychiatrist retained by the defense, evaluated defendant in the summer of 2003, meeting with him nine times over a period of two years. Dr. Stewart concluded that at the time of the crimes defendant was suffering from a long-standing and untreated major depressive disorder with psychotic features and that, although defendant was aware of the nature of his acts, he was not able to distinguish right from wrong during the commission of the crimes. Dr. Stewart believed that defendant began to be able to appreciate the difference between right and wrong while he drove his van away from the crime and spoke to his son on the telephone. The witness also believed defendant had been operating under a psychotic delusion that it was necessary to commit the crimes in order to protect his children from harm.

Dr. Robin Schaeffer, a clinical psychologist retained by the defense, met with defendant on 26 occasions beginning in July 2002 and continuing for more than three years. He agreed with Dr. Stewart’s diagnosis and conclusion that because of defendant’s mental illness, specifically his delusion regarding the necessity to act to protect his children from harm, defendant was not able to distinguish right from wrong when he committed the crimes.

Dr. Wendy Weiss, a clinical and forensic psychologist appointed by the court to evaluate defendant’s sanity, interviewed defendant on one occasion in July 2005. She diagnosed defendant as suffering from major depressive disorder with psychotic features but believed he had appreciated the nature of his acts and understood the wrongfulness of his behavior during the commission of the crimes. Thus she believed that he had been sane at the time of the crimes.

Dr. Jonathan French, a psychologist appointed by the court to evaluate defendant’s sanity, interviewed defendant in October 2005, diagnosing him with major depression, but he did not find any psychotic symptoms. Dr. French thought defendant was sane at the time of the crimes.

Dr. Philip Trompetter, a psychologist retained by the prosecution, had been present to observe the jail interview conducted on the morning of defendant’s arrest, and concluded that defendant was depressed. Dr. Trompetter did not observe defendant display psychotic features or evidence of delusions or hallucinations. He did not see any sign of major mental illness other than depression. He believed defendant was distraught. The witness would not expect to see symptoms of mental illness vary from hour to hour unless the person had been medicated. Dr. Trompetter spoke with defendant in jail the day following the interview and defendant stated he did not have hallucinations and denied suicidal thoughts, saying he was “mentally strong.” Defendant terminated the interview.

The jury viewed a videotaped recording of the interview conducted with defendant by Detectives Craig Grogan and Jon Buehler on the morning of defendant’s arrest, as well as recordings of defendant’s telephone conversations with relatives while he was in jail. (These, along with jail medical records and other materials, also were reviewed by the expert witnesses.)

At the beginning of the interview defendant asked for a hamburger, explaining that he had not eaten in three days. During the interview defendant admitted the acts demonstrated by the prosecution evidence, but stated that he believed his actions were made necessary by threats to his sons’ well-being posed by their grandparents and the presence of Camarino Chavez, his wife’s lover, in the grandparents’ home. Defendant said “they were taking my kids away, together with my wife” and he said that if she had been concerned for their children “how can you take them to that house, in your own parents’ house?”

The interview was marked by rambling statements about the nature of these threats and the need he felt to protect his children and all children from corruption. Defendant said he wanted to help the children and “[t]hat’s why probably [I] did what I did .... I can’t control what’s in me.” He said he was not crazy, but wanted to be with his sons, having “seen generations going down this little black hole, because their parents couldn’t take care of them.” He said he was “mad with [his] pain as a man” and that his wife’s affair hurt their children. Their sons saw her hugging “that man.” He said he had been out of his mind and “it was like thinking and not thinking” when he went to the scene of the shootings.

Defendant also made comments indicating that he felt he had been a coward previously. At intervals he wept and talked to himself. He did not deny that he had brought the weapons and protective gear to the scene. He added that he had no record of violence. He thought the men of the house would be armed. He just wanted to talk to his in-laws. He knocked on the door and got no answer. “Then I went back to the van, I got the rifle and I got [the pistols]” and the hammer. He knocked again, and someone cursed and told him to go away. He broke the window with his hammer in order to enter the house. He thought perhaps the man inside was pulling on his rifle. He started shooting as he entered. He explained that when he was denied entry he “lost [his] mind” and wanted to force the residents to talk to him. He had been upset and angry, feeling that his in-laws were against him. He felt psychologically threatened by them. He said he “never went with the intention of hurting nobody. I just wanted to make it stop

Defendant made statements indicating he knew that what he had done was wrong. (E.g., “Oh I know why I did, it was bad choice and its wrong for them [his children].”; “I love my kids and they deserve better. I mean I probably did the wrong thing.”; “[T]hey should have talked to me and I should ah, ah, never used a firearm, so just go away or, but I just kept doing it. I just kept doing it, because they were mak[ing] me upset, because they wouldn’t talk to me.”; “I know I did the wrong thing.”) He said, “I realize what I have done . . . but I just, I felt like that my kids needed me, sir. That’s why I haven’t killed myself because my kids need me.” He said: “And then [after] the first shot he just run away and I didn’t know exactly where, like I said I just lost control of myself and I felt like turning and I shouldn’t do that, I shouldn’t go in there for them with firearms, I understand that, but I was just, I was desperate and then I wanted to talk to them and ... I needed for them to stop what we’re doing, because I from bottom of my heart I knew that wouldn’t stop at all, but I still wanted to talk to them and they wouldn’t listen, I will do whatever it took.” When asked about the vest he explained ‘“the vest is ah, is because I say to myself okay, I love myself. I don’t wanna kill myself, but if I’m gonna die, I’m gonna take at least so many people with me, that much as I can, because [interruption].” He further explained: ‘“I just, I talk to myself a lot, I just said if I come to a point that I have to defend, defend, defend myself or, or, or just do something that probably look not good on me, but do something that is not go back again, like kill somebody I will just kill as much as I can and then they can kill me. Because I didn’t feel like staying this, this world. ... So when this guy run I started shooting like how you call it, random way.” He continued: ‘“I was so blind that I, my head, my head was like this ... ah I said what’s the point and ah I have been pushing myself to get to this point, well let’s go to the end.”

In the tape-recorded phone conversations with family members during the interview, defendant said he did not have bad intentions but that his children were being hurt and he could not take the pain and would fight for them. Defendant spoke with his oldest son during the police interview. The boy asked, ‘“Why did you do if?” and defendant answered, “T know my son, I’m not proud of it. I’m not proud of it my son, but, it was something that it had to be done. I wanted to protect you.” He went on: ‘“I don’t feel . . . proud of what I did. But uh, I just trying to do the best for you my son. ... I don’t want anyone to take your innocence.”

In subsequent phone calls to relatives, defendant continued the theme of the threat to the innocence of his children and his pain at his separation from them. He was particularly distressed that his children had witnessed their mother and her lover hug and kiss. He said he had done nothing wrong. His former sister-in-law Patricia Gonzalez, accused him of lying and pretending he was crazy. Defendant said: ‘“I am not crazy!” She suggested his attorneys were saying that he was. Defendant answered: ‘“Well, that is the attorney’s and the district attorney’s and all of us’s game . . . because we agreed. We are playing with that.” She said she knew he was sane, and defendant agreed.

The jury, after asking on several occasions that testimony be reread, concluded that defendant had been sane at the time of the crimes.

C. Penalty phase

Alicia’s daughters Patricia Gonzalez, Maria Pulido, and Guadalupe Martinez, and Alicia’s widower, Jose Luis Martinez, described the painful impact on them of her death, and that of Carlos Lopez on them and other members of the extended family. Patricia Gonzalez and Guadalupe Martinez also described murder victim Camarino Chavez’s good qualities. Guadalupe further testified concerning the trauma she experienced herself as a victim and witness of the crimes, and the ongoing difficulties she faced as a result.

Several of defendant’s siblings and persons who had known him from childhood in Mexico testified about the circumstances of defendant’s upbringing and his good qualities including kindness, especially with children. They described the changes in his personality from about 1998, when he became mistrustful and unhappy, and testified that they believed he was mentally ill when he committed the crimes. Defendant’s two older sons described the excellent, loving care their father had given to them, and expressed their love for him and their desire that his life be spared. Dr. Rodney Erwin, a psychiatrist, found defendant’s sons all very attached to him as their primary caregiver. Dr. Erwin recounted episodes in which defendant exhibited excellent parenting, adding that in his view, the boys had been able to overcome the trauma of the crimes. Dr. Pablo Stewart again testified that he believed the crimes were caused by defendant’s mental illness. Daniel Vasquez, a correctional consultant and former Warden of San Quentin Prison, described conditions in prison and opined that defendant was a model inmate and would not present a risk of violence in prison.

The jury returned a verdict of death.

II. ISSUES

A. Challenge to the competency verdict

In November 2003, Defense Counsel Kent Faulkner and Greg Spierling notified the court that they believed defendant was incompetent to stand trial. They added that Dr. Pablo Stewart, psychiatrist, and Dr. Robin Schaeffer, psychologist, had examined defendant at their request and concluded he was not competent. The court suspended proceedings pursuant to section 1368 and appointed Dr. Gary Zimmerman, a psychologist employed by the Department of Corrections who had performed hundreds of competency evaluations, to examine defendant. After various continuances, a jury was empaneled and a competency trial commenced in early December 2004. After several days of proceedings, the jury returned a verdict finding defendant competent to stand trial.

Defendant contends that there was insufficient evidence to support the jury verdict finding him competent, and that he therefore was denied rights under the state and federal Constitutions’ due process clauses. He also argues that the trial court employed the wrong standard when it denied his motion for judgment notwithstanding the jury’s verdict on competency. We are not persuaded.

1. Applicable law

“The United States Supreme Court has ‘repeatedly and consistently recognized that “the criminal trial of an incompetent defendant violates due process.” ’ [Citation.] A defendant is deemed incompetent to stand trial if he lacks ‘ “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [or] a rational as well as factual understanding of the proceedings against him.’ ” ’ [Citation.]” (People v. Lightsey (2012) 54 Cal.4th 668, 690 [143 Cal.Rptr.3d 589, 279 P.3d 1072] (Lightsey).)

“The applicable state statutes essentially parallel the state and federal constitutional directives. Section 1367, subdivision (a) provides: ‘A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’ ” (Lightsey, supra, 54 Cal.4th at p. 691; accord, People v. Jablonski (2006) 37 Cal.4th 774, 808 [38 Cal.Rptr.3d 98, 126 P.3d 938].)

When the defendant puts his or her competence to stand trial in issue, the defendant bears the burden of proving by a preponderance of the evidence that he or she lacks competence. (§ 1369, subd. (f); People v. Ary (2011) 51 Cal.4th 510, 518 [120 Cal.Rptr.3d 431, 246 P.3d 322]; People v. Dunkle (2005) 36 Cal.4th 861, 885 [32 Cal.Rptr.3d 23, 116 P.3d 494], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11]; see Medina v. California (1992) 505 U.S. 437, 446 [120 L.Ed.2d 353, 112 S.Ct. 2572] [this burden of proof does not offend federal constitutional principles].)

We apply a deferential substantial evidence standard of review on appeal. “In reviewing a jury’s determination that a defendant is competent to proceed to trial, we give due deference to the trier of fact, and therefore view the record in the light most favorable to the verdict.” (People v. Frye (1998) 18 Cal.4th 894, 1004 [77 Cal.Rptr.2d 25, 959 P.2d 183] (Frye); accord, People v. Marshall (1997) 15 Cal.4th 1, 31 [61 Cal.Rptr.2d 84, 931 P.2d 262] (Marshall); People v. Samuel (1981) 29 Cal.3d 489, 505 [174 Cal.Rptr. 684, 629 P.2d 485] (Samuel).) When the sufficiency of the evidence to support the verdict is challenged, our review is limited to the evidence presented at the competency trial. (People v. Marks (2003) 31 Cal.4th 197, 219, fn. 3 [2 Cal.Rptr.3d 252, 72 P.3d 1222] (Marks).) As we shall explain, we believe that the verdict of competence was supported by substantial evidence.

2. Facts

a. Defense evidence at the competency tried

The defense sought to carry its burden of proof through testimony of mental health experts who testified regarding defendant’s mental illness, his religious preoccupation, and his asserted inability to engage rationally with the experts regarding the offenses or the trial. The court-appointed expert, Dr. Zimmerman, testified that as a result of his November 2003 examination of defendant, he believed defendant was incompetent. Dr. Zimmerman believed defendant was then suffering from depression that made him “seriously impaired” and in fact so indifferent to the trial that he could not “rationally work with his attorney” to assist in the preparation and presentation of his defense. According to Dr. Zimmerman, defendant refused to discuss the facts of the case and did not appear to be exaggerating his symptoms.

On the other hand, Dr. Zimmerman found that defendant was not delusional and reported that defendant did not break down in tears and was not then taking medication. Dr. Zimmerman testified that defendant said he was able to talk to his attorney about the case and he understood that he was charged with murder and was facing the death penalty.

Dr. Pablo Stewart, the psychiatrist retained by the defense, had served as a consultant under appointment in federal courts and was also employed by the Haight-Ashbury Free Clinic in San Francisco. He testified that when, in November 2003, he interviewed defendant and administered the MacArthur Competency Test, it was evident to him that defendant was then incompetent. At that time he displayed “amazing” mood fluctuations and, moreover, when Dr. Stewart tried to direct defendant’s attention to questions concerning defense counsel and the function of the court, defendant supplied no focused answers. Rather, defendant at first appeared to speak to the questions, but quickly rambled away from the point to discuss generalities and religious concerns. At that time he scored very poorly in each element of the MacArthur Competency Test. Dr. Stewart testified that not just in November 2003 but also in subsequent interviews in February, April, July, and November 2004, defendant started to reply to questions but quickly moved on to statements expressing delusions focusing on religion and exhibiting paranoia, including fears directed toward defense counsel.

Dr. Stewart believed that defendant suffered from a long-standing severe mood disorder, namely depression, which included psychotic features. In Dr. Stewart’s later interviews with defendant, the mood disorder endured and the psychotic symptoms became, “if anything,” worse. Whereas in November 2003 Dr. Stewart believed defendant was aware of the seriousness of the charges, in November 2004 this was no longer the case and, in Dr. Stewart’s view, defendant did not appear to understand what the charges were. Defendant responded to questions about the charges by discussing unconnected topics. In the November 2004 interview, Dr. Stewart observed Defense Counsel Spierling attempt to ask defendant a few routine questions, but noticed that defendant did not “interact” with counsel. Dr. Stewart concluded that because of the depression with psychotic features, defendant was unable to evaluate witness testimony or help select a jury, that he had no insight regarding what led to the crimes, nor could he help counsel develop the case in mitigation.

Dr. Robin Schaeffer, the clinical psychologist retained by the defense, conducted a taped competency evaluation interview with defendant just a few days before the competency trial. Dr. Schaeffer concluded defendant was not competent to stand trial. The witness testified that in his opinion, defendant suffered from a psychotic thought disorder, that when he needed to answer questions concretely or specifically, he answered them very generally and rambled, and that his mental illness rendered him unable to think in a logical way. The witness also concluded that because of the psychosis, defendant had “delusional grandiosity,” a paranoid level of distrust, and a sense that the trial was “unreal and did not matter.” According to Dr. Schaeffer, defendant’s preoccupation with general religious thoughts made him unable to respond to questions with any specific answers, and caused defendant to believe that the actual trial was not his true trial. For these reasons, the witness believed, defendant would be unable rationally to assist counsel in his defense, make decisions about testifying or waiving jury trial, understand a plea negotiation, or assist in formulating a defense at the guilt or penalty stages of the trial.

Dr. Schaeffer acknowledged that sometimes defendant was able to answer questions, that defendant sometimes “can be of some assistance to counsel,” and that many of defendant’s responses were not completely irrational. The witness testified that, nonetheless, the overall interview demonstrated defendant’s inability to stay on track in a manner that would be sufficient even if the charges had been much less serious, because defendant “can’t with any consistency be rational, because his brain repeatedly throws him into the abstract . . . and causes him to ramble.”

A recording of Dr. Schaeffer’s December 2004 interview with defendant was played for the jury and a transcript was admitted into evidence. The tape recording exhibited defendant’s rambling, disconnected answers to questions, as well as his distrust and his religious preoccupation. His answers evinced some understanding of the proceedings but an aversion to engaging with them.

The defense also presented testimony by Robert Wildman, an experienced criminal defense attorney who was not involved in the case. He described the impediments to a defense counsel’s performance that would arise when a defendant’s mental state prevented him or her from assisting counsel in various ways.

b. Prosecution evidence at the competency trial

The prosecution presented expert testimony and other evidence suggesting that defendant had the capacity to engage rationally in the defense, but chose not to do so. Dr. Gary Cavanaugh, a psychiatrist in private practice who also had a substantial forensic practice and taught at the University of California, Davis, was retained by the prosecution. He testified that based on his February 2004 interview with defendant, he found defendant competent to stand trial at that time. Dr. Cavanaugh reviewed the earlier written reports by Drs. Schaeffer, Stewart, and Zimmerman, along with jail mental health records, police reports, the transcript of the interrogation of defendant in jail, and recordings of defendant’s recent phone conversations. Dr. Cavanaugh believed defendant was capable of understanding the nature of the proceedings and assisting counsel in the defense. In forming his opinion, the witness relied in part on defendant’s answers to questions regarding his orientation to time and place, and on his ability to make abstract determinations and engage in higher levels of thinking, both inconsistent with severe mental illness. Dr. Cavanaugh also based his opinion on defendant’s statements concerning the function of persons involved in the legal proceedings, especially defense counsel and the prosecutor.

Dr. Cavanaugh noted defendant’s preoccupation with religion but did not find it delusional in the sense of being a fixed false belief that does not relate to a person’s culture and is not modifiable by reason. Rather, Dr. Cavanaugh found the religious preoccupation authentic. Dr. Cavanaugh believed defendant had grasped examples he had given of alibi, mistaken identity, or mistake of fact defenses, although defendant quickly moved on to his preoccupation with God in responses to questions about defenses. Dr. Cavanaugh found that the religious preoccupation got in the way of defendant’s responses, but that if questions were posed repeatedly in different ways, defendant usually responded. Dr. Cavanaugh acknowledged that there were some things defendant did not want to talk about, especially past history that involved negative material, but the witness testified that he believed defendant had the mental capacity, if not subjective willingness, to discuss the issues and to assist his attorneys in conducting his defense.

Dr. Cavanaugh believed there was not substantial evidence that defendant suffered from a current major mental illness or delusion at the time of the interview, diagnosing instead a mood disorder, most likely major depressive disorder, possibly with psychotic features, that was currently in substantial or complete remission. Defendant did not show many, if any signs of depression although he displayed the personality disorders of paranoid and narcissistic traits. Defendant was “cognitively intact” and had a good memory.

On cross-examination, Dr. Cavanaugh testified that he had performed many competency exams, and in the vast majority he has found the defendant incompetent to stand trial, mostly because of psychosis.

Dr. Cavanaugh also acknowledged he had interviewed defendant only once, in February 2004, that his opinion concerned defendant’s competency at that time, and that he did “not have a current opinion about [defendant’s] competence.” Dr. Cavanaugh also acknowledged that during the interview, when defendant became less responsive he mostly turned to “high levels of abstraction about God and religion.”

On redirect examination, Dr. Cavanaugh explained that in his opinion, defendant’s reference to hearing God’s voice was consistent with religious fervor, not hallucination. Dr. Cavanaugh considered some of defendant’s responses evasive. It seemed to him that it was questions about the crime or other negative matters that caused defendant to launch into religious speeches.

A transcript of a recording of Dr. Cavanaugh’s tape-recorded interview with defendant was admitted in evidence and the tape was played for the jury. It plainly demonstrated defendant’s intact memory as well as his repeated express refusals to discuss the crime, his personal history, or any other matters he considered “negative.” It also illustrated his settled view that the temporal trial was insignificant compared with God’s judgment.

The transcript also reflects, however, that defendant understood he had counsel, and that their job was to help him. When asked how counsel would help him, he said they were representing him. He said the prosecutor was against him, and the judge was “monitoring what’s going on.” When asked what happens to someone who is found guilty in court, defendant said, “I don’t want to discuss that.” He entered a not guilty plea because he had been told to, but he repeated that God was the true judge. Defendant had heard his might be a death penalty case, but he didn’t worry about it, trusting instead in God. He also trusted his attorneys, but said he wanted his attorneys just to leave things in God’s hands. He didn’t want to talk about what had happened, or about feeling suicidal, or about his work life, or about how people might have done bad things to him. He added, “You seem to care what happened in all my life ... I just don’t want to remember it .... I’m really wanting] to forgive

Defendant described a witness as “a person who sees something and says that this happened or that happened.” He described a jury as “people up there that is trying to see how you are, the person who’s being tried, and what happened and they are who decides if that person [did?] something that is completely wrong . . . .” When asked what a lawyer should do for a client who said he was not at the scene of the crime, he said, “I’d just tell the truth,” and that “obviously he would tell them he was somewhere else .... [t]he lawyer [would] tell the truth that he wasn’t there.” When asked how he, if he were the lawyer, would prove the alibi, he said, “Investigate it . . . get the real facts.” When asked what a lawyer should do for a client who said he was present at the crime but it was another person who committed the crime, he said, “I guess he has to prove that he was there but he didn’t do it.” When asked what the lawyer should do for a client who said he was at the scene, but that the victim was lying about what he did and a witness had been present, defendant said “they all have to prove, I guess, what really happened, and that’s here and now.” He immediately went on to state his view that “we’ve got nothing to prove against God .... He can prove a lot of stuff against us . . . [b]ut I’m willing to accept . . . whatever it is that He has for me. It doesn’t matter what it is, I’m trusting him and I want to go His way .... That’s why I’m chained up.”

The prosecution also presented evidence that some months subsequent to the Cavanaugh interview, on May 30 and June 1, 2004, defendant engaged in telephone conversations with his sons, with Cindi (by the time of trial no longer his wife), and with his former sister-in-law, Patricia. In the taped conversations with his sons, he opened with practical and entirely rational inquiries, including questions concerning whether the house had been painted, his sons’ friends, eating habits, and daily activities, as well as directives regarding their relationships with Cindi’s new boyfriend, Jesus. For example, he said: “Listen son, I just talked with that . . . that Jesus. He says that he supports you and that the phone is [in] his name, and that is why I should not be bothering no one, and all of that. I do not need to be listening to his nonsense. I told him to go and fuck his mother. Soon things are going to be fucked up for him. He does not have to go around pulling this kind of shit. Son, I told him to stay away from you guys. If you want to be with him . . . very well, I have to respect that. I am only telling you to take care, not to be with those people. I am telling you, the only thing that they are going to do is harm you. Because the only thing that they are doing ... is for their convenience, ok my love.” In conversation with Cindi, he directed her not to interfere with his relationship with his sons and to keep them away from Jesus, and he threatened her with violence if she failed to abide by his wishes in this respect.

In the phone conversation with Cindi’s sister, Patricia Gonzalez, defendant debated some of the circumstances of the charged offenses, suggesting she and the rest of Cindi’s family bore some responsibility for the crimes because they had failed to help him when he was distressed, or to intervene in Cindi’s relationship with Camarino Chavez, a relationship defendant insisted had been conducted at his mother-in-law’s home under his sons’ eyes.

As noted in connection with the sanity phase evidence, when defendant told Patricia not to lie or engage in hypocrisy, Patricia said he was the only one who was lying, by saying he was crazy. Defendant said he was not crazy. Patricia said his attorneys were saying that he was, but defendant responded: ‘“That is the attorneys’ and the district attorney’s and of all of us’s game . . . because we agreed. We are playing with that.” He concluded with more complaints about not being in contact with his children, and talked about God and death as offering peace.

The prosecution also presented testimony by Dr. Trompetter, the clinical psychologist retained by the prosecution. He had observed defendant at the police station on the morning after the murders. Dr. Trompetter witnessed the police interrogation of defendant and saw no sign of psychosis or delusion. In addition, Calvin Watson, a custodial deputy with the Stanislaus County Sheriff’s Department, testified he had brief conversations with defendant when passing by his cell. Watson’s last contact with defendant was seven months to one year prior to the competency trial. According to Watson, defendant was able to communicate his needs, for example, asking for a cell change or responding to simple questions. Defendant had been in the jail approximately three years and had not been a problem inmate. Watson’s longest conversation with defendant was about two minutes. Finally, Debbie Mandujamo, a psychiatric nurse working in the Stanislaus County jail, testified that jail records indicated the last time defendant was seen by mental health workers at the jail was September 26, 2003, more than one year prior to the competency trial but shortly before Dr. Stewart’s and Dr. Zimmerman’s competency examinations. At that time defendant was not taking medications, nor had any medication been prescribed subsequently. She had no recollection of having difficulty communicating with him.

3. Discussion

Defendant argues that he made a “strong evidentiary showing” that he was incompetent at the time of the competency proceeding, and that his evidence was unrefuted because the prosecution evidence was stale and otherwise unconvincing or incomplete.

Defendant presented considerable evidence of incompetency, but we disagree with his assertion that his evidence was unrefuted. We view the evidence in the fight most favorable to the verdict of competency. That verdict is supported by substantial evidence that defendant was not suffering from a mental illness that deprived him of the ability to consult rationally with counsel or to understand the proceedings. Dr. Cavanaugh, a qualified expert who had performed hundreds of competency examinations, was of the opinion that defendant was competent prior to the competency hearing. The witness did not believe that defendant was then suffering from a major mental illness or personality disorder, and believed he was capable of logical and rational thought. Dr. Cavanaugh acknowledged defendant’s religious preoccupation, but did not believe it proceeded from a mental defect or delusion but was an example of authentic religious fervor—a phenomenon he said was not unusual in prisoners facing trial for serious crimes. In addition, the jury could have credited the statement that defendant made to his former sister-in-law, Patricia, that the claim of his insanity was just a game he was playing with defense counsel. The comments provided potentially persuasive evidence for the jury to conclude defendant was, at least to some degree, feigning mental illness.

Defendant contends there was absolutely no evidence that he was able to assist counsel in the defense. We do not agree. Dr. Cavanaugh drew defendant into a discussion of hypothetical defenses and defendant was able rationally to respond to questions concerning what defenses should be mounted by defense counsel under the various hypotheticals presented. In addition to this evidence of his ability to understand how an accused would work with counsel to develop a defense, there was supporting opinion evidence from Dr. Cavanaugh that defendant’s reluctance to discuss the facts of his own case or even his personal history—a serious impediment to the defense, without doubt—arose from an unwillingness to engage, rather than an inability to do so based upon mental disease or defect.

As Dr. Cavanaugh commented, and our review of the record confirms, defendant made statements indicating that he did not wish to discuss the painful facts of the crime or of his own past—but the evidence supports Dr. Cavanaugh’s opinion that defendant was unwilling rather than unable to discuss them. Voluntary barriers to communication with counsel on the part of a defendant who was able to cooperate do not demonstrate incompetence. (See Marks, supra, 31 Cal.4th at p. 207.)

Defendant’s own responses during the interview with Dr. Cavanaugh further support the conclusion that defendant understood the nature of the proceedings. They indicated an understanding of the function of the judge, the jury, the prosecutor, and the defense attorneys, as well as defendant’s understanding of what would be involved in developing various defenses along with his attorneys and that he had been charged with a capital crime. Moreover, even in the interview with defense expert Dr. Schaeffer shortly before the competency trial, defendant gave answers that revealed some basic understanding of the charges, of plea bargaining, and of the function of the trial and its major participants. He indicated that his counsel were on his side in the courtroom, that a witness would be there to speak under an obligation to tell the truth, and expressed the belief that the prosecutor, the judge and the jury were against him. Defendant stated furthermore that he wanted to convince the jury of his innocence.

Defendant argues that no weight should be given to Dr. Cavanaugh’s opinion that defendant was able to cooperate with counsel in developing and presenting the defense because the opinion was contradicted by defendant’s answers during the interview, answers that emphasized the dominant role of God in determining his guilt or innocence and defendant’s confusion about the process. We are not persuaded. Rather, we draw reasonable inferences in favor of the verdict. The jury reasonably could credit Dr. Cavanaugh’s explanation that defendant’s religious preoccupation was not a product of mental illness but of sincere religious enthusiasm, and the expert’s explanation that defendant was not unable but rather was choosing to avoid discussion of the crimes, his personal history, and any other negative material.

Defendant challenges the evidentiary value of Dr. Cavanaugh’s testimony, claiming “lack of preparation, inadequate foundation, and consequent lapses in reasoning.” Defendant’s complaints that the asserted failure to conduct a “proper” competency evaluation goes solely to the weight the trier of fact would afford the witness’s testimony. Dr. Cavanaugh was qualified and experienced in performing competency examinations, as the defense did not deny at the trial. He had reviewed the reports of Drs. Schaeffer, Stuart, and Zimmerman, photographs, jail mental health records, a videotape of defendant following his arrest, a transcript of defendant’s police interrogation, recordings of recent phone conversations, and copies of crime reports, as well as mental health records provided by the defense.

Nor does defendant demonstrate that the witness—who had qualified many times as a competency expert—failed to meet generally accepted minimum standards for a competency interview. (See People v. Stanley (1995) 10 Cal.4th 764, 811-812 [42 Cal.Rptr.2d 543, 897 P.2d 481].) Dr. Cavanaugh explained his professional opinion that the standardized competency examination used in 2003 by Dr. Stewart gave many unreliable results indicating incompetency on the part of persons he believed to be actually competent. He also pointed to evidence that defendant’s cognitive functioning, including memory, ability to make abstract determinations and engage in higher level thinking, was quite intact. Dr. Cavanaugh believed that defendant’s ability to discuss his own personal history also indicated his ability to assist counsel.

Defendant argues that the evidence provided by Dr. Cavanaugh was stale and therefore of little or no probative value on the question presented to the jury, namely, defendant’s competence as of the time of the competency proceeding. He points out that Dr. Cavanaugh’s interview occurred 10 months before the competency hearing and did not purport to render an opinion concerning his competency at the time of the hearing.

The lapse of time between Dr. Cavanaugh’s interview and the competency trial does diminish the probative value of the expert’s opinion and testimony to some extent, since the issue before the jury was defendant’s current competency. Yet the jury reasonably could draw inferences concerning defendant’s competency at the time of the competency trial from Dr. Cavanaugh’s observations and from the statements defendant made to him, as well as from the defense evidence itself.

First, the statements defendant made to Dr. Cavanaugh concerning defense counsel and his own understanding of the proceedings bore marked similarities to his statements during the interview with the defense expert, Dr. Schaeffer, just prior to the competency hearing, supporting the inference that his condition was similar at both times, and that on each occasion he had sufficient ability to rationally consult with his lawyers and understand the proceedings. In the Schaeffer interview, defendant said he wanted his lawyers to argue at the trial that he was innocent, that he “didn’t want to harm anybody,” and that he “didn’t understand that [he] was hurting the people that [he] most loved,” including his wife’s family. He knew the names of his lawyers and said, at one point, that they were on his side in the courtroom. He certainly resisted the idea that a secular trial had any legitimacy, in contrast to a trial by God—just as he had with Dr. Cavanaugh—but Dr. Schaeffer was able to focus his attention on the potential that he might testify, and defendant gave somewhat coherent answers concerning whether he was carrying money on the night of the crimes and whether he transported an injured girl to the hospital ‘“[t]o help her so she could be okay.” He exhibited some understanding of the possibility of a plea bargain, and seemed to understand the difference between a short and a long term in prison. He told Dr. Schaeffer that he ‘“guessed” he knew what he was doing the day of the crimes, adding that he had gone to his mother-in-law’s house that day. Defendant specifically informed Dr. Schaeffer that he believed he could tell his lawyers what had happened on the day of the crimes.

Moreover, the features of defendant’s responses that caused Dr. Stewart to believe in 2003 and throughout 2004, and Dr. Schaeffer to believe in December 2004, that defendant was incompetent also appeared in Dr. Cavanaugh’s February 2004 interview. Dr. Cavanaugh simply drew a different conclusion from what ultimately was relatively consistent evidence. Specifically, the defense experts interpreted defendant’s religious preoccupation and his rambling away from any discussion of the facts of the crime and his own biography as indicators of defendant’s disease-based inability to work with counsel in any rational manner. Dr. Cavanaugh, by contrast, saw similar manifestations of religious preoccupation but did not believe they were a feature of a mental disease. He viewed defendant’s reluctance to answer specific questions and his rambling when pressed on the facts of the crime or his own mental condition as demonstrating an unwillingness but not incapacity to answer painful questions. Defendant’s remarks to the expert certainly could be interpreted to support such an inference, and the jury reasonably could have adopted Dr. Cavanaugh’s view. And as the People also point out, the jury was not required to accept the conclusion of the defense experts. (Marshall, supra, 15 Cal.4th at p. 31.)

We also observe that the defense itself relied in substantial part upon evidence from as early as November 2003, several months before the Cavanaugh interview, including testimony by Dr. Stewart concerning results of a standardized test the defense faulted Dr. Cavanaugh for failing to administer. As defendant must acknowledge based on his own reliance on evidence long predating the competency trial, evidence that predates that hearing may legitimately provide substantial evidence on the competency issue before the fact finders.

Finally, the fact finders had additional evidence supporting Dr. Cavanaugh’s conclusion in the form of the jailhouse phone calls that occurred some months after the Cavanaugh interview. From these the jury reasonably could draw the inference that defendant’s condition was not growing worse over the months just preceding the competency trial as the defense argued, but that he retained the ability, when he wished, to engage in rational discussions regarding daily life and various personal matters with his sons and with Cindi Martinez, and concerning the crime and the defense with his former sister-in-law, Patricia Gonzalez. This evidence also tended to support Dr. Cavanaugh’s view that defendant’s reluctance to engage with the trial proceedings or discuss the facts of the crime were matters of choice, not an incapacity caused by mental illness. There was also evidence, through defendant’s statements to Patricia about his “craziness” being a “game,” that defendant was to some extent feigning mental illness. The jury had additional evidence from other witnesses that defendant’s mental condition did not worsen sufficiently to require administration of psychotropic medication.

Defendant also argues that testimony from jail staff and Dr. Trompetter was not probative of his competency at the time of the competency proceedings. We tend to agree that Dr. Trompetter’s testimony concerning the jailhouse interview was less probative, given its remoteness in time. The jail staff evidence, on the other hand, supplied some corroboration for Dr. Cavanaugh’s view that at the time he interviewed defendant, defendant was not suffering from a major psychiatric problem and that at least during 2003 and the first half of 2004—at a time Dr. Stewart and Dr. Schaeffer firmly believed defendant already was incompetent—defendant was able to function normally in the jail and was not receiving medication for mental disease.

Under the circumstances, we cannot accept defendant’s argument that his case is comparable to the Samuel case. (Samuel, supra, 29 Cal.3d 489.) In that matter, the defense evidence of incompetence was overwhelming; moreover, it was essentially uncontradicted by any prosecution evidence. “Five court-appointed psychiatrists, three psychologists, a medical doctor, a nurse, and three psychiatric technicians testified to Samuel’s incompetency, and four psychiatric reports were admitted into evidence. [Citation.] Each witness and every report concluded Samuel was incompetent to stand trial. [Citation.] In response, the prosecution offered no expert testimony and only two lay witnesses, neither of whom contradicted any of the defense testimony. [Citation.] .