Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 0513788
NEEDHAM, J.
Appellant Andrew Lawrence Moffett and his codefendant Alexander Hamilton robbed a supermarket and a bank counter located inside the market. They fled on foot through a nearby neighborhood after crashing their getaway car. During their flight, Hamilton shot and killed a police officer. The Contra Costa District Attorney charged appellant and Hamilton with special circumstance murder and other related charges, and sought the death penalty against Hamilton. Appellant was under 18 years old at the time of the offense and was not eligible for the death penalty. (Pen. Code, § 190.5, subds. (a), (b).)
Following a joint trial with Hamilton, appellant was convicted of one count of first degree murder, three counts of robbery and one count of driving a stolen vehicle. (Pen. Code, §§ 187, 211; Veh. Code, § 10851.) The jury also found true three felony-murder special circumstance allegations, one peace officer special circumstance allegation, and firearm use allegations as to the murder and robbery counts. (Pen. Code, §§ 190.2, subds. (a)(7) & (a)(17), 12022.53, subd. (b).) The jury returned the same verdict as to Hamilton and additionally found him guilty of two counts of attempted murder and found true a lying-in-wait special circumstance allegation. Appellant received a sentence of life without the possibility of parole on the murder count, plus a ten-year enhancement for the firearm use allegation attached to that count. The court also imposed a consecutive sentence for one of the robbery counts and the attached firearm use enhancement, along with concurrent sentences on the remaining two robbery counts and enhancements. Sentence in the vehicle theft count was stayed. Hamilton received the death penalty.
Further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends: (1) his trial should have been severed from Hamilton’s; (2) the court should have granted his motion under People v. Wheeler (1979) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson); (3) he was prejudiced by evidence of his prior bad acts; (4) the instructions on accomplice liability were misleading as to the murder count; (5) the firearm enhancement attached to the murder count was improper because he was not using his gun at the time Officer Lasater was shot; (6) the peace officer special circumstance was unsupported by evidence that he acted with the requisite intent to kill and the jury instructions and verdict forms misstated the intent required; (7) the jury instructions on the felony-murder special circumstances did not accurately describe the mental state necessary for those circumstances to apply or the causal relationship required between the underlying felony and the killing; (8) the trial court erred when it determined that appellant was legally competent to proceed with post-trial proceedings; (9) the court should have granted appellant’s motion for new trial based on his lack of legal competency during the trial and ineffective representation by his counsel; (10) the court improperly denied a motion for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), without holding a hearing; (11) cumulative error requires reversal of the judgment; and (12) the sentence imposed on the robbery counts was erroneous. We agree that the peace officer special circumstance must be reversed, that aspects of the sentences on the robbery counts were erroneous, and that the case must be remanded for resentencing.
FACTS AND PROCEDURAL HISTORY
Elijah Moore stole a white Toyota Camry at appellant’s request in exchange for some marijuana. On April 23, 2005, he delivered it to appellant, who was with Hamilton and Irving Griffin. Griffin was in a wheelchair.
Later that same day, appellant and Hamilton drove the Camry to a Raley’s supermarket in Pittsburg, which was having a grand reopening celebration. They entered the store shortly before 5:47 p.m., wearing facial coverings and carrying semi-automatic handguns. Appellant ran to a checkout stand manned by Rima Bosso, pointed the gun at her head and demanded that she give him the money. Bosso initially thought it was a joke by one of her coworkers, but when she realized the situation was serious, she became flustered and could not get the register drawer to open. Appellant put his gun up against her left ear and repeatedly demanded the money, telling her “Come on, bitch. Come on, bitch. You’re taking too fucking long.” The drawer finally opened and Bosso put about $800 in a bag. Bosso closed her eyes because she thought appellant was going to shoot her, but when she opened them he had run away.
As appellant was robbing Bosso, Hamilton approached a Wells Fargo bank counter inside the Raley’s, where bankers Anjila Sanehi and Adrianna Beaman were sitting at the counter helping customers. Hamilton stood between the two customers (one of whom was with her 12-year-old daughter) and pointed the gun back and forth between Sanehi and Beaman. He focused on Beaman, telling her, “Bitch, give me the money or I will shoot you.” Beaman and Sanehi both put money in a bag that Hamilton was carrying.
Appellant and Hamilton ran out of the store, dropping some money just outside the exit. They got inside the Camry, which sped out of the parking lot. A few minutes later, the car crashed into the back of a pickup truck parked on the street. Appellant and Hamilton got out of the car and a neighbor saw appellant (the taller of the two) drop and pick up a gun. Another neighbor started to chase them as they ran through a cul-de-sac, but he was warned off by the neighbor who had seen the gun. Appellant told the neighbor who was chasing them, “Stop or I’ll cap you, motherfucker.” Appellant and Hamilton continued running through several yards near the Delta de Anza Trail, scaling fences as they went.
Shortly after the robbery, police officers responded to Raley’s while others drove the likely escape routes. Information about the car crash and suspects running on foot near the Delta de Anza Trail was broadcast over the police radio. Pittsburg Police Officers Larry Lasater and John Florance drove their patrol cars as far as they could and then got out and ran a couple of hundred yards down a path until they reached the trail. The officers surveyed the trail with their backs toward one another, with Officer Lasater looking east and Officer Florance looking west. Officer Lasater said, “Is that some one down there?” and Officer Florence turned around and saw a dark figure standing in some trees and greenery that was south of the trail. The figure disappeared into the greenery and Officer Lasater started running, calling out, “Black male, black sweatshirt.” Officer Florance heard the sound of a fence being hopped and Officer Lasater quickly stopped and drew his weapon.
Officer Florance saw Officer Lasater walking heel-to-toe toward the area where the figure had disappeared, holding his gun out in front of him. Officer Lasater pointed his gun downward and shouted, “Show me your hands.” Hamilton, who was lying down in the bushes, fired several shots at Officer Lasater, one of which shattered a vertebrae in his neck, and another of which went through his calf. Officer Lasater collapsed and ultimately died of the neck wound. A number of other officers came to the scene to assist in capturing the shooter and moving Officer Lasater from the area where he had fallen. Hamilton fired shots at two other officers until his gun ran out of ammunition, at which point he dropped his gun, crawled out of the grass and was taken into custody.
Meanwhile, appellant had jumped the fence adjacent to the site of the shooting and had run through the backyard of Elizabeth Huyuck. Huyuck did not hear gunshots until after the man ran through her yard. She noticed a dark sweatshirt caught on the backyard fence and some cash on the ground near the fence.
Another neighbor, Jerilynn Privratsky, heard the sound of a helicopter and started to go to her backyard via her garage to see what was happening. She saw a bare-chested young African American man start to come into her garage and yelled, “No!” The man ran across the street. A number of other neighbors in the area also saw a young, shirtless African-American man running though the streets and backyards. Appellant, who is African American, was eventually discovered lying shirtless in a backyard in a fetal position under a tree. When police apprehended him (about 50 minutes after the first robbery dispatch) he said “Don’t kill me, ” and surrendered unarmed. At least one of his wrists was bleeding.
Larry Pitts lived in the area but was out of town on the day of the robbery. When he returned home the following evening, he noticed that the gate to his yard was open and that some dirt had been pulled out from one of his flower pots. The next morning he checked the flower pot and discovered a handgun buried under about six inches of soil. The gun was a fully loaded automatic with a bullet in the chamber.
After the police recovered the gun from Pitts, they searched the backyard next door. Inside a garbage can they found a white plastic bag with $4027 cash and a black shirt. Blood matching appellant’s DNA was discovered on the plastic bag containing the cash and on top of the garbage can lid. The black shirt also had a mixed sample bloodstain consistent with appellant’s DNA, although that match was to a much lower probability (one in 1100 African Americans versus one in 4.9 quadrillion African Americans) than the other bloodstains.
It had been raining on the day of the robbery, and muddy shoeprints consistent with the shoes worn by appellant when he was arrested were discovered in many of the backyards in the area. Shoe prints consistent with Hamilton’s shoes were found as well. Those shoe prints, along with damaged and muddied fences, a bloody palm print on a gate, and discarded latex gloves similar to those used in the robbery enabled the police to trace appellant’s path of flight from the car crash to the backyard where he was arrested. One of appellant’s shoeprints was found about 10 feet from the gun that Officer Lasater had dropped when he was shot.
Forensic testing showed that gunshot residue was present on appellant’s hands after his arrest, which indicated that he had fired a gun, was near a gun when it was fired, or had handled a gun or other object contaminated with gunshot residue.
A cell phone recovered a few feet away from where Officer Lasater was shot was traced to appellant and contained Elijah Moore’s telephone number. A dark hooded sweatshirt with blood on the left arm cuff was found on or near the fence adjacent to the site of the shooting. The blood on the cuff of the sweatshirt appeared to correspond to a wound on appellant’s wrist at the time of his arrest. No DNA type could be developed from the sample on the sweatshirt.
Officer Robert Green was present for appellant’s arrest and testified that he was bleeding from his right wrist. Chris Coleman, a senior criminalist who examined the sweatshirt and viewed a photograph of appellant taken at the time of his arrest, testified that appellant appeared to have a wound on his left wrist that would have corresponded to the stain on the sweatshirt.
Appellant’s teenage cousin, Brian Berry, was inside the Raley’s when it was robbed. After he learned from his mother that appellant had been arrested for the robbery and shooting, he told police that he had heard one of the robbers saying, “Shut up, bitch, ” and thought the voice sounded like appellant’s. When he was called as a witness at trial, however, Berry denied that the robber’s voice was familiar to him.
Appellant’s position at trial was that the People had failed to prove he was the second robber.
DISCUSSION
1. Denial of Motion for Severance
Appellant argues that the judgment must be reversed because the trial court abused its discretion in denying his motion to sever his trial from codefendant Hamilton’s. He also complains that the joint trial with Hamilton resulted in gross unfairness due to their mutually antagonistic defenses and the submission of the case to a “death qualified” jury; i.e., a jury in which none of the panelists were opposed to capital punishment. We disagree.
a. Procedural history
Section 1098 provides that defendants who are jointly charged with a felony offense must be tried together unless the trial court orders separate trials. Appellant’s trial counsel brought a pretrial severance motion, arguing that a joint trial with co-defendant Hamilton would be prejudicial because: (1) Hamilton had confessed to the crimes during a police interrogation, and that confession could not be effectively redacted to eliminate references to appellant’s involvement, as would be required by People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton) if Hamilton did not testify; (2) the jury would be death-qualified; (3) jury confusion was likely due to the multiple issues and counts; and (4) Hamilton would be unable to give exonerating testimony to the effect that he did not prepare his gun to fire at Officer Lasater until he actually did fire.
The prosecutor opposed the motion, indicating that he would not introduce either of the defendants’ extrajudicial statements at trial. At the hearing on the motion, appellant’s counsel stated, “[I]f they’re not going to be using the post-arrest statements of either defendant then I’m not as eager to sever as I would be.... I don’t think this motion necessarily needs to be granted at this time.” The court denied the motion to sever without prejudice, indicating that it would reconsider the issue if something happened during the course of the trial to implicate Aranda-Bruton.
Counsel for codefendant Hamilton later moved to sever their trials on the ground that his defense would be inconsistent with appellant’s, in the sense that Hamilton intended to admit his involvement in the robberies and shooting while appellant would not. Appellant’s trial counsel joined the motion and argued at the hearing that appellant would be prejudiced if Hamilton admitted that appellant was his accomplice. Appellant’s counsel also renewed the argument that appellant would be prejudiced by a trial before a death-qualified jury. The trial court denied the motion.
Hamilton’s defense counsel pursued a trial strategy intended to persuade the jury to acquit her client of the attempted murder charges, reject the lying-in-wait special circumstance, and impose a sentence of life without parole rather than death. As part of this strategy, she admitted during her opening statement that Hamilton had robbed the Wells Fargo and had shot Officer Lasater. About a third of the way through her presentation, she stated, “And after the crash, what happens is both [Hamilton] and [appellant] get out of the car, and they start running.” Appellant’s counsel moved for a mistrial, which the trial court denied, indicating that it had advised the jury several times that the statements of counsel were not evidence. Hamilton’s counsel referred to appellant as Hamilton’s accomplice several more times during the course of her opening statement. Appellant’s counsel, in making his opening statement, reiterated the court’s admonition that statements by Hamilton’s counsel were not evidence and advised the jury that appellant did not admit his involvement in the offenses. During closing argument, Hamilton’s counsel again referred to appellant as the second robber.
b. Relevant law
The Legislature has expressed a preference for joint trials. (People v. Lewis (2008) 43 Cal.4th 415, 452 (Lewis).) “The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses.” (Ibid.) “Additionally, severance may be called for when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” (Ibid.)
“We review a trial court’s denial of a severance motion for abuse of discretion based upon the facts as they appeared when the court ruled on the motion. [Citation.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court’s [] ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder ‘ “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ ” (Lewis, supra, 43 Cal.4th at p. 452.)
c. Inconsistent defenses
Appellant argues that separate trials should have been held because he and Hamilton put forth different defenses: Hamilton admitted his involvement in the robbery and shooting, but sought to mitigate his culpability and obtain a lesser penalty, while appellant denied being involved at all. Appellant contends that Hamilton’s defense was “as mutually exclusive and antagonistic as it gets” because it placed appellant at the scene and helped prove his guilt.
Though separate trials may be ordered in the face of antagonistic defenses, “such conflict exists only where the acceptance of one party’s defense precludes the other party’s acquittal.” (People v. Carasi (2008) 44 Cal.4th 1263, 1296 (Carasi).) A joint trial is prohibited where “ ‘ “the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both [defendants] are guilty.” ’ [Citation.] ‘ “When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” ’ ” (Id. at pp. 1297-1298.) Severance is not required simply because one defendant attempts to shift blame to the other. (Ibid; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41 (Coffman); People v. Hardy (1992) 2 Cal.4th 86, 168.)
Appellant’s defense was not inconsistent with Hamilton’s. Hamilton acknowledged, through his counsel, that he was one of the robbers and the person who shot Officer Lasater. This position did not conflict with appellant’s claim that he was not the second robber, as the identity of the second robber was irrelevant to Hamilton’s effort to gain credibility with the jury and avoid the death penalty by taking responsibility for his own actions. Hamilton’s counsel did elicit testimony from Elijah Moore that was damaging to appellant: appellant’s involvement with the stolen getaway car, his possession of a gun about a month before the robbery, his sale of marijuana and his stay at a juvenile detention facility. But none of these subjects, except the deal involving the getaway car, tended to identify appellant as the second robber-and evidence on that subject was also introduced by the prosecution and would, in any event, have been admissible during a separate trial. (Compare Carasi, supra, 44 Cal.4th at p. 1297 [severance not required by counsel’s efforts to “subtly shift blame” to the codefendant by suggesting alternative theory pointing to codefendant in the event jury rejected primary claim that unknown third party had committed the murder].)
The more significant issue, as we see it, is not the presentation of inconsistent defenses, but the gratuitous remarks by Hamilton’s counsel during opening statement and closing argument that identified appellant as the second robber. These statements, though not evidence, resembled an Aranda-Bruton violation because they effectively presented incriminating assertions by a co-defendant who did not testify and was not subject to cross-examination. (See People v. Laursen (1968) 264 Cal.App.2d 932, 937-938, disapproved of on other grounds by Mozetti v. Superior Court (1971) 4 Cal.3d 699, 703 [prosecutor’s reference in opening statement to accomplice’s guilty plea violated Aranda].)
Notwithstanding their impropriety, the comments by Hamilton’s counsel do not require reversal. (People v. Burney (2009) 47 Cal.4th 203, 232 (Burney).) Aranda-Bruton error is not reversible per se, but is scrutinized under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (Burney, at p. 232.) “ ‘[I]f the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.’ ” (Ibid.)
The evidence that appellant was the second robber, and was thus guilty of the resulting felony murder, was overwhelming. Appellant arranged for Elijah Moore to steal the car that was used during the robbery, and, accompanied by Hamilton, received that car from Moore on the day of the robbery. He matched the general description of the person who robbed Rima Bosso at the Raley’s cashier station and then fled from the stolen getaway car after the crash. Appellant’s teenage cousin, who was coincidentally in the Raley’s during the robbery, told police he had heard the robber speak and later realized that it sounded like appellant’s voice. Appellant was seen fleeing through a nearby neighborhood after Officer Lasater had been shot and was found exhausted in a nearby backyard. He was bare-chested when he was discovered and a black tee shirt was found inside a garbage can where a bag containing loot from the robbery was found. Appellant’s DNA was consistent with DNA discovered on the discarded bag of loot and the lid of the garbage can. His cell phone was discovered close to the place where Officer Lasater was shot, as was a dark sweatshirt with blood on the arm cuff corresponding to the bleeding wound on appellant’s wrist.
In light of this compelling evidence of identity, the statements by Hamilton’s counsel that appellant was the other robber were merely cumulative. The court admonished the jury during the trial that counsel’s statements were not evidence and gave an instruction to that effect. (See CALJIC No. 0.50.) We can say beyond a reasonable doubt that appellant would not have obtained a more favorable result had the statements not been made. (Burney, supra, 47 Cal.4th at p. 242.)
d. Death-qualified jury
Appellant also argues that the court abused its discretion when it denied his request to sever his case so that he could be tried before a jury that was not death qualified. He claims the court should, at the very least, have impaneled a separate jury to hear the charges against him.
Our Supreme Court has rejected the argument that “[d]eath qualification and the resulting excusal of several prospective jurors for cause based on their views on the death penalty produces a jury which is substantially more likely to convict than a non-death-qualified jury.” (People v. Breaux (1991) 1 Cal.4th 281, 306; see also People v. Wimberly (1992) 5 Cal.App.4th 773, 793-794; People v. Kelly (1986) 183 Cal.App.3d 1235, 1241-1242.) In light of these authorities, and in the absence of any affirmative indication that this particular jury was biased as a result of its death qualification, the denial of the severance motion was not an abuse of discretion and did not result in a trial that was fundamentally unfair. (Lewis, supra, 43 Cal.4th at p. 452.)
2. Denial of Wheeler/Batson Motion
Appellant argues that the judgment must be reversed because the prosecutor excluded a prospective juror on racial grounds in violation of Wheeler, supra, 22 Cal.3d 258 and Batson, supra, 476 U.S. 79. We reject the claim.
As discussed in Wheeler and Batson, both the state and federal Constitutions bar peremptory challenges that are based on a juror’s race or membership in a similar cognizable class. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) A defendant who suspects that a juror has been challenged for a discriminatory reason must bring a motion under Wheeler/Batson, at which point the trial court will analyze the claim using a familiar three-prong test: “First, [it] must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden then shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination.” (Lenix, at p. 612.)
In this case, the prosecutor used a peremptory challenge to exclude prospective juror F.D., a 20-year old African American man. Appellant joined in a Wheeler/Batson motion made by co-defense counsel. Although the trial court did not expressly find a prima facie case of discrimination or require the prosecutor to respond, the prosecutor stated that race had played no part in his decision to excuse F.D. and offered several other race-neutral reasons for the challenge: that F.D. had stated in his written questionnaire that he knew someone who knew co-defendant Hamilton, though he later stated during questioning that he had spoken to the person and determined she did not; that given F.D.’s age, place of residence, and familiarity with someone who might know Hamilton, F.D. might travel in the same circle as the defendants; that as a 20-year old unregistered voter, F.D. lacked the maturity to make the weighty decision of whether to impose the death penalty; that F.D. seemed overly enthusiastic to serve as a juror; and that he had indicated in his questionnaire he would not consider victim impact testimony during the penalty phase of Hamilton’s case.
The trial court denied the Wheeler/Batson motion, ruling that the prosecutor had stated adequate nondiscriminatory reasons for the challenge. The panel was then immediately accepted by both sides and the jury as finally constituted included three African Americans.
Because the prosecutor in this case offered his reasons for challenging F.D., we proceed to the second and third steps of the Wheeler/Batson analysis to determine whether the record supports the trial court’s ultimate conclusion that the challenge was not made for a discriminatory purpose. (Lewis, supra, 43 Cal.4th at p. 471.) We review the trial court’s ruling for substantial evidence, presuming that the prosecutor used the peremptory challenge in a constitutional manner and “giv[ing] great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses.” (People v. Burgener (2003) 29 Cal.4th 833, 864 (Burgener).)
Substantial evidence supports the trial court’s conclusion that the prosecutor acted for permissible reasons. The first and most notable of these reasons was F.D.’s possible acquaintance with someone who knew the codefendant and his communications with that person after voir dire had commenced. As the prosecutor explained, F.D. had written in his questionnaire, “I had no contact with [co-defendant] Hamilton but I know some[one] who knows him.” When asked about this during voir dire, F.D. retracted this previous unequivocal statement, and explained, “We were at my house and seen it on the news and she thought that she know that person. Didn’t occur to me. I found out about the case and asked her did she know that person and she said no.” As the prosecutor noted, this suggested that at the very least, F.D. had disobeyed the court’s instruction to not discuss the case with anyone. This was tantamount to juror misconduct and provided cause to excuse F.D. without recourse to additional reasons. (See In re Hamilton (1999) 20 Cal.4th 273, 294.)
Another reason given by the prosecutor for his peremptory challenge of F.D. was F.D.’s statement in his written questionnaire that during the penalty phase of Hamilton’s trial, he would not consider the impact of the killing on the victim’s family: “Because they weren’t there when it happen[ed] so they should really have no effect on what someone else is doing.” The prosecutor was predictably concerned about a juror who had expressed an unwillingness to consider favorable prosecution evidence. (See § 190.3, subd. (a); Burney, supra, 47 Cal.4th at p. 258.)
The prosecutor also cited F.D.’s youth and his failure to have registered to vote as factors which reflected on his ability to make a weighty decision. Youth and immaturity are race neutral reasons that can support a peremptory challenge, and age is not a cognizable class for Wheeler-Batson purposes. (People v. Lomax (2010) 49 Cal.4th 530, 575; People v. Lewis, supra, 43 Cal.4th at p. 482; People v. Arias (1996) 13 Cal.4th 92, 139; People v. Sims (1993) 5 Cal.4th 405, 430.)
Appellant argues that the reliance on F.D.’s age and voting status was pretextual, noting that three of the seated jurors were 20 to 22 years old, and that one of those jurors was 20 years old and unregistered to vote. Though defense counsel noted in the trial court that the prosecutor had accepted these jurors, neither counsel nor the court engaged in any sort of comparative analysis of their responses.
The jury questionnaires reflect the ages of these three jurors, and one questionnaire indicates that the juror is Caucasian. The race of the other two youthful jurors is not explicit, but we infer from the discussion between counsel and the court during the Wheeler/Batson motion that they were not African American.
Although we may engage in comparative juror analysis for the first time on appeal, there are inherent limits in doing so. (Lenix, supra, 44 Cal.4th at p. 622-624.) “There is more to human communication than mere linguistic content....Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.... [¶]... When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers. [¶] Moreover, the selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled.... ‘[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view....’ [Citation.] [¶]... Each juror becomes, to a certain degree, a risk taken. Voir dire is a process of risk assessment....Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (Ibid.)
Other than pointing out the age of the three youthful jurors and the voting status of one of them, appellant does not attempt to systematically compare their responses to those of prospective juror F.D. Our own review of the written questionnaires and voir dire responses does not convince us that the prosecutor’s stated concerns about F.D.’s immaturity must have been pretextual.
A person’s maturity is not rigidly determined by chronological age, and the prosecutor’s concerns about F.D. extended beyond his youth and included related circumstances such as his apparent eagerness to serve as a juror. For example, F.D. had written in his questionnaire that he wanted to sit on the jury “for the experience and to know what to expect next time, ” “as if somehow [according to the prosecutor] this was like a precursor to real jury service.” Asked during voir dire whether he had any hesitation about being a juror on a capital case, F.D. stated, “No, no hesitation at all.” Appellant points to no similar responses by the three youthful jurors who were seated. Even more significantly, none of those jurors indicated that they knew someone who knew one of the defendants, nor was there any evidence they had violated the court’s admonition not to talk about the case.
Appellant cites the prosecutor’s concern about F.D.’s “demographic” as showing the peremptory challenge was motivated by race. The prosecutor did use the term “demographic, ” but clarified that he was referring only to F.D.’s age, the area in which he lived, and his earlier statement in his questionnaire that he knew someone who knew Hamilton. This explanation was implicitly credited by the trial court and was not inherently implausible. (See People v. Silva (2001) 25 Cal.4th 345, 386.)
Finally, it is significant, though not dispositive, that the final jury included three African Americans. (See People v. Cleveland (2004) 32 Cal.4th 704, 734; People v. Dunn (1995) 40 Cal.App.4th 1039, 1053-1054; Burks v. Borg (9th Cir. 1994) 27 F.3d 1424, 1429.) The court may “rel[y] on the fact that the government waived available strikes and permitted members of a racial minority to be seated on a jury to support a finding that the government did not act with discriminatory intent in striking another member of the same minority group.” (United States v. Canoy (7th Cir. 1994) 38 F.3d 893, 900, and cases cited therein.)
Substantial evidence supports the trial court’s conclusion that the prosecutor’s reasons for excusing F.D. were bona fide and nondiscriminatory. (Burgener, supra, 29 Cal.4th at p. 864.)
3. Introduction of Character Evidence/Ineffective Assistance of Counsel
Elijah Moore was called as a witness for the prosecution and testified during direct examination that he had known appellant since elementary school and had agreed to steal a car for him in exchange for marijuana. The evidence established that the car stolen by Moore was the same car that was used in the robbery. While being questioned by the prosecutor and counsel for co-defendant Hamilton, Moore disclosed that (1) he and appellant had been together at the Byron Boys’ Ranch, a juvenile detention facility; (2) about a month before the robbery and murder in this case, he saw appellant carrying a black automatic handgun that looked similar to the gun retrieved from the flowerpot in Larry Pitts’ backyard shortly after the robbery; and (3) appellant had sold him marijuana. Appellant argues that this testimony was inadmissible and inflammatory character evidence that violated Evidence Code sections 352 and 1101, subdivision (a), as well as his federal right to due process of law. We disagree.
As appellant acknowledges, his retained trial counsel did not lodge an objection to the evidence he now challenges. Consequently, the claims have been forfeited on appeal. (Evid. Code, § 353; People v. Mills (2010) 48 Cal.4th 158, 194; People v. Partida (2005) 37 Cal.4th 428, 433-434.) Appellant alternatively claims his attorney rendered ineffective assistance of counsel in failing to object.
A defendant claiming ineffective assistance of counsel has the burden of showing: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216, 218 (Ledesma).) The same standard applies to attorneys appointed by the court and retained counsel such as appellant’s. (Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345.)
We exercise deferential scrutiny in determining whether counsel’s performance was deficient under the first prong of the analysis. (Strickland, supra, 466 U.S. at p. 689; Ledesma, supra, 43 Cal.3d at p. 216.) An attorney is not required to make all conceivable objections or motions. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) Reversal is appropriate “only if the record affirmatively discloses no rational tactical purpose for counsel’s act or omission, ” which is a difficult burden to carry on direct appeal. (Id. at p. 1148.) As to the second prong of the Strickland analysis, which requires a showing of prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694.)
The record in this case does not affirmatively disclose that counsel lacked a tactical purpose when he failed to object to the testimony that appellant and Moore had been in a juvenile detention facility together. Although this information suggested that appellant had engaged in some type of juvenile delinquency, Moore’s testimony on the subject was brief, and counsel might have chosen not to draw the jury’s attention to it by objecting. (See People v. Gurule (2002) 28 Cal.4th 557, 610.)
As to Moore’s testimony about seeing appellant with a gun, such evidence would have been inadmissible if its only relevance was to show that appellant was the type of person who carries deadly weapons. (People v. Smith (2003) 30 Cal.4th 581, 613 (Smith).) But Evidence Code section 1101, subdivision (b) allows the introduction of prior bad acts to prove some disputed issue other than criminal propensity, such as intent, identity, motive, plan or preparation. (Smith, at pp. 613-614.) Evidence that appellant had recently possessed a gun similar to the one used in the robbery tended to show his identity as one of the robbers.
Nor was the testimony about appellant’s previous possession of a gun unduly prejudicial under Evidence Code section 352. Moore explained that appellant had lifted his shirt to show him the gun while they were attending Pittsburg Adult School together. While Moore initially believed appellant was upset with him, he soon realized that was not the case and that appellant was simply showing off in front of some girls. The evidence of prior weapon possession thus did not involve any violent conduct by appellant and was not likely to have inflamed the jury or confused the issues in the case. Failure to make a meritless objection does not amount to ineffective assistance of counsel. (People v. Thomas (1992) 2 Cal.4th 489, 531.)
Finally, defense counsel cannot be faulted for failing to object to Moore’s testimony that appellant sold him marijuana. That testimony was relevant to show the nature of the transaction by which appellant acquired the car used in the robbery. In any event, given the extraordinarily serious nature of the charges in this case, it is not reasonably probable that the jury was unduly prejudiced by information that appellant had committed the far less serious crime of selling a drug that is now legal in this state for certain purposes. (See People v. Kwolek (1995) 40 Cal.App.4th 1521, 1525, 1531-1534 [defendant’s prior conviction for selling marijuana was not unduly prejudicial as impeachment evidence in trial for attempted murder, a crime of violence].)
4. Accomplice Liability for First Degree Murder
Appellant complains that the jury instructions erroneously suggested an accomplice is “ ‘equally guilty’ ‘regardless of the extent or manner of participation’ ” in the offenses. (See CALJIC No. 3.00 [“Each principal, regardless of the extent or manner of participation is equally guilty”].) He argues that the instructions offered the jurors no guidance as to how they should assess the degree of murder for a nonkiller, and that “absent felony murder, first [] degree murder is not automatic for a nonkiller; instead, a nonkiller must either personally premeditate or, at least, the jury must be informed that the killer’s premeditated murder was natural and foreseeable to the nonkiller.”
Appellant offers no specifics in support of this contention, and our review of the instructions discloses no error. The court gave the standard CALJIC instructions for accomplice liability under theories of aiding and abetting and conspiracy and specifically instructed the jury on the elements necessary to find an aider and abettor or conspirator guilty of first degree felony murder. (CALJIC Nos. 3.00, 3.01, 3.02, 3.03, 6.11, 6.12, 8.26, 8.27.) Appellant similarly presents no cogent argument in support of his suggestion that the supposed defects in these instructions somehow bled over into the jury’s consideration of the special circumstances.
Moreover, in finding the felony-murder special circumstances to be true, the jury necessarily determined that appellant was guilty of first degree murder under a felony murder theory. (See People v. Demetrulias (2006) 39 Cal.4th 1, 25.) Appellant’s challenge to the accomplice instructions does not extend to the felony-murder theory, which applies regardless of his intent. (People v. Farley (2009) 46 Cal.4th 1053, 1111, fn. 17.) His conviction of first degree felony murder renders harmless any error in the instructions on other theories of accomplice liability. (See Demetrulias, at p. 25.)
5. Firearm Enhancement on Murder Count
The trial court imposed a 10-year enhancement on the murder count pursuant to section 12022.53, subdivision (b), based on the jury’s finding that appellant had personally used a firearm in the commission of that offense. Appellant contends there was no substantial evidence to support the enhancement because he was not the one who shot Officer Lasater and he did not use his gun to assist co-defendant Hamilton in the shooting. Although firearm use is a question of fact (People v. Frausto (2009) 180 Cal.App.4th 890, 896-897), the issue here also presents a question of law subject to our independent review: May the firearm use enhancement under section 12022.53, subdivision (b) attach to a murder count predicated on a felony-murder theory when the defendant did not fire the fatal shot but did use a firearm during the commission of the underlying felony? (Frausto, at pp. 896, 897.) We conclude the answer is yes.
Section 12022.53, subdivision (b) provides in relevant part, “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [which includes murder], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.” Section 12022.5, subdivision (a), which contains similar language, has long been construed to allow a firearm use enhancement under that section on a murder count based on a felony-murder theory in which the defendant did not fire the fatal shot but did use a weapon during the commission of the underlying felony. “If two robbers display guns to intimidate robbery victims and one shoots and kills a victim, both robbers could be found to have personally used a gun in the robbery and the felony murder, even though only one is the actual killer.” (People v. Jones (2003) 30 Cal.4th 1084, 1120; see also People v. Walker (1976) 18 Cal.3d 232, 240; People v. Lerma (1996) 42 Cal.App.4th 1221, 1224-1226; People v. Berry (1993) 17 Cal.App.4th 332, 339; People v. Hankey (1989) 215 Cal.App.3d 510, 513; People v. Johnson (1974) 38 Cal.App.3d 1, 12, disapproved on different grounds in People v. McDonald (1984) 37 Cal.3d 351, 371.)
Appellant argues that the rule recognized by these cases should not apply to him because Hamilton committed the murder after they had already fled the scene of the robbery and it is not even clear appellant was still present when the shots were fired. We are not persuaded. Our Supreme Court has recognized, “A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements.” (People v. Masbruch (1996) 13 Cal.4th 1001, 1012.) Robbery was an element of the murder of Officer Lasater under a felony-murder theory. Appellant used a firearm in connection with the robbery, which was ongoing at the time of the shooting because neither appellant nor Hamilton had reached a position of temporary safety. (People v. Gomez (2008) 43 Cal.4th 249, 256-257.) Appellant personally used a firearm in the commission of the murder by using a firearm during the commission of a robbery that was an essential element of his murder conviction.
6. Peace Officer Special Circumstance
Appellant argues that we must reverse the peace officer special circumstance under section 190.2, subdivision (a)(7) because the evidence does not support a determination that he acted with the requisite intent to kill. He additionally claims that the instructions and verdict form, combined with the prosecutor’s closing argument, misstated the elements of the peace officer special circumstance by omitting the element of intent to kill. The Attorney General commendably concedes these issues and acknowledges that the special circumstance must be reversed.
The special circumstance under section 190.2, subdivision (a)(7) applies when “[t]he victim was a peace officer... who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties....” The peace officer special circumstance can only be imposed on a defendant who is not the actual killer when that defendant acted with the specific intent to kill. (§ 190.2, subds. (c) & (d) [requiring intent to kill for defendants who are not the actual killer, except in cases involving the felony-murder special circumstance].)
It was undisputed at trial that co-defendant Hamilton was the person who killed Officer Lasater by shooting him with an automatic weapon. There was no evidence that appellant personally fired his own gun, and the prosecution’s position after the close of evidence was that appellant had jumped the fence and fled the area by the time Hamilton fired the fatal shot. But even if we assume that appellant was still present when Officer Lasater was shot, nothing in the record suggests that he encouraged Hamilton to fire the shots or assisted him in doing so. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 661 [speculation is not substantial evidence].) Because there is no substantial evidence from which it can be inferred that appellant acted with an intent to kill, the special circumstance must be reversed and retrial on the allegation is barred under double jeopardy principles. (Lewis, supra 43 Cal.4th at p. 509; Burks v. United States (1978) 437 U.S. 1, 18.)
Given our conclusion that the evidence was insufficient to support the peace officer special circumstance, we need not discuss appellant’s alternative challenges to the jury instructions, verdict form, and closing argument on this allegation. Suffice it to say that we agree the instructions and verdict form were deficient in omitting the element of intent to kill, and that the prosecutor’s closing argument was misleading because it suggested that the special circumstance applied to appellant if Hamilton’s shooting of Officer Lasater was merely a “natural and probable consequence” of the underlying robbery. As the Attorney General acknowledges, reversal of the special circumstance would also be required on these alternative grounds.
We now turn to the question of remedy. Because appellant was under 18 years of age when he committed the offense, the court had the discretion to sentence him to 25 years to life on the murder count in lieu of a sentence of life without the possibility of parole. (§ 190.5, subd. (b); People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089; People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142.) Appellant argues that the case should be remanded for resentencing because it is reasonably probable that a court considering his case in the absence of a true finding on the peace officer special circumstance would impose the less severe sentence of 25 years to life. The Attorney General agrees that a remand is appropriate.
Section 190.5, subdivision (b) provides, “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole, or, at the discretion of the court, 25 years to life.”
Although the reversal of a special circumstance does not automatically require resentencing when one or more valid special circumstances remain, we agree with the parties that this case should be remanded. The peace officer special circumstance was factually distinct from the felony murder special circumstances and cannot be viewed as merely extraneous to the court’s sentencing determination. Consequently, the reversal of that special circumstance could affect a sentencing court’s assessment of the seriousness of the case. (Contrast People v. Moore (1988) 47 Cal.3d 63, 93 [extraneous multiple-murder special circumstance was harmless and did not require reversal of death penalty judgment where jury knew the actual number of murders committed when it made its penalty determination]; People v. Wade (1988) 44 Cal.3d 975, 998 [reversal of invalid “heinous killing” special circumstance did not require reversal of death sentence where valid “torture murder” special circumstance was substantially similar].) We will remand the case so the trial court can reconsider the sentence for appellant’s murder conviction in light of our reversal of the peace officer special circumstance.
7. Felony-Murder Special Circumstances
Appellant argues that the three felony-murder special circumstances found true under section 190.2, subdivision (a)(17), must be reversed because the instructions given to the jurors allowed them to return a true finding without determining that he harbored the necessary mental state. He also complains that the instructions did not require a continuous transaction or a causal nexus between the underlying robberies and the killing. We disagree.
When a felony-murder special circumstance is alleged against a defendant who is not the actual killer, the prosecution must prove that the defendant acted with either the intent to kill or with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subds. (c) & (d); People v. Proby (1998) 60 Cal.App.4th 922, 927-928 (Proby).) The phrase “reckless indifference to human life” means a “subjective awareness of the grave risk to human life created by his or her participation in the underlying felony.” (People v. Estrada (1995) 11 Cal.4th 568, 578 (Estrada).) The requirement of “reckless indifference” comports with the decision in Tison v. Arizona (1987) 481 U.S. 137, 157-158, in which the United States Supreme Court concluded, “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.”
Because appellant was not the actual killer and because there was no substantial evidence that he acted with the intent to kill, the jury was required to find that he was a major participant in the underlying robbery and was subjectively aware of the risk to human life caused by his participation in that offense. (Estrada, supra, 11 Cal.4th at p. 578.) The court gave CALJIC No. 8.80.1, which provided in relevant part, “If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree[], or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime of Robbery which resulted in the death of a human being, namely Officer Larry Lasater. [¶] A defendant acts with reckless indifference to human life when that defendant knows or is aware that his acts involve a grave risk of death to an innocent human being.” (Italics added.)
CALJIC No. 8.80.1 unequivocally provides that a felony-murder special circumstance can be applied to a nonkiller only if that person acted with the intent to kill or with reckless indifference to human life. We presume the jury followed CALJIC No. 8.80.1 and found true the mental state element necessary for the felony-murder special circumstance. (People v. Sanchez (2001) 26 Cal.4th 834, 852; Estrada, supra, 11 Cal.4th at pp. 577-578; Proby, supra, 60 Cal.App.4th at p. 933.)
Appellant argues that the jury might have mistakenly believed that it could find the felony-murder special circumstance true so long as it concluded the murder was a “natural and probable consequence” of the robbery under an objective standard, whether or not appellant subjectively appreciated the risk to human life. He notes that the jury was instructed with CALJIC No. 3.02 and 8.26, which allowed a conviction of first degree murder if that murder was a natural and probable consequence of aiding and abetting a robbery, or a natural and probable consequence of a conspiracy to commit a robbery. (See, generally, People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [murder and other offenses as natural and probable consequences of aiding and abetting target crime]; People v. Zacarias (2007) 157 Cal.App.4th 652, 656 [kidnapping as natural and probable consequence of conspiracy to commit alien transportation].) Appellant also points to language in the verdict form on the peace officer special circumstance (which we have elsewhere reversed), that required a finding that, among other things, the killing “was a natural and probable consequence of that robbery.”
In assessing a claim of instructional error or ambiguity, we must determine whether the defendant has demonstrated a reasonable likelihood the jury was misled in the manner suggested. (People v. Cross (2008) 45 Cal.4th 58, 67-68.) “We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions.” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.) Here, it is not reasonably likely the jury would have applied the natural and probable consequences doctrine to the felony-murder special circumstances when the doctrine was specifically limited to the substantive offense of first degree murder. Nor is there any basis for concluding that the language on the verdict form pertaining to the peace officer special circumstance influenced the jury’s finding on the felony-murder special circumstances.
Similarly unavailing is appellant’s argument that the instructions misstated the causal connection between the underlying felony and the murder. The court gave CALJIC No. 8.81.17, which correctly advised the jury that the special circumstances applied to a murder “in the commission” of a robbery or “during the immediate flight” therefrom, and further specified that the murder must have been “committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the robbery was merely incidental to the commission of the murder.”
“The felony-murder special circumstance applies to a murder committed while the defendant was engaged in, or was an accomplice in the commission of, the attempted commission of, or the immediate flight after committing or attempting to commit, various enumerated felonies.... [Citation.] A strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that... the killing and the felony were part of one continuous transaction.” (Coffman, supra, 34 Cal.4th at p. 87.) CALJIC No. 8.81.17 has been approved by the Supreme Court, and its requirement that the murder be committed “during” the robbery or the immediate flight from the robbery sufficiently stated the causation required. (See People v. Hughes (2002) 27 Cal.4th 287, 376-380 [approving of CALJIC No. 8.81.17 as an accurate statement of law].)
8. Post-Trial Competency Determination
Appellant contends he was denied his right to a jury trial on the issue of his mental competency, an issue that arose for the first time after the jury had returned its verdict. (§§ 1367-1370.1.) We reject the claim.
a. Competency proceedings
Appellant was represented by retained counsel during the trial. He discharged this attorney after the verdict and the court appointed new counsel to represent him during post-verdict proceedings. Appointed counsel filed a motion for new trial alleging, among other things, that appellant had been mentally incompetent during his trial and that his trial counsel was ineffective in failing to raise the issue.
Psychologist Edward Hyman, Ph.D., was retained by defense counsel to examine appellant and determine whether he had been legally competent during the trial. Dr. Hyman prepared a declaration in which he opined that appellant had been incompetent during his trial and remained so at the time of his post-trial examination. “In the course of my examination of Mr. Moffett I noted a compellingly impaired breadth of requisite cognitive skills, lack of actual knowledge of factors integral to adjudicative competency, as well as gross pathology and profoundly impaired perception of himself in his role as defendant in the instant matter and in his relationship to his defense attorneys.”
Although defense counsel initially declined to declare a doubt as to appellant’s current competency, he did declare a doubt before a hearing on the motion for new trial was held. The court indicated that it was skeptical of the incompetency claim, noting that in addition to observing appellant in the courtroom, it had conducted an in camera review of a number of documents that were seized from his jail cell after it came to light that his trial counsel had mistakenly provided him with documents containing identifying information about witnesses. The court believed the information contained in many of those documents (whether they were written by appellant directly or with assistance of another person) belied the suggestion appellant did not understand the nature of the criminal proceedings against him. Despite its reservations, the court suspended criminal proceedings and appointed psychologist Larry Wornian to examine appellant and render an opinion as to his current competency to proceed. It apparently believed that this step was necessary to avoid a potential reversal on appeal given defense counsel’s expression of a doubt. The court later clarified that it had not itself declared a doubt as to appellant’s competency.
Dr. Wornian wrote an initial report stating that appellant was incompetent, based on the results of an evaluation using the MacArthur Competence Tool-Criminal Adjudication (MacCat-CA) instrument. The prosecutor then provided him with additional materials from the case, including an investigator’s report, the transcript from a Marsden hearing at which appellant sought to dismiss his trial counsel, sworn declarations by appellant that had been filed with the court, inmate requests for information that had been filed by appellant, and several hours of tape recorded telephone calls between appellant and his family members and friends (which had been made after Dr. Hyman executed his declaration stating that appellant was incompetent). After reviewing these materials, Dr. Wornian wrote a report in which he concluded he had been fooled with “deceit and manipulation, ” and that while appellant suffered from antisocial personality disorder, he was “eminently competent.” Noting that there was some controversy as to whether appellant was the author of some of the legal materials he had signed, Dr. Wornian concluded, “Even had Mr. Moffett had a whole team of jail-house lawyers helping him to prepare this material, the details contained in these materials bespeaks a level of memory function that runs quite contrary to his profoundly deficient performance on the MacCat-CA, for any discussions that might have ensued between himself and ‘cuddy’ would have entailed the ability to keep track of the many details discussed.”
The trial court did not rely on a report prepared by Dr. Paul Good, a psychologist retained by the prosecution, having received that report only shortly before the hearing. Dr. Good had found no evidence of retardation and concluded that appellant’s scores on a number of tests suggested that he was feigning incompetence.
The trial court reinstated criminal proceedings after determining there was “absolutely no evidence” of incompetency. Noting that it had interacted with appellant to a greater degree than it did with most criminal defendants, and had viewed several writings seized from his jail cell, the court characterized appellant as appearing “extremely intelligent and very on track with what was going on in court.” The court denied defense counsel’s request for a jury trial on the issue of competency.
b. No substantial evidence of present incompetency
Federal due process and state law prohibit the conviction or sentence of a defendant who is mentally incompetent. (People v. Blair (2005) 36 Cal.4th 686, 711.) A defendant is incompetent “if, as a result of 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.” (§ 1367, subd. (a); see also Lewis, supra, 43 Cal.4th at p. 524 [defendant is incompetent if he lacks a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational understanding of the proceedings].) A defendant is presumed to be mentally competent unless proved otherwise by a preponderance of the evidence. (People v. Ramos (2004) 34 Cal.4th 494, 507 (Ramos).)
By statute, a full hearing must be held when the court declares a doubt about the defendant’s competency and defense counsel confirms this doubt. (§ 1367, subd. (a); see also People v. Rogers (2006) 39 Cal.4th 826, 847 (Rogers).) The statutory right to a hearing includes the right to a jury trial. (§ 1369; People v. Masterson (1994) 8 Cal.4th 965, 972.) Additionally, when a defendant presents substantial evidence of incompetency to stand trial, due process requires a hearing on the issue. (People v. Welch (1999) 20 Cal.4th 701, 738.) There is, however, no constitutional right to a jury in a competency proceeding. (Masterson, at p. 969.)
The court in this case did not itself declare a doubt as to appellant’s competency. Instead, it suspended proceedings to obtain an evaluation from a court-appointed expert after appellant’s appointed counsel, somewhat reluctantly, declared such a doubt. Counsel’s declaration of doubt was not sufficient to require a full hearing as a matter of statutory right under section 1367, subdivision (a). (People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-1112; People v. Howard (1992) 1 Cal.4th 1132, 1163-1164.)
Appellant argues that the trial court was required to hold a full hearing based on Dr. Hyman’s declaration, which amounted to substantial evidence of his present incompetency. In considering this claim, we give great deference to the trial court’s decision whether to hold a competency hearing and review its ruling for abuse of discretion. (Lewis, supra, 43 Cal.4th at p. 525; Ramos, supra, 34 Cal.4th at p. 507.) As an appellate court, we are in “ ‘ “ ‘no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.’ ” ’ ” (People v. Marks (2003) 31 Cal.4th 197, 220.)
“ ‘ “If a psychiatrist... who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied.” ’ ” (Rodrigues, supra, 8 Cal.4th at pp. 1110-1111.) The trial court here did not abuse its discretion when it concluded that Dr. Hyman’s declaration did not meet this test. The declaration, though unequivocal in stating Dr. Hyman’s ultimate opinion that appellant was incompetent, consisted of conclusory statements and generalities. (See People v. O’Dell (2005) 126 Cal.App.4th 562, 572 [expert’s opinion cannot constitute substantial evidence if unsubstantiated by facts].)
More importantly, Dr. Hyman’s declaration was not substantial evidence when it did not adequately address the other circumstances that persuaded Dr. Wornian appellant was malingering-appellant’s communications with the court during the course of the proceedings, his communications with family and friends during telephone calls made after Dr. Hyman had rendered his opinion, the content of the numerous documents appellant had prepared or initiated regarding his case, and the somewhat suspicious timing of the issue, in that no one involved in the trial seemed to have any inkling of possible incompetency until after the verdict was rendered. (See People v. Weaver (2001) 26 Cal.4th 876, 953-954 [psychiatrist’s testimony that defendant was incompetent was not substantial evidence when he had not conducted examination and had not seen defendant’s testimony or interactions with defense counsel]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047-1049 & fn. 25 [expert opinion that defendant was incompetent was not substantial evidence when court concluded it was not credible].) Under the particular circumstances of this case, the court did not err in concluding Dr. Hyman’s declaration was insufficient to raise a reasonable doubt as to competency. (Ramos, supra, 34 Cal.4th at p. 507; see People v. Jones (1991) 53 Cal.3d 1115, 1152-1154.)
9. Motion for New Trial
In the motion for new trial, appellant’s appointed counsel alleged that his former trial attorney had provided ineffective assistance in three respects: (1) he failed to declare a doubt as to appellant’s competency; (2) he did not advise appellant to enter a plea of not guilty by reason of insanity or present a defense of diminished actuality; and (3) he did not move to sever the trial on the ground that appellant would be prejudiced by trial before a death-eligible jury. We reject appellant’s claim that the trial court erred when it denied the motion on these grounds.
a. Evidence presented and trial court’s ruling
In support of the motion for new trial, appellant presented a declaration by David Briggs, a criminal defense attorney who opined that trial counsel should have known appellant was “mentally disordered” and should have conducted an investigation into the defenses available. Trial counsel had advised Briggs that he observed no evidence that appellant suffered from a mental illness, but Briggs believed that counsel should have been alerted to the possibility by discovery revealing that appellant’s father had told investigators “he did not think his son was capable of formulating a plan to rob the bank or the store, and that he did not think his son could drive a car.” Additionally, appellant’s grandmother reported that appellant had been born prematurely and appellant had told Briggs that when he was “a little kid” he fell and hit his head on a brick. Briggs opined that due to the strength of the evidence identifying appellant as one of the robbers, trial counsel did not act reasonably in pursuing a defense of mistaken identity in lieu of one that focused on diminished mental state.
During the hearing on the motion, Dr. Hyman testified that he had administered a number of psychodiagnostic tests to appellant and concluded from those test results that appellant had not been competent during his trial. He estimated appellant’s IQ to be between 68 and 77 and concluded that appellant was unable to grasp the notion of felony murder and how it differed from the common notion of murder. Dr. Hyman believed that appellant’s ability to process information was exceptionally slow and that his memory was poor. He did not believe appellant was malingering, although he had reviewed the report of the prosecution’s expert, Dr. Good, who concluded appellant had manipulated the tests administered. Dr. Hyman acknowledged that he had not spoken with appellant’s trial counsel before rendering his opinion, although he knew from speaking to attorney Briggs that trial counsel had reported there was no sign that appellant had any mental illness and no family member had raised the issue. He also acknowledged that appellant had received satisfactory grades in school between 1999-2001.
The trial court denied the new trial motion. It rejected defense counsel’s argument that appellant had been incompetent during his trial, indicating that it had reviewed a number of writings that were created by appellant or at his direction, that it had observed him in court, and that it had found him to be “a bright and clever young man who managed to convince at least one mental health expert and one legal professional that he was mentally impaired.” The court believed that Dr. Hyman’s opinion was not credible, and it found particularly troubling his failure to discuss the case with appellant’s trial counsel. The court was unconvinced by defense counsel’s argument that appellant had not composed many of the documents on which the court relied as evidence of his competency, noting that if appellant were as impaired as Dr. Hyman claimed, he “couldn’t have possibly related enough coherent information to a third party to have authored, even for him to copy, all the correspondence that has been at issue in this case.”
The court also rejected the claims of ineffective assistance, stating that it was concerned the defense legal expert had not reviewed the transcript of the trial before reaching an opinion that trial counsel was incompetent. It concluded that none of the information before trial counsel triggered a duty to examine the competency issue and that the facts of the robbery would not have supported an insanity defense. The court also noted that trial counsel had filed a motion to sever appellant’s trial and had raised the severance issues cited in the motion for new trial.
b. The motion was properly denied
Appellant’s argument on appeal focuses on the rejection of his ineffective assistance of counsel claims. When the trial court denies a motion for new trial on this ground, its factual findings will be upheld if supported by substantial evidence, and the legal conclusions to be drawn from those facts are subject to our independent review. (People v. Taylor (1984) 162 Cal.App.3d 720, 724, 725.)
Substantial evidence supports the trial court’s finding that Dr. Hyman’s opinion was not credible and that the other indications of appellant’s mental state overwhelmingly showed that he was legally competent during his trial. There being no credible evidence of actual incompetency, we cannot say that trial counsel’s performance fell below an objective standard of reasonableness when he failed to raise the issue. Nor does the record establish that counsel could have obtained a better result for appellant by declaring a doubt as to his competency under section 1367 when that claim certainly would have been rejected. (Strickland, supra, 466 U.S. at p. 687.)
Similarly, trial counsel cannot be faulted for failing to pursue a defense of not guilty by reason of insanity. Legal insanity is a notoriously difficult standard to meet, requiring proof that the defendant was “incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (§ 25; People v. Lawley (2002) 27 Cal.4th 102, 169-170.) The obvious intentionality of the robbery in this case-appellant’s procurement of a getaway car, his use of a facial covering to conceal his identity, his rapid flight from the scene of the crime and from the police after the car crash, his discarding of incriminating evidence during flight-are not the actions of a person who was legally insane. Trial counsel did not compromise a meritorious insanity defense.
Finally, there is no merit to the claim that counsel was ineffective in failing to move for severance. As the trial court observed when denying the motion for new trial, appellant’s counsel did move to sever his trial and sought a mistrial when codefendant’s counsel made comments during opening statement that potentially implicated Aranda-Bruton. The trial court was fully aware of the severance issues before it, and appellant does not explain what additional argument or evidence might have caused the court to change its ruling.
10. Denial of Post-Trial Marsden Motion
Appellant argues that the case must be remanded because the trial court failed to hold a hearing on a written Marsden motion filed just before the sentencing hearing. (Marsden, supra, 2 Cal.3d 118.) We disagree, because the trial court had already considered the issues presented during previous Marsden hearings, and because appellant’s written motion was sufficient to allow the trial court to evaluate his claims.
In early July 2008, after the trial court declared appellant to be competent but before it ruled on his motion for new trial, appellant made a Marsden motion requesting new appointed counsel. The trial court held a hearing and denied the motion. On July 23, 2008, during the hearing on the motion for a new trial, defense counsel advised the court that appellant wanted to bring another Marsden motion; the court held a hearing and denied that motion as well. On July 24, 2008, one day after the motion for new trial was denied and on the same date as the sentencing hearing, appellant filed a written Marsden motion. The court indicated at the commencement of the sentencing hearing that it had received and read the latest written Marsden motion, but it declined to hold a hearing and denied the motion as containing no information that had not been previously considered.
The reporter’s transcript indicates that a hearing was held on July 11, 2008; the minute order indicates it was held on July 8, 2008.
When a defendant seeks new counsel on the ground that his appointed attorney is providing ineffective representation, he must be given an opportunity to explain the basis for the contention and describe specific instances of the attorney’s alleged inadequate performance. (Marsden, supra, 2 Cal.3d at pp. 124-125; Smith, supra, 30 Cal.4th at p. 604.) “A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” (Smith at p. 604.)
Though a court must afford a defendant the opportunity to state his reasons for dissatisfaction with appointed counsel, “a defendant is not entitled to keep repeating and renewing complaints that the court has already heard.” (People v. Vera (2004) 122 Cal.App.4th 970, 980; see also People v. Clark (1992) 3 Cal.4th 41, 104.) Here, appellant argues that the court should have held a hearing on his final Marsden motion to consider issues relating to the breakdown of the attorney-client relationship, his competency, and his complaints about personal history records relevant to sentencing that had been subpoenaed but had not been received. But these issues were addressed during the earlier Marsden hearings and the competency hearing itself. Given that the most recent Marsden hearing had been held just one day before the written Marsden motion was filed, the court did not abuse its discretion when it declined to hold another hearing on the duplicative claims. Appellant does not challenge the denial of the previous Marsden motions in this appeal.
Additionally, appellant’s Marsden claims were set forth exhaustively in his written motion. “When the basis of a defendant’s dissatisfaction with counsel is set forth in a letter of sufficient detail... a full-blown hearing is not required.” (People v. Wharton (1991) 53 Cal.3d 522, 580 (Wharton); see also People v. Freeman (1994) 8 Cal.4th 450, 481 [court properly denied without a hearing a written Marsden motion that did not state adequate grounds for substitution of counsel]; People v. McElrath (1985) 175 Cal.App.3d 178, 184 [Marsden does not require court to question appointed counsel about a defendant’s claims when an explanation is unnecessary to the court’s resolution of request for substitute counsel].) A hearing on the final Marsden motion was not necessary because his written paperwork was sufficiently detailed to allow the court to consider appellant’s complaints. (See People v. Gay (1990) 221 Cal.App.3d 1065, 1071, fn. 1.) It is apparent from the record that the trial court understood the nature of the claims presented but concluded that defense counsel had acted properly, a determination whose substance is not challenged on appeal. (See Wharton, at pp. 580-581.)
11. Cumulative Error
Appellant argues that the errors pertaining to his murder conviction require reversal when considered as a whole even if they are harmless when considered individually. We disagree. We have found only two trial errors in this appeal: the true finding on the peace officer special circumstance and the statements by codefendant’s counsel that appellant was the second robber. The first of these errors will be remedied by our reversal of the true finding on the special circumstance and a remand for resentencing. The second, as we have previously discussed, was harmless. We find no synergy between those two errors creating cumulative prejudice. (See People v. Holt (1984) 37 Cal.3d 436, 459; People v. Bradford (1997) 14 Cal.4th 1005, 1057.)
12. Sentencing Issues
As we have already indicated, the case must be remanded for resentencing due to the reversal of the peace officer special circumstance. We now address the various other sentencing issues presented by the remand.
a. Resentencing before the same trial judge
Appellant seeks resentencing before a different judge. He questions the impartiality of the Hon. Laurel S. Brady, who presided over his trial, based on three disclosures she made before the trial began: (1) that upon learning of Officer Lasater’s death, she had sent a letter of condolence to his mother, an attorney whom she knew from the legal community; (2) that she and her husband had donated to a relief fund for slain police officers prior to the killing in this case; and (3) that her court clerk had made a contribution to Officer Lasater’s family.
Code of Civil Procedure section 170.1, subdivision (c) provides, “At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.” The appellate court’s power to disqualify sentencing judges on remand “ ‘should be use sparingly and only where the interests of justice require it.’ [Citation.]” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256.) The interests of justice require resentencing by a different judge when “a reasonable person might doubt whether the trial judge was impartial [citation], or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303.)
None of the disclosures made by Judge Brady are reasonably likely to affect her partiality on remand. Notably, the defense did not file a motion to disqualify Judge Brady after the disclosures were made, and appellant does not allege on appeal that she was biased in her handling of the case below. Appellant suggests that Judge Brady will face “community pressure” to impose the maximum available sentence on the murder charge, but he does not explain why a different judge from the same bench would not face the same pressure, or why Judge Brady would be particularly susceptible to such pressure. He also argues that he “deserves a section 190.5 determination by a judge that knows he is not subject to the peace officer special circumstance found true as to his codefendant.” We have every reason to expect that Judge Brady will consider the reversal of the peace officer special circumstance and the effect of its absence from the case when she resentences him on remand.
b. Permissible sentence on murder count
Appellant argues that given his age and “nonextensive record, ” a prison sentence of life without parole is an abuse of discretion under section 190.5, subdivision (b). He also contends that the sentence amounts to cruel and unusual punishment. Because the trial court may impose a different sentence on remand, we need not consider these issues.
c. Section 654
The trial court sentenced appellant to a consecutive term for the robbery of Rima Bosso (count 2) and concurrent terms for the robberies of Adrianna Beaman and Anjila Sanehi (counts 3 and 4). Appellant argues that the sentences on all three robbery counts should be stayed under section 654 because they form the basis for appellant’s liability under the felony-murder rule. We disagree.
Section 654, subdivision (a) provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” Subject to certain exceptions, this statute prohibits multiple punishment (including the imposition of concurrent prison terms) for a single criminal act or an indivisible course of criminal conduct. (See People v. Davey (2005) 133 Cal.App.4th 384, 390; People v. Alford (2010) 180 Cal.App.4th 1463, 1467-1468.) One such exception to section 654 is the “multiple victim” exception, which “permits one unstayed sentenced per victim of all the violent crimes the defendant commits incidental to a single criminal intent.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.)
The three robbery counts in this case were violent offenses against three separate victims and were not subject to section 654. And though a defendant convicted of murder under a felony-murder theory may not be punished for both that offense and the underlying felony when both involve the same victim, multiple punishment is appropriate when separate victims are involved. (People v. Young (1992) 11 Cal.App.4th 1299, 1311-1312.) The murder victim in this case, Officer Lasater, was not the victim of any of the three robberies, and sentence was properly imposed on all four counts. (Id. at p. 1312.)
d. Calculation of sentence on robbery counts
In pronouncing sentence, the trial court characterized the term on the robbery in count 2 as “the mid-term of four years.” The court also imposed a concurrent sentence of “one-third of the mid-term, which is 16 months” for the robberies in counts 3 and 4, as well as a term of three years, four months (one-third the ten-year term) for each of the two firearm enhancements under section 12022.53, subdivision (b) that were attached to those counts. As appellant correctly notes, and as the Attorney General concedes, second degree robbery carries a term of two, three or five years, meaning that the four-year term on count 2 was unauthorized. (§ 213, subd. (a)(2).) Additionally, section 1170.1, subdivision (a) provides, “The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Italics added.)
Because the court intended to make counts 3 and 4 concurrent to count 2, it should not have utilized the one-third-the-middle-term formula when calculating the sentence on those counts and the attached firearm enhancements. On remand, the court should reconsider its sentence on theoe counts and impose a term authorized by law.
DISPOSITION
The peace officer special circumstance under section 190.2, subdivision (a)(7) is reversed. The remaining convictions and true findings are affirmed. The sentence is vacated and the case is remanded for resentencing.
We concur. SIMONS, Acting P. J., BRUINIERS, J.