Bivert

A jury convicted defendant Kenneth Ray Divert of the first degree murder of Leonard Swartz. (Pen. Code, § 187.) The jury found that defendant used a deadly weapon in the commission of the murder (§ 12022, subd. (b)) and found true the special circumstance allegations of prior conviction of first degree murder and lying in wait (§ 190.2, subd. (a)(2), (15)). The jury further convicted defendant of assault with a deadly weapon by a life prisoner (§ 4500) and found he had been convicted in 1988 of three counts of first degree murder (§§ 187, 1170.12, subd. (c)(2), 667, subd. (a)).

After a penalty trial, the jury returned a verdict of death. The court denied a motion for a new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).)

I. FACTS

A. Guilt Phase

Defendant was convicted of charges related to the November 23, 1996, assault of inmate Rick Dixon and the February 5, 1997, murder of inmate Leonard Swartz.

1. The People’s Case

a. Assault of Rick Dixon

In the fall of 1996, defendant and Dixon were inmates at the Salinas Valley State Prison (SVSP) in Monterey…