Halvorsen

A jury convicted defendant Arthur Hans Halvorsen of two counts of first degree murder (Pen. Code, § 187; unless otherwise specified, all statutory references are to the Penal Code), one count of attempted murder (§§ 187, 664), and one count of assault with a firearm (§ 245, subd. (a)(2)), a lesser included offense of the charged offense of attempted murder. The jury found true allegations that defendant used a firearm in the commission of all of the offenses (§ 12022.5) and multiple-murder special-circumstance allegations relating to the first degree murder counts (§ 190.2, subd. (a)(3)). After a penalty phase, the jury fixed the penalty at confinement in state prison for life without the possibility of parole for one of the murder counts, but was unable to reach a verdict for the remaining murder count. The trial court declared a mistrial as to that count. After retrial on the penalty for that count, a second jury fixed the penalty at death. The trial court denied defendant’s motion for new trial and application for modification of penalty, and sentenced him accordingly. 1 This appeal is automatic. (§ 1239, subd. (b).)

*385 For the reasons that follow, we affirm…

I agree with the majority’s reversal of the judgment of death because of the trial court’s error in denying defendant’s motion for self-representation at the penalty phase of the trial; and I agree with vacating as duplicative one of the two multiple-murder special-circumstance findings. I disagree, however, with the majority’s affirmance of the judgment as to guilt, and in particular with the affirmance of the two convictions for murder in the first degree and the remaining multiple-murder special-circumstance finding. I would vacate those convictions and that finding because of the trial court’s prejudicial error in allowing the prosecutor to ask a defense expert witness, Dr. William Vicary, a forensic psychiatrist, whether he thought there was substantial evidence to support a “psychiatric defense” to the charges in this case. Dr. Vicary’s opinion was inadmissible under Penal Code section 29, and its admission resulted in substantial prejudice to defendant on the first degree murder charges and the associated special circumstance allegation, requiring reversal.

*435 I

On March 31, 1985, in three separate incidents spanning less than two hours, defendant shot four men, killing…

A jury convicted defendant Arthur Hans Halvorsen of two counts of first degree murder (Pen.Code, § 187; unless otherwise specified, all statutory references are to the Penal Code), one count of attempted murder (§§ 187, 664), and one count of assault with a firearm (§ 245, subd. (a)(2)), a lesser included offense of the charged offense of attempted murder. The jury found true allegations that defendant used a firearm in the commission of all of the offenses (§ 12022.5) and multiple-murder special-circumstance allegations relating to the first degree murder counts (§ 190.2, subd. (a)(3)). After a penalty phase, the jury fixed the penalty at confinement in state prison for life without the possibility of parole for one of the murder counts, but was unable to reach a verdict for the remaining murder count. The trial court declared a mistrial as to that count. After retrial on the penalty for that count, a second jury fixed the penalty at death. The trial court denied defendant's motion for new trial and application for modification of penalty, and sentenced him accordingly. [1] This appeal is automatic. (§ 1239, subd. (b).)

For the reasons that follow, we affirm…