People v. Townsel (63 Cal. 4th 25, 2016)

Opinion

WERDEGAR, J.

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

We reverse the conviction for dissuading a witness, vacate the witness-killing special-circumstance finding, and otherwise affirm the judgment.

I. Factual And Procedural Background

A. Guilt Phase

In September 1989, Martha Diaz and her son Andrew were staying in the home of her sister, Teresa Martinez, on Saunders Road in Madera. Also living there were Teresa’s husband, Mauricio; their two children; and Mauricio’s friend Luis Anzaldua. Mauricio’s parents and siblings lived in the house next door. Diaz was six months pregnant with defendant’s child.

On September 18, 1989, defendant came to Teresa’s house and spoke with Diaz about the baby. The conversation was not amicable.

On the evening of September 21, 1989, defendant encountered Luidivina Hernandez, a mutual friend of his and Diaz’s. He asked her if she had seen or spoken to Diaz, and whether Diaz had said anything about him. Hernandez acknowledged having seen Diaz and told him Diaz had said only that they were having problems. Defendant told her he wanted nothing further to do with Diaz or the baby, and that if he could not have her, neither could anyone else.

About 10:00 the following morning, defendant and a companion pulled up to Teresa’s house in a brown car. Defendant got out, handed Teresa an envelope containing a letter, and angrily told her to tell Diaz she had better stay in the house. After he drove away, Teresa showed Diaz the envelope and letter, which was dated September 20, 1989, and addressed to defendant from the Madera Justice Court. It informed him that a criminal complaint charging him with a violation of section 273.5 (battery or willful infliction of injury on a spouse or cohabitant) was on file against him and directed him to appear in court on November 7, 1989.

About 5:00 that evening, Teresa, Diaz, and their children, along with Luis Anzaldua, were sitting in front of Teresa’s house. Mauricio’s brother, Rene, was near an ice cream truck parked between Teresa’s house and his residence. Defendant and a passenger pulled up in a gray Cadillac. From the car, defendant made a hand gesture like a pistol, yelled at Diaz to get back in the house and that “your ass is mine after the baby is born,” and drove away.

Three hours later, around 8:00 p.m., Teresa and her family, including Diaz, along with Rolando Martinez and Luis Anzaldua, were in her house when they heard gunshots outside. Rene and his sister Valerie, next door, also heard the gunshots. Rene and Valerie went to the window and saw defendant shooting a handgun in the air before getting into a gray Cadillac and driving away. After the shooting, family members collected shell casings from the street and gave them to Madera County Sheriff’s Deputy Gerald Stephen Kirkland, telling him defendant was the shooter.

Still later that night, around 11:00 p.m., Rene, Rolando, and Anzaldua heard more gunshots outside their houses. Rene and Rolando saw shots being fired from the passenger window of a moving gray Cadillac. Rolando saw two figures in the car, which drove away at a high speed without stopping. Deputy Kirkland again responded to the family’s call to the police, and collected more shell casings. Bullet holes were later seen in the garage door and a window of Teresa’s house.

About 11:30 the next morning, Anzaldua, Diaz, and Andrew were driving in Anzaldua’s car. Stopping at an intersection, they noticed two men standing near a gray Cadillac parked at a gas station. Frightened, Diaz said, “There he is.” Anzaldua understood her to be referring to defendant. One of the two men got into the driver’s seat of the Cadillac.

Believing he was going to be chased, Anzaldua drove into town, going as fast as 70 miles per hour. The Cadillac followed, matching his speed. As Anzaldua neared the local sheriff’s station, the Cadillac crashed into a fire hydrant. Anzaldua and Diaz got out of his car and tried to enter the station, only to find the front and back doors locked. Seeing a tall, dark-complected man wearing a white T-shirt and blue pants walking toward them, Anzaldua, who had worked in the station as a janitor, led Diaz to the basement. There they hid for about 10 minutes before going upstairs, where they told the deputy on duty what had happened. The deputy informed them a suspect was already in custody at the crash site. Anzaldua and Diaz went to the site and saw a Mexican male in custody. Anzaldua and Diaz then returned to their residence, and Anzaldua went to Rene’s house next door to visit.

The same day, between about 12:30 and 12:45 p.m., Teresa and Diaz were in the living room of Teresa’s home with their children and Mauricio was in the master bedroom. Anzaldua and Mauricio’s siblings Rene, Valerie and Marybell were next door at Mauricio’s parents’ home. A neighbor, David Sepulveda, saw a gray car, possibly an LTD or a Thunderbird, park next to his fence. A Black man he later identified as defendant exited the passenger side of the car, which drove away. In Teresa’s house Diaz, seeing defendant approach, picked up her son and ran from the living room. Teresa stepped toward the front door intending to ask defendant what he wanted with Diaz. Defendant opened the door and entered, a gun at his side in his left hand, and Teresa froze. Defendant looked at her without saying anything and walked down the hallway, bumping into Mauricio, who had emerged from the bedroom. Defendant raised his gun and fired twice, hitting Mauricio in the chest. Defendant continued toward the master bedroom, stopping in the doorway to fire three shots in rapid succession. Teresa fled to her in-laws’ house next door.

Inside the in-laws’ house, Rene, Valerie, Marybell and Anzaldua heard shots being fired. Sepulveda also heard the shots from inside his home and told his wife to call 911. Rene, Valerie and Marybell ran outside and met Teresa, who told them the shooter was defendant. All four took refuge in the in-laws’ house, but Teresa soon became concerned about her child, who was still in her house. She started to leave the in-laws’ house, but just then defendant left Teresa’s house, firing his gun in the air, and approached the in-laws’ house. Rene retrieved his rifle and loaded it as Teresa called 911. He and Teresa went to the open garage door and saw defendant walk toward Raymond Thomas Street, which intersects Saunders Road, and fire into the gas tank of Anzaldua’s car, parked in front of Teresa’s house. Rene took aim and shot defendant in the back of the neck. Defendant fell and crawled some distance before collapsing.

Teresa and Rene ran back to her house and found Mauricio lying prone on the front porch. Inside the house, Rene found Diaz in the master bedroom with bullet holes in her face and neck, her son standing in front of her crying.

When Sergeant Bob Holmes of the Madera County Sheriff’s Department arrived on the scene, defendant was lying supine on the ground, holding a nine-millimeter Taurus semiautomatic handgun with the hammer cocked and ready to fire. Sergeant Holmes kicked the gun out of his hand. Defendant identified himself and said he was the shooter. Madera County Sheriff Glenn Seymour arrived shortly after Sergeant Holmes and remained with defendant while Holmes investigated. Sheriff Seymour asked defendant what was going on. Defendant replied: “I did it. There’s no one else to worry about.” David Sepulveda approached the sheriff and told him defendant was the shooter. Defendant told Sepulveda to shut up, adding, “or you will get it, too.”

Teresa Martinez approached defendant as he lay on the ground and asked, “Why my husband?” Defendant indicated he was not through yet and “Morris” was going to “come and finish you off.” As paramedics were attending to him, defendant said, “I was paid to do a job and I did it.”

Autopsy results showed that Mauricio had been shot twice. One bullet, fired at close enough range to leave powder residue and tattooing on the left side of his face, entered near the right armpit and exited on the right side of the chest without hitting any vital organs. The second, fatal bullet entered the upper right shoulder, moving in a downward trajectory to strike a pulmonary artery within the lower lobe of the right lung and passing through the thoracic aorta, striking the left kidney, and exiting the left flank. Mauricio would have been crouched very low or bent at the waist when this second bullet entered, consistent with his having assumed a defensive posture.

Diaz had been shot five times, suffering wounds to the upper right thigh, right arm, left ear, nose, and the nape of the neck. The latter two wounds, which were fatal, fractured the base of her skull and caused a brain stem concussion. Her six-month fetus appeared normal and “died simply because he lost his life support, his mother.”

Criminalist John Hamman tested defendant’s handgun and determined that its magazine could hold 15 rounds and the chamber an additional round, for a total of 16 rounds. Cartridge casings and bullets recovered from the crime scene were all definitely or probably fired by defendant’s gun.

In an effort to show that defendant lacked the mental state required for the charged offenses, the defense presented the testimony of three psychologists who had evaluated defendant and concluded he is mildly to moderately intellectually disabled. (Their testimony is summarized below in the discussion of related claims.) In rebuttal, the prosecution presented the testimony of psychiatrist Lee Coleman, M.D., to the effect that IQ testing is not a reliable measure of intelligence, behavior is the best indicator of mental state, and mental health professionals have no greater ability than laypersons to tell who is malingering. (His testimony is discussed below in connection with related claims.) The prosecution also presented evidence that defendant was placed in special education classes in school because of a learning handicap, not because he was thought to be intellectually disabled; he functioned well in prior employment; and, while incarcerated, he regularly requested and appeared to read daily newspapers. The parties stipulated that defendant had a California driver’s license.

B. Penalty Phase

1. Aggravating evidence

The prosecution presented evidence that defendant had engaged in violent conduct on multiple occasions before and after the murders. On August 31, 1989, Martha Diaz was babysitting at her friend Marcella Lopez’s apartment. When Lopez returned home, defendant was outside the building and Lopez talked with him for a few minutes. Diaz emerged from the apartment to get something from her car, and the two women entered the apartment. A few minutes later, defendant knocked at the door and asked to speak with Diaz. Lopez told him Diaz did not want to talk to him and that he should leave. Instead, defendant pushed his way into the apartment and asked to speak with Diaz in private. She refused and they began to argue. Finally, Diaz told him to leave or she would call the police. Defendant became angry and told her not to call the police because he had a warrant for his arrest and would go to jail. Diaz said, “Well, then, just leave,” and picked up the phone. Defendant punched her twice with his fist on her mouth and head.

On the evening of May 31, 1990, Sergeant Rebecca Davis, a correctional officer with the Madera County Department of Corrections, entered the jail unit where defendant was sitting on a plastic chair in the open doorway of his cell. Twice Sergeant Davis told him to “lock down, go into his room and close the door,” and defendant failed to respond. The third time she gave the order, defendant threw his chair at her. She stepped aside to avoid the chair, and pushed him into his cell and locked it.

On June 28, 1990, Madera County Correctional Officer Frank Reiland entered defendant’s cell to calm him down from an agitated state. Defendant tried to force his way past Officer Reiland and, when Reiland pushed back, defendant began to scream obscenities at him, kicked him, and grazed his temple with a punch.

Beatrice Cruz dated defendant in late 1985. On April 14, 1986, after they had stopped seeing each other, defendant appeared outside her home. A male friend who was visiting Cruz went outside and began arguing with defendant. Cruz told defendant that if he did not leave, she would call the police. He called her a bitch and hit her in the mouth. Cruz reported the incident to the police, and defendant was arrested. Sometime later, defendant phoned Cruz to say he was going to kill her “wetback,” referring to her male friend, and she had better get out of her house. Defendant pleaded guilty to a misdemeanor charge of battery arising out of the incident.

2. Mitigating evidence

Defendant’s mother, Catherine Townsel, testified defendant was one of five children in a close-knit, church-oriented family. As a child, defendant got along with his siblings and other children. The Townsels were the only Black family in the neighborhood, and the children socialized mainly with White and Mexican children. Defendant was immature when he started school and had difficulty reading and keeping up with the rest of his class even though Mr. and Mrs. Townsel worked with him. Mrs. Townsel agreed to the school personnel’s suggestion that he be placed in special education classes. Clefo Townsel, defendant’s grandfather, taught Sunday school and recalled that defendant could not keep up with the other children in the class. Defendant had no unusual behavior problems, but on one or two occasions, with his mother’s permission, he was paddled at school for disobedience. When defendant reached junior high school, he began to do better as a result of the help he received in subjects he was slow in, and his mother did not recall any behavioral problems during that period. During high school, defendant dated Beatrice Cruz, who was older than he; Mrs. Townsel did not approve of the relationship. At 17, defendant was not doing well in school, and he eventually dropped out. He worked with his father doing manual labor, and at Sunkist and Boyle Electric. David Boyle testified defendant was always very cooperative and had no problems with the other employees. Defendant was mechanically inclined and could fix lawn mowers and cars.

Christine Ortiz and Elena Esparza testified that during the summer of 1988, they socialized with defendant, and found him to be a nice person with a sense of humor who did not drink or fight.

Bailiffs Jeffrey Doran and Jess Ozcoidi testified they had no difficulty with defendant while assigned to the courtroom.

Correctional Sergeant Allen Patchell testified that, following his review of Sergeant Davis’s disciplinary report, he concluded defendant had not thrown the chair at Davis; rather, Patchell believed defendant slammed the chair toward the floor and it bounced toward Davis.

Dr. Frank Powell reviewed Dr. Coleman’s testimony and testified it did not lead him to question the results of the IQ tests he had administered to defendant. Dr. Coleman’s criticisms of psychological testing were not, according to Dr. Powell, widely accepted in the field of psychology.

II. Discussion

A. Guilt Phase Issues

1. Failure to suspend proceedings and appoint director of regional center

On November 2, 1989, before the commencement of the preliminary hearing in justice court and nearly 15 months before the start of jury selection, defense counsel declared a doubt regarding defendant’s competence to stand trial based on her interactions with him and on a psychologist’s evaluation, which she did not further describe or tender to the court. The court suspended proceedings pursuant to section 1368 and certified defendant to superior court for a competency determination. The superior court appointed two psychiatrists, Dr. Charles A. Davis and Dr. Howard Terrell, to evaluate defendant and assess his competence to stand trial. On December 1, 1989, the superior court held a competency hearing at which the parties stipulated to submitting the issue on the psychiatrists’ reports. Both psychiatrists concluded defendant was malingering; Dr. Davis opined defendant was competent, while Dr. Terrell believed there was a possibility that, although malingering, defendant was suffering from a concurrent mental disorder that was impairing his ability to cooperate with his counsel in the preparation of a defense, and on that basis recommended the court find him incompetent. The court found defendant competent to stand trial.

During the guilt phase of trial, on April 3, 1991, the defense presented the testimony of psychologist Dr. Lea Christensen that she had evaluated defendant in late October 1989 and found him then to be intellectually disabled and incompetent to stand trial. Although trial counsel never renewed her concerns regarding defendant’s competence, defendant now contends Dr. Christensen’s testimony constituted substantial evidence that he was both intellectually disabled and incompetent to stand trial, triggering a duty on the part of the trial court to suspend the proceedings and appoint the director of the regional center for the developmentally disabled to evaluate him pursuant to section 1370.1. The trial court’s failure to do so, he contends, violated his rights to due process and a reliable guilt and penalty determination, requiring reversal of the judgment. We disagree.

The governing legal principles are well established. “ ‘A person cannot be tried or adjudged to punishment while mentally incompetent. (§ 1367, subd. (a).) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Ibid.)’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1063 [119 Cal.Rptr.2d 859, 46 P.3d 335].) “ ‘Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial.’ ” (People v. Halvorsen (2007) 42 Cal.4th 379, 401 [64 Cal.Rptr.3d 721, 165 P.3d 512]; see also § 1368, subds. (a), (b); People v. Pennington (1967) 66 Cal.2d 508, 518 [58 Cal.Rptr. 374, 426 P.2d 942].)

In a competency trial, “[i]f it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled ... to examine the defendant.” (§ 1369, subd. (a).) “ ‘[Developmental disability’ means a disability that originates before an individual attains 18 years of age, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual .... [T]his term shall include intellectual disability . . . .” (§ 1370.1, subd. (a)(1)(H).) “[A]ppointment of the director of the regional center for the developmentally disabled (§ 1369, subd. (a)) is intended to ensure that a developmentally disabled defendant is evaluated by experts experienced in the field, which will enable the trier of fact to make an informed determination of the defendant’s competence to stand trial.” (People v. Leonard (2007) 40 Cal.4th 1370, 1391 [58 Cal.Rptr.3d 368, 157 P.3d 973] (Leonard).) The erroneous failure to appoint the director of the regional center does not require reversal unless the error deprived the defendant of a fair competency trial. (Id. at p. 1390.)

Defendant does not contend that the pretrial court erred in failing to initiate developmental disability competency proceedings. Rather, he contends Dr. Christensen’s trial testimony—that in late October 1989, some 18 months earlier, she had concluded defendant was intellectually disabled and incompetent to stand trial—constituted substantial evidence of his present incompetence due to intellectual disability, triggering the trial court’s statutory obligation to suspend proceedings, appoint the director of the regional center to evaluate defendant, and hold a second competency hearing. (§ 1369, subd. (a).) Its failure to do so, defendant urges, requires that we reverse the judgment.

In support, defendant relies on People v. Castro (2000) 78 Cal.App.4th 1402 [93 Cal.Rptr.2d 770] (Castro). In that case, the defense counsel declared a doubt as to the defendant’s competence to stand trial and requested the appointment of the director of the regional center based on a psychologist’s opinion that the defendant had a developmental disability classified as the “ ‘most severe.’ ” (Id. at pp. 1410-1411.) The trial court refused to appoint the director of the regional center and instead appointed a psychiatrist to evaluate the defendant’s competence. {Id. at p. 1411.) The psychiatrist reported that the defendant had a learning disorder but was not incompetent, and the trial court reinstated criminal proceedings. {Ibid.) The defendant pleaded guilty to second degree murder. New counsel substituted in to the case and declared a doubt regarding the defendant’s competence to stand trial but did not specifically request the appointment of the director of the regional center. {Id. at p. 1412.) The trial court appointed a second psychiatrist to reevaluate the defendant’s competence. {Ibid.) The second psychiatrist reported that, although the defendant had a learning disability, she had no “ ‘psychiatric disease’ ” and was “ ‘able to understand the nature and purpose of the proceedings’ ” against her. {Ibid.) The trial court again found the defendant competent and reinstated criminal proceedings, eventuating in the denial of her motion to withdraw her plea and subsequent sentencing. {Ibid.) The Court of Appeal reversed, holding that the court’s error in failing to appoint the director of the regional center violated state law and the defendant’s right to due process and deprived it of jurisdiction to proceed. (Leonard, supra, 40 Cal.4th at pp. 1390-1391.)

As defendant recognizes, this court in Leonard, supra, 40 Cal.4th 1370, disapproved Castro, supra, 78 Cal.App.4th 1402, to the extent it employed a per se rule of reversal for error in the failure to appoint the director of the regional center in connection with competency proceedings involving an allegedly developmentally disabled defendant. (Leonard, supra, at p. 1389.) We reasoned that, although the complete failure to hold a competency hearing requires reversal of a conviction, the failure to appoint the director of the regional center is a less egregious error, requiring reversal only if it deprived the defendant of a fair competency trial. (Id. at p. 1391, fn. 3.) In Castro, we said, the failure to appoint the regional director did have such an effect because neither of the court-appointed psychiatrists made any “ ‘attempt to determine [the defendant’s] intelligence level or assess the extent of her developmental disability.’ ” (Leonard, at p. 1390.) Instead, their examinations “focused on whether [the defendant] had any mental disease or mental illness, which is an entirely separate basis for a finding of incompetency than developmental disability. (§ 1367.)” (Castro, at p. 1418.) Hence, the procedure followed in Castro violated both the letter and the spirit of section 1369, and the Court of Appeal did not err in reversing the judgment in that case. In Leonard, by contrast, we noted “the trial court’s competency determination was based on evidence from experts who were familiar with defendant’s developmental disability and who considered it in evaluating his competence.” (Leonard, at p. 1390.) The error in Leonard therefore did not prejudice the defendant. (Ibid.)

Here, defendant argues, as in Castro and unlike in Leonard, the record contains no evidence Drs. Terrell and Davis, the psychiatrists who evaluated his competence, had any experience in dealing with intellectually disabled persons or qualifications sufficient to render a diagnosis of intellectual disability, and their examinations clearly focused on whether he suffered from mental illness, rather than intellectual disability. He points to the testimony of his expert, Dr. Christensen, that what may appear to be malingering behavior to an evaluator without expertise in intellectual disability, or one who has not tested a defendant for intellectual disability, may actually be evidence of intellectual disability. Indeed, he claims, even if he was not being truthful when he responded, “I don’t know” to most of Drs. Terrell and Davis’s questions—responses that the doctors believed were evidence of malingering—that was not necessarily inconsistent with his being intellectually disabled. Only a qualified expert, he insists, could determine whether his behavior was evidence of a competent defendant unwilling to cooperate or of an intellectually disabled, incompetent defendant unable to cooperate. Because no such expert was appointed, he contends that neither the statutory scheme nor the requirements of due process were satisfied, and the judgment must be reversed.

We are unpersuaded that Dr. Christensen’s testimony regarding defendant’s alleged intellectual disability and her earlier belief that he was incompetent to stand trial raised a doubt sufficient to require the trial court to institute renewed proceedings under section 1369, subdivision (a). As we shall explain, Dr. Christensen’s conclusion concerning defendant’s intellectual functioning was, by her own acknowledgment, an outlier that may have reflected the unusual circumstances present on the day of her evaluation rather than the true extent of defendant’s abilities.

Dr. Christensen was one of a series of experts called by the defense at trial in an effort to undermine the prosecution’s claim that defendant had the specific intent necessary for the charged crimes. On the subject of whether defendant was incompetent, Dr. Christensen described an evaluation that was not very different from the evaluation that Drs. Terrell and Davis had conducted. Like the psychiatrists, Dr. Christensen asked defendant general questions as well as questions about the legal process. Defendant answered most questions with “I don’t know” or “I don’t understand.” Similarly, to the psychiatrists he had said, among other things, he did not know his full name or his age, basic facts about his immediate family, the months of the year, what a high school was, what alcohol was, what medication was (although he later used the latter term correctly), or the sum of two plus two. One of the psychiatrists had noted that in contrast to these answers, the police report indicated that when defendant was read his Miranda rights, he responded by saying he understood those rights and that he wanted to talk to a lawyer. In addition, he was able to read to one of the psychiatrists an extended excerpt from the police report, and jail personnel reported to the psychiatrist that defendant read newspapers on a daily basis. Partly on this basis, the psychiatrists had concluded that defendant was malingering.

Dr. Christensen came to a different conclusion: that defendant truly did not understand the nature of legal proceedings. She affirmed this conclusion in spite of evidence, introduced on cross-examination during her testimony, tending to show that defendant did understand the basics of the legal process—in particular, a letter he wrote discussing the sentence he might receive and considering whether or not to testify. When asked to explain why she came to a different conclusion from the examining psychiatrists, she responded simply that she had conducted psychological testing, whereas Drs. Terrell and Davis had not.

The results of Dr. Christensen’s testing, however, are subject to substantial question in light of the remainder of her testimony. Her testing of defendant yielded a full-scale IQ score of 47, which she testified indicated moderate to severe intellectual disability. She further testified to significant intellectual deficits beyond those revealed in response to her questions about defendant’s understanding of the legal system. For example, she testified that defendant was unable to calculate “two minus one.” Dr. Christensen also asserted that defendant had exceptionally poor memory. But despite her own admission that defendant’s unusually weak memory was not typical of people who are intellectually disabled, Dr. Christensen denied that his responses suggested malingering. Her explanation did not, however, describe in any detail how her specialized training and expertise enabled her to rule out the possibility that defendant was malingering. She explained only that, in her view, “[mjalinger-ers wouldn’t conceive of, would not normally think about using [lack of memory] as a technique for faking one out. ... A malingerer will think of something different.”

As Dr. Christensen acknowledged at trial, her finding that defendant was moderately to severely intellectually disabled was an outlier. The two other defense experts, also both licensed psychologists, testified that they had tested defendant’s full-scale IQ as 59 and 66, respectively—within the range of mild, not moderate or severe, intellectual disability. Dr. Christensen acknowledged that the difference between a full-scale IQ of 47 and one of 66 is “significant.” She hypothesized that the different results might have been attributable to various factors present on the day she examined defendant, including that the evaluation was conducted in an infirmary setting with many distractions and poor lighting, and that defendant was at the time in a head harness, medicated, tired, and in pain while recovering from injury. Defense expert Dr. Schuyler (who had tested defendant’s full-scale IQ as 66) echoed these concerns about the effects of this set of unusual conditions on the results of Dr. Christensen’s evaluation.

Finally, other than Dr. Christensen’s assertion that she believed defendant was incompetent on the day she examined him—a day on which, in her own account, her results were likely to have been confounded by an unusual set of external variables—there is little else in the record to suggest that defendant was unable to understand the nature of the proceedings or to assist his counsel. None of the other defense witnesses raised similar concerns or testified to intellectual deficits of the magnitude that Dr. Christensen had identified in concluding that defendant was incompetent.

In sum, given the confounding factors operative at the time of Dr. Christensen’s evaluation—including that defendant, still recovering from a gunshot wound, was immobilized in a head harness, in pain, and on medication, and that the testing was taking place in a hospital environment that was apparently poorly lit and full of distractions—the trial court could properly find she lacked “ ‘sufficient opportunity to examine’ ” defendant for her opinion to raise a reasonable doubt as to his competency. (People v. Ramos (2004) 34 Cal.4th 494, 507-508 [21 Cal.Rptr.3d 575, 101 P.3d 478], quoting People v. Pennington, supra, 66 Cal.2d at p. 519.) The trial court therefore did not err in failing to institute competency proceedings under section 1369, subdivision (a).

People v. Hale (1988) 44 Cal.3d 531 [244 Cal.Rptr. 114, 749 P.2d 769], on which defendant relies, is inapposite. There, the trial court declared a doubt regarding the defendant’s competence and ordered him evaluated under section 1368. (Hale, supra, at p. 535.) The first psychiatrist to examine him concluded he was incompetent due to a mental disorder. (Id. at p. 536.) After treatment with antipsychotic medication, the defendant’s condition improved, and several psychiatrists later concluded he was no longer incompetent. (Id. at pp. 537-538.) Having considered the psychiatrists’ evaluations, the court proceeded to trial on the criminal charges without holding a hearing or making any explicit findings regarding the defendant’s competence. {Id. at p. 538.) We reversed, holding the trial court lacked jurisdiction to conduct the criminal trial once it had made an order instituting proceedings under section 1368 and could not vacate that order sub silentio. (Hale, at pp. 541-542.) Unlike in Hale, here the trial court did not declare a doubt regarding defendant’s competence after hearing Dr. Christensen’s testimony.

People v. Melissakis (1976) 56 Cal.App.3d 52 [128 Cal.Rptr. 122], on which defendant also relies, is likewise distinguishable. In that case, the Court of Appeal reversed a conviction where, after pretrial competency proceedings had eventuated in a finding that the defendant was competent, the trial court failed to hold a second competency hearing after new evidence emerged at trial that the defendant was in the grip of paranoid delusions that prevented him from cooperating with his counsel in the presentation of a rational defense. {Id. at pp. 57-62.) In contrast, here the trial evidence of defendant’s intellectual disability did not suggest he lacked the ability to understand the nature of the criminal proceedings or cooperate with counsel in the presentation of a rational defense.

Our conclusion that the trial court did not err in failing to reinstitute competency proceedings based on Dr. Christensen’s testimony obviates the need to address defendant’s contention that to hold reliable retrospective competency proceedings to remedy that purported error would not be possible.

2. Issues related to testimony of Lee Coleman, M.D.

In support of his defense that he did not premeditate and deliberate the killings, as required for first degree murder, or kill Diaz with the specific intent to prevent her from testifying against him in a possible future criminal proceeding arising from her spousal battery complaint, as required for the witness-killing special-circumstance allegation and the dissuading a witness charge (§§ 190.2, subd. (a)(10), 136.1, subds. (a)(1) & (c)(1)), defendant, as previously noted, presented the testimony of three expert witnesses, psychologists who had evaluated him and administered intelligence tests and other standardized tests commonly used to diagnose intellectual disability. Over defense objection, psychiatrist Lee Coleman, M.D., testified for the prosecution in rebuttal concerning the unreliability of the testing and methodology the defense experts used and the limitations of psychological and psychiatric testimony. On appeal, defendant contends the admission of Dr. Coleman’s testimony violated state law and his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. Specifically, he contends Dr. Coleman was unqualified to testify as an expert on the subjects of intellectual disability and related intelligence and psychological testing, was erroneously permitted to testify regarding questions of law vital to the defense, and gave erroneous opinions regarding the law. The trial court compounded these errors, defendant contends, by misinstructing the jury that it could refuse to consider the evidence of his intellectual disability in determining whether he possessed the mental states required for the charged offenses. He claims the errors were prejudicial, necessitating reversal of his conviction and sentence. The Attorney General asserts defendant forfeited these contentions by failing to make sufficiently specific objections below, and they lack merit in any event.

a. Factual background

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

After the prosecutor indicated he would be presenting the testimony of Dr. Lee Coleman in rebuttal, the defense, out of the jury’s presence, requested an offer of proof regarding Dr. Coleman’s proposed testimony. Defense counsel noted: ‘“[W]e restricted our questioning of the experts to not have them render legal conclusions or opinions as to the state of mind of the defendant. [¶] We do not believe that the proposed testimony of Dr. Coleman is appropriate as rebuttal.” Defense counsel also argued the proposed testimony was irrelevant. Based on his study of the witness’s published writings, counsel stated it appeared Dr. Coleman would be testifying that psychiatrists and psychologists have no training that would enable them to render opinions in the courtroom. Counsel argued that ‘“since [psychological experts] have, in fact, been qualified as experts and allowed to present their expert testimony, that Dr. Coleman coming in and saying that has absolutely no place within the courtroom setting and should be totally disregarded by the jury” would be ‘“an inappropriate opinion,” as well as “extremely prejudicial and its probative value is certainly outweighed by its prejudice . . . .”

The prosecutor clarified that “Dr. Coleman’s testimony would be to explain to the jury the tests are not relevant which were administered by the doctors, why they’re not relevant. And Dr. Coleman is not going to give any opinion as to the defendant’s mental state. Dr. Coleman never gave such an opinion and he would also say that that is something the jury should determine.” Defense counsel argued, “[M]y understanding is the Court makes the rulings on what is relevant and what is not relevant, and it is not for the expert to say what is relevant. . . . [¶] The Court has already admitted the testimony of the psychologists. There was no objection to those. The prosecutor made no effort to convince the Court that their testimony was without foundation and should not be admitted.” Defense counsel also questioned whether, given the differences in the training undergone by psychiatrists and psychologists, a psychiatrist like Dr. Coleman is qualified to render opinions regarding psychological evaluations. The court ruled that Dr. Coleman would be allowed to testify.

In the jury’s presence, Dr. Coleman testified as follows: He had been a medical doctor specializing in psychiatry since 1969. Psychiatrists are medical doctors specializing in problems of emotions and behavior. Psychologists are not medical doctors, and cannot treat the body or prescribe medications, but their training in psychotherapy overlaps that of psychiatrists. Since the early 1970’s, Dr. Coleman’s special interest had been in psychiatry in the legal system. He had studied the professional literature concerning how the techniques, methods, and examinations used in clinical psychiatry and psychology work when applied in the legal setting, and had read actual case files to compare the methods and conclusions used by mental health professionals with “what we know in the professional literature of the actual ability of those techniques to do what is alleged that they can do.” Based on his study and experience, Dr. Coleman held the opinion that the tests and procedures mental health professionals use “are not reliable instruments to help answer the questions which they’re supposed to be helping with.” Over an unsuccessful lack-of-foundation objection by the defense, Dr. Coleman testified an IQ test is not a reliable measure of intelligence, a mental status examination is not a reliable guide to “what a person’s orientation or understanding or current mental state is,” and a personality test is “not a reliable guide to somebody’s personality.” The examiner engages in “guesswork as to the reason why the person answers the way they do.”

The prosecutor asked whether Dr. Coleman had an opinion as to whether the results of such tests have any value to a jury. Over unsuccessful defense objections on grounds of improper rebuttal, “not proper subject for expert testimony,” and “calls for a conclusion with a lack of foundation,” the witness testified the tests “are of no help whatsoever”; “[tjhere is no kind of personality which is incapable of having [the mental states at issue in a criminal case]”; and the tests were never designed for this purpose. No psychological test exists, he testified, the results of which would require a juror to change his or her mind about the existence of premeditation and deliberation; if a juror found defendant was able to plan and was aware of the consequences of his actions, nothing in Dr. Christensen’s report would require the juror to reevaluate his or her position. Dr. Coleman testified psychologists and psychiatrists are in no better position than laypersons to judge credibility; indeed, in his view, “they’re actually worse” than laypersons.

On cross-examination, Dr. Coleman acknowledged his belief that no mental health professional can determine from testing what a person was thinking at some time in the past. Asked whether a fact finder “should decide a case solely on the facts surrounding the circumstances of the offense,” Dr. Coleman stated: “[I]f they’re going to decide what the truth is about what happened, of course, they would rely on all the evidence. But when it comes to these mental questions, that, in my opinion, a person’s behavior as a juror determines it to be from the evidence and of the circumstances surrounding the behavior as they determine it to be is as reliable a guide as exists to determine what somebody’s mental state was.” Dr. Coleman emphasized he was not saying that a person’s mental state during the commission of an offense was irrelevant; rather, he said, “My point is simply that the tools of psychiatry and psychology are in my opinion of no help in a jury or judge deciding those mental issues.”

b. Asserted error in finding Dr. Coleman qualified to testify as an expert on intellectual disability and related intelligence and psychological testing

Evidence Code section 720, subdivision (a) provides that a “person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” “A trial court’s decision that a proposed witness qualifies as an expert under Evidence Code section 720 is a matter within the court’s broad discretion and will not be disturbed on appeal unless the defendant demonstrates a manifest abuse of that discretion.” (People v. Jones (2013) 57 Cal.4th 899, 949 [161 Cal.Rptr.3d 295, 306 P.3d 1136].) Defendant contends that because Dr. Coleman testified to no special training, education, experience, or knowledge in the field of intellectual disability, the trial court abused its discretion in permitting him to testify as an expert in that field. As the Attorney General argues, however, this contention was forfeited by the failure to make a contemporaneous objection on the same ground at trial. (People v. Ramos (1997) 15 Cal.4th 1133, 1171 [64 Cal.Rptr.2d 892, 938 P.2d 950].) The thrust of defendant’s in limine objections to Dr. Coleman’s proposed testimony was that (1) the defense experts had not testified regarding defendant’s having had any particular mental state at the time of the crimes; hence, any testimony by Dr. Coleman that mental health professionals cannot reliably determine what a person’s mental state was at some point in the past would constitute improper rebuttal; (2) since the trial court determines relevance, any testimony by Dr. Coleman that mental health testimony has no place in the courtroom would be inappropriate; and (3) as a psychiatrist, Dr. Coleman was not qualified to render opinions on psychological evaluations. Neither explicitly nor implicitly did the defense seek exclusion of such testimony on the basis that Dr. Coleman lacked expertise in the field of intellectual disability. Nor did the defense object during Dr. Coleman’s testimony before the jury on the ground of his purported lack of expertise in that field.

In any event, as the Attorney General argues, Dr. Coleman did not testify as an expert in intellectual disability, and rendered no opinion regarding whether defendant is intellectually disabled. Rather, Dr. Coleman testified, based on the professional literature and his own study, about psychological evaluation generally—including intelligence, neuropsychological, and personality testing—and its limitations in terms of the inferences it can support in the forensic setting concerning a defendant’s mental state at the time of an offense. Defendant fails to show the trial court abused its discretion in permitting this testimony in rebuttal to that of the defense experts. His derivative constitutional claims fail for the same reason.

Defendant also contends that, in testifying that intelligence testing is not generally accepted within the professional community as a fundamentally reliable measure of intelligence, Dr. Coleman revealed a lack of impartiality that should have disqualified him from testifying as an expert. Although defendant acknowledges that “intelligence testing does not always produce precise results for a variety of reasons,” he urges that IQ “ ‘remains ... the measure of human intelligence that continues to garner the most support within the scientific community’ ” (quoting American Assn, on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports (10th ed. 2002) p. 51). Under the clinical definition of intellectual disability, he observes, “ ‘general intellectual functioning is defined by the intelligence quotient (IQ or IQ equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests, such as the Wechsler Intelligence Scales given in this case’ ” (quoting American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) p. 41, italics omitted; see also id. at p. xxxiii). He contends Dr. Coleman testified, to the contrary, that intelligence testing is not generally accepted within the relevant professional community and is not relevant to determining whether a person is intellectually disabled. This testimony, defendant argues, signified either (1) a lack of the knowledge, training, and experience in the field of intellectual disability necessary to serve as an expert in this case, or, (2) because “his bread and butter was debunking psychological and psychiatric testimony and related testing,” Dr. Coleman was “ ‘so personally invested in establishing the technique’s [non]acceptance that he [could] not be objective about [] agreements within the relevant [professional] community.’ ” (See People v. Reilly (1987) 196 Cal.App.3d 1127, 1138-1139 [242 Cal.Rptr. 496] [addressing Kelly requirement of expert impartiality].) In either case, defendant argues, the trial court erred in permitting him to testify over defense objections.

Preliminarily, defendant forfeited this challenge to Dr. Coleman’s impartiality by failing to raise it in the trial court. On the merits, the argument is unpersuasive. Defendant predicates his claim on a statement by Dr. Coleman taken out of context. In testifying, “that’s why these [IQ] tests have been totally trashed by the professional community” and “not given any credibility by the professionals,” Dr. Coleman was addressing the observed tendency, noted even by defendant’s experts, of persons with lesser educational levels and language skills, who mainly come from minority groups or from an impoverished background, to score lower on IQ tests, apparently for reasons unrelated to actual intelligence, than persons from the dominant community. We perceive no lack of impartiality in the statement. (See Larry P. v. Riles (9th Cir. 1984) 793 F.2d 969, 975-976, 984 [upholding lower court finding of racial bias in standard IQ tests and injunction against the use of such tests in California schools].)

c. Asserted error in permitting Dr. Coleman to testify concerning purely legal questions

Defendant further contends the trial court erred in permitting Dr. Coleman to testify regarding purely legal questions and to encourage jurors to disregard the law. Having allowed the three defense expert witnesses to testify that defendant was intellectually disabled, he reasons, the trial court effectively resolved the legal questions that (1) intellectual disability is a proper subject of expert opinion (see Evid. Code, § 801, subd. (a) [expert testimony is permissible on a “subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”]), and (2) the defense experts’ intellectual disability diagnoses were “[biased on matter . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates” (id., § 801, subd. (b)), including the administration and interpretation of intelligence tests and other psychological testing. Once the trial court resolved those questions, defendant contends, the jurors’ sole function was to determine the weight and credibility of that evidence. But in derogation of those rulings, he claims, Dr. Coleman testihed that laypersons can identify intellectual disability without expert assistance, and that expert opinion, including that based on the results of such inherently unreliable tools as intelligence testing, does not assist the jury in determining intellectual disability or mens rea.

As defendant acknowledges, in earlier cases we determined that “Dr. Coleman’s testimony regarding the unreliability of psychiatric testimony was neither improper nor prejudicial, because he did not suggest that courts should bar psychiatrists from the courtroom. Thus, his criticism of forensic psychiatry and of the opinions of the defense experts went to the weight of those opinions rather than their admissibility.” (People v. Smithey, supra, 20 Cal.4th at p. 966.) We reach the same conclusion here. And, as we also previously concluded, “Moreover, because the trial court instructed the jury that an expert was entitled to state an opinion on a matter at issue in the trial, and that the jury was entitled to disregard an expert opinion if it was unreasonable, we have found such testimony by Dr. Coleman to be ‘ “clearly nonprejudicial.” ’ ” (Ibid.) Defendant argues, to the contrary, that although in previous cases we have “drawn a line in the sand that Dr. Coleman may have narrowly avoided,” “he finally crossed it in this case.” But we see no signihcant difference between the testimony we approved in Smithey and other cases and the testimony Dr. Coleman gave in this case. Defendant’s claim therefore lacks merit.

3. Admission of testimony by lay witnesses, and asserted hearsay evidence, regarding defendant’s alleged intellectual disability in his developmental years

Defendant contends the trial court erred in permitting three lay witnesses— teachers and a counselor who taught or worked with defendant in his high school special education program—to testify in the prosecutor’s case in rebuttal that they did not categorize defendant as intellectually disabled. The court erred, according to defendant, because the question whether a person is intellectually disabled is one for experts and the witnesses were unqualified to give an opinion on the subject. Defendant further contends the trial court erred in overruling his hearsay and foundational objections and allowing a school psychologist and custodian of records to express the opinion, based on school records, that defendant was not intellectually disabled. The asserted errors, he contends, violated not only state law but, because the evidence of intellectual disability that he presented was the “core of his defense” by which he sought to raise a reasonable doubt on the elements of premeditation and deliberation and the witness-killing special-circumstance allegation, also his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution not to be convicted except on proof beyond a reasonable doubt, to a meaningful opportunity to present a defense, to due process, and to a reliable jury verdict. We conclude the trial court did not abuse its discretion in allowing the teachers and counselor who had worked with defendant to testify they did not categorize him as intellectually disabled, and any error in allowing the records custodian to testify to the conclusions contained in the records was nonprejudicial.

A recitation of the factual background to this claim will help to place it in its legal context. Defendant’s first expert witness, Dr. Powell, testified that, with a full-scale IQ score of 59, defendant was mildly intellectually disabled. He agreed with the prosecutor that such disability “[would] be noticeable [to] friends and family.” A subsequent expert, Dr. Christensen, likewise testified on cross-examination that “we would expect that family and friends would know [defendant] to be slow, harder to educate, not always quick to acquire new information and not always high functioning in general compared to age peers.”

The prosecution then called three lay witnesses—defendant’s former school counselor Dolores Rodriguez and former teachers Elizabeth Davis and Susan McClure—and asked them if they ever considered defendant to be intellectually disabled while attending school. Over unsuccessful defense objections that there was no foundation to show that the witnesses were qualified to render an opinion regarding defendant’s intellectual disability, all three testified they would not categorize him as intellectually disabled.

Specifically, Rodriguez testified she was a counselor at Madera High School for 17 years, with responsibilities in academic scheduling, testing, and personal, vocational, and career development, and counseled defendant in 1983, 1984, or 1985. She had personal contact with defendant during that time regarding academic matters and program changes. Defendant, she testified, was in the special education program at Madera High School as a “learning handicapped” individual. Based on her personal contacts with defendant, she testified, over a defense objection on the ground of “lack of foundahon as to this witness’s expertise to render such an opinion,” she did not “consider [defendant] to be in the category of a mentally retarded person.”

Davis testified she was a resource specialist in the special education department at Madera High School who worked with students who have learning problems. In that capacity she taught defendant llth-grade United States history. She observed him to have problems reading and turning in his homework, but did not recall any problems with his reasoning abilities. Davis had worked with intellectually disabled individuals, not in a school setting but as a camp counselor, and—over an unsuccessful defense objection on the ground of foundation—testified she would not categorize defendant as intellectually disabled. On redirect examination, she observed: “He was not a student who put forth a great deal of effort. For instance, in getting homework done and studying a lot I don’t think he did a whole lot outside of class.”

McClure testified she was a resource specialist in the special education department at Madera High School; defendant was one of her students. She recalled he had difficulties with reading and writing, but, asked whether there was anything “that ever indicated to you that [defendant] may be mentally retarded,” she responded in the negative.

The prosecuhon also presented the testimony of Leon Potter, a school psychologist and custodian of records for the Madera Unified School District. Over an unsuccessful continuing defense objection on grounds of hearsay and lack of foundation, Potter testified defendant’s school record showed he was placed in special education “[b]ecause of a learning handicap.” IQ tests administered to defendant in 1975, 1979, and 1982 yielded scores of 70, 75, and 77, respechvely. Asked whether, based on these IQ scores, defendant was ever classified as intellectually disabled by the school district, Potter testified that defendant was placed in a class for intellectually disabled students “only on what we call exceptional circumstances, meaning he did not qualify by standard as a mentally retarded child but he’s functioning in a low borderline range academically, functioning very lowly [s/c], was having difficulty in the classroom. When you have circumstances, even though a student does not test mentally retarded, if they’re in the borderline range under exceptional circumstances with parental consent you can place them in EH [educationally handicapped] classes as was done in this case here.”

Defendant contends the trial court erred in permitting Rodriguez, Davis and McClure to testify they did not categorize him as intellectually disabled because the determination whether an individual is intellectually disabled is a matter beyond the common experience of laypersons and requires expertise. Lay witnesses, he reasons, can testify regarding their perceptions of an individual’s behavior, including such matters as test scores, school performance, and a seeming inability to follow instructions, in order to bolster or undermine a claim of intellectual disability, but may not offer their opinions that an individual is or is not intellectually disabled. Here, defendant contends, the lay witnesses properly testified to their observations that defendant had problems with reading and completing assignments but did not seem to have problems with reasoning, but were improperly allowed to testify that in their opinion he was not intellectually disabled.

Defendant’s contention lacks merit. ‘“[A]ll relevant evidence of mental con