People v. Delgado

Filed 2/27/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S089609

v. )

) Kings County

ANTHONY GILBERT DELGADO, ) Super. Ct. No. 99CM7335

)

Defendant and Appellant. )

____________________________________)

Defendant, Anthony Gilbert Delgado, killed two fellow inmates while

serving a 25-year-to-life sentence in Corcoran State Prison. A jury convicted him

of two counts of first degree murder,1 with the special circumstances of lying in

wait2 and multiple murders;3 two counts of assault by a life prisoner with malice

aforethought,4 with findings that the assaults proximately caused the victims‟

deaths; battery by a prisoner on a correctional officer;5 and possession of a sharp

instrument by a prisoner.6 It also found he had suffered two prior felony

convictions within the meaning of the “Three Strikes” law.7

1 Penal Code sections 187, subdivision (a) and 189. Further undesignated

statutory references are to the Penal Code.

2 Section 190.2, subdivision (a)(15).

3 Section 190.2, subdivision (a)(3).

4 Section 4500 (hereafter aggravated assault by a life prisoner).

5 Section 4501.5.

6 Section 4502, subdivision (a).

7 Sections 667, subdivisions (d), (e) and 1170.12.

1

The jury returned a death verdict and the trial court entered a conforming

judgment,8 as well as two consecutive terms of 25 years to life for the battery and

weapon possession counts. This appeal is automatic. We affirm the judgment in

its entirety.

I. FACTS

A. Guilt Phase

1. Murder of Frank Mendoza

On September 30, 1998, defendant and Frank Mendoza shared a cell.

Around 11:15 p.m., an officer noted that both men were lying on their bunks

watching television. About 25 minutes later, defendant called out, and Officer

Carmona went to investigate. He saw Mendoza slumped forward on his knees

between the two beds. Defendant calmly walked over to Mendoza, lifted him up

by a cloth wrapped around his neck, and dropped him back to the ground.

Mendoza had been strangled to death. A pillowcase covered his face, secured by a

torn bed sheet. A white sock and second torn sheet were tied around his mouth.

Written on the back of Mendoza‟s T-shirt were the words: “There‟s consequences

to everything. He paid his and I‟m to pay mine, too. Toro.”

Defendant gave a taped statement about the killing and reenacted the crime.

Mendoza had verbally abused defendant and bragged about his prior status as a

lieutenant in the Nuestra Familia prison gang. Defendant warned he would “take

[Mendoza] out” if he continued this behavior. Mendoza persisted, so defendant

decided to kill him. Already serving a life sentence, defendant had nothing more

to lose. Defendant “knew exactly when [he] was going to do it.” After nighttime

8 The court imposed sentences of death on the murder convictions and the

convictions for aggravated assault by a life prisoner, but stayed the latter two

sentences pursuant to section 654.

2

cell check, he covered the overhead light and wedged paper in the cell door to

prevent entry. Mendoza seemed nervous, so defendant watched television to put

him at ease. When the opportunity arose, defendant choked his victim for over

four minutes, which he timed. Mendoza struggled, but eventually defendant could

“fe[el] the life come out of him.” Defendant tied a sheet and a sock around his

neck, pulling it as tight as he could. He watched Mendoza for a while to make

sure he was dead. Defendant felt no remorse. He said Mendoza “had it coming.”

He wrote a message on Mendoza‟s T-shirt and watched more television. He then

removed the paper from the door and alerted the guards.

2. Murder of Kevin Mahoney

On July 2, 1999, defendant and inmate Kevin Mahoney, Jr., were placed in

an exercise yard together. About two hours later, a security alarm summoned

Officer Robert Todd to the yard. Mahoney was lying facedown in a pool of blood.

He had no pulse or respiration. There were lacerations and bruises on his face and

body, and a subdural hemorrhage at the back of his head. Two T-shirts were tied

around his neck. A nearby wall bore blood splatters and a “happy face” drawn in

blood. Defendant‟s feet and legs were covered in blood. While waiting in a

holding cell, defendant told one officer, “You guys gave me Three Strikes on

some chicken shit fight, so now I‟m going to earn mine. I got two now, and I got

one more to go.”

A surveillance tape captured the attack. When defendant and Mahoney

were placed in the yard, they shook hands, then walked and sat separately for

several minutes. Later they walked together. Approximately 52 minutes after

they entered the yard, defendant attacked Mahoney without warning, punching and

kicking him repeatedly for about 30 seconds. After the attack, Mahoney sat on the

ground as defendant paced back and forth. Defendant attacked again about 12

3

minutes later, striking Mahoney several times in the head with a shoe. Mahoney

remained seated; defendant continued to pace. A third attack occurred about 27

minutes after the second. Defendant grabbed Mahoney from behind and dragged

him into a shadowy corner. He choked his victim for over four minutes, then

picked up a T-shirt and tied it around Mahoney‟s neck. Defendant resumed

pacing, repeatedly returning to the body and stomping on it.

Mahoney was strangled to death. His blunt force injuries were consistent

with having suffered repeated blows.

Again, defendant gave a taped statement and reenacted the crime. He

decided to kill Mahoney as soon as they were put in the yard together, and put him

at ease by telling him that he wanted no trouble. Defendant judged Mahoney an

“[e]asy” mark. Defendant had planned to lunge at his victim and snap his neck,

but he was unable to grip him securely. He resorted to punching and kicking

instead. Defendant attacked Mahoney three times “until I was able to get him in a

choke hold and drag him off into the corner. And that‟s where I wanted him.”

Defendant explained that he moved Mahoney to that location because it would be

more difficult for guards to shoot him. He choked the struggling man until he

stopped breathing, then tied torn T-shirts around his neck. Defendant could hear

Mahoney “gurgling in his [own] blood” which angered him. Intent on “caus[ing]

as much injury . . . as I could,” he used his foot to repeatedly slam Mahoney‟s

head into the concrete.

Defendant told an investigator, “I did it so what, what can you do to me[?]

No one can do nothing to me.” As to motive, he said: “I‟ve [sic] snapped when

. . . they gave me life for that stupid ass shit . . . a little over a[] year and a half ago.

When they gave me three strikes for that shit, I told myself, made a deal with the

devil, you give me the opportunity man to pick up each murder for each one of

those strikes we‟re cool. So that‟s . . . my pack [sic] with the devil man, I already

4

got two that‟s my two strikes. I‟m gonna . . . earn each and every one of my

strikes.” He confirmed that he would kill again, saying “I hope there gonna [be]

ten or fifteen” more victims. According to defendant, “My whole objective from

here to now, now until I die, is to kill and to hurt, to cause as much destruction

how[ ]ever, where ever, when ever. And oh as far as I‟m concerned I got no more

soul and I don‟t give [a] fuck no more. Nothing else matters to me.”

3. Battery of Correctional Officer Erik Mares

Between the two murders, on October 20, 1998, defendant attacked

Correctional Officer Eric Mares. As he was being handcuffed to be taken to the

shower, defendant pulled away and ran to the middle of his cell with the handcuff

attached to one wrist. Asked what was bothering him, defendant replied, “[T]his

conversation‟s over and I‟m taking this to the next level.” Several officers

assembled for a cell extraction. When they directed pepper spray into the cell,

defendant rushed at the door holding his mattress to block the spray. An officer

ran in, but slipped immediately because a slick substance covered the floor. A

second officer also slipped and fell. Officer Mares managed to enter and grab

defendant‟s legs. Defendant jabbed at Mares several times with a pointed object.

Another officer pried the weapon from defendant‟s grasp. A sharp piece of plastic

with a cloth handle was recovered from the cell floor. A second piece of

sharpened plastic was found on defendant‟s bed. Mares had puncture holes in his

protective vest and cuts on his shoulder.

Defendant admitted that he “[j]ust got bored,” and decided to provoke a cell

extraction. He had two weapons ready for the confrontation and put shampoo in

front of the cell door so entering officers would lose their footing. He admitted

stabbing Officer Mares in the shoulder and trying to get “a nice good solid straight

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thrust, if I was to get one in the neck or somethin[‟] like that, it would cause

serious injury. [¶] . . . I could get an eye or somethin[‟].”

4. Aggravated Assault by a Life Prisoner

Defendant was convicted of two counts of assault with a deadly weapon in

1994, and was serving a life sentence when the charged crimes occurred.

B. Penalty Phase

1. Prosecution

The prosecution introduced evidence of 10 incidents between 1997 and

2000 during which defendant possessed various weapons and assaulted

correctional officers or another inmate. Several of these incidents are discussed in

further detail, post, at pages 44-50. Evidence also established defendant was

convicted of receiving stolen property in 1986, possession of a weapon by an

inmate in 1986, and second degree burglary in 1990.

2. Defense

The youngest of nine children sired by four different fathers, defendant was

neglected and abused by his alcoholic mother. As an infant, he was often left

crying, soiled, and hungry after his mother passed out. His 11-year-old sister

frequently assumed his care. As defendant got older, his mother would tie his

hands and lock him in a dark closet for extended periods. She beat him often with

a broom or a belt. She sometimes made him kneel on grains of rice, which cut his

bare knees. The family had little to eat, but his mother punished him if he

accepted food from neighbors.

Defendant‟s cousin, Inocencio Ortega, recalled defendant‟s mother beating

him and locking him in the closet. Defendant sometimes hid at Ortega‟s house to

escape. Once defendant‟s older brothers gave him glue to sniff.

6

Defendant was removed from his mother‟s care at about seven years old.

When he was 11, he lived for over a year in a group home. Defendant had scars

on his wrists that resembled ligature marks. Slight of build, he was self-protective.

He exhibited low self-esteem and would destroy his things when he was upset or

frustrated. His fifth grade teacher described him as bright, funny, and trustworthy.

He responded well when treated with respect, but had a temper and lacked social

skills. He would frequently push and shove other children because he did not

know how to communicate. Told his behavior was inappropriate, he improved

and became popular with his classmates.

II. DISCUSSION

A. Guilt Phase Issues

1. Presence of Correctional Officers During Attorney-Client

Communications

After killing Kevin Mahoney, defendant vowed in an interview that he

would kill again. (See ante, at pp. 4-5.) Concerned for defense counsel‟s safety,

and with her express agreement, the trial court ordered two correctional officers to

be present during all attorney-client consultations. They were bound by the

attorney-client privilege. Defendant contends that the trial court exceeded its

jurisdiction by accepting the parties‟ stipulation and purporting to extend the

attorney-client privilege to the correctional officers, who were unnecessary to the

consultation. He criticizes the court for failing to consider alternative

arrangements, such as physical restraints, that would have accomplished the same

goal without jeopardizing confidentiality. He argues that the court-sanctioned

intrusion deprived him of his federal and state constitutional rights to counsel, to

present a defense, to be present during all proceedings, and to fundamental due

process. He contends that the error was structural and reversible without a

showing of prejudice. We reject his claims.

7

a. Proceedings Below

On August 6, 1999, the court held an in-chambers meeting with the

prosecutor and prospective Defense Counsel Donna Tarter. The prosecutor

observed that defendant had already killed two people and that he had reason to

believe defendant would kill again. Voicing concerns for Tarter‟s safety, the

prosecutor suggested that two correctional officers be present at all attorney-client

meetings and that they be bound by the attorney-client privilege as to anything

they might overhear. Tartar agreed, and the court made the order to the two

correctional officers present. Thereafter, Tartar met privately with defendant and

was appointed by the court to represent him. Initially, there was no discussion of

the court‟s order in open court in defendant‟s presence.

On December 22, 1999, while defendant was present in open court, the

prosecutor explained the security arrangements: “any communications that are

overheard between Ms. Tarter and Mr. Delgado during any of the court

proceeding[s] or when she is visiting him are to be encompassed within the

attorney-client privilege. Given the nature of this case, we‟ve personally given

that privilege to officers Masters and [Klose] so that they may be present during

all communications just for the safety of all parties.” Defense counsel stated her

agreement, and the trial court expressly admonished the officers “that you‟re each

ordered not to disclose any information you might overhear in any of those

conversations to anyone, including family members, coworkers, anyone.” Both

officers affirmed their understanding. Defendant voiced no objection.

During trial, three correctional officers were stationed near defendant, one

on either side and one directly behind. The record is not entirely clear if defendant

and defense counsel sat next to each other or if a correctional officer sat between

them. Defendant‟s hands were unrestrained so that he could write notes to

counsel. Defense counsel expressly agreed to these security arrangements.

8

From the time he was first arraigned, defendant appeared personally in

court approximately 23 times during pretrial and trial proceedings. He never

complained to the court about the presence of officers at confidential attorney-

client meetings. On April 14 and May 2, 2000, before trial began, the court

inquired of defendant personally if there was any reason the trial could not go

forward. He stated there was none. Defense counsel likewise answered ready for

trial. Periodically thereafter, the court inquired of defense counsel if she had any

objections or concerns. She, too, voiced no concern about the presence of officers

at attorney-client meetings or in the courtroom.

Here, defendant advances both statutory and constitutional challenges to the

court‟s order.

b. Attorney-Client Privilege and the Need for the Ordered Security

Measures

Citing Evidence Code section 952, defendant argues that the correctional

officers‟ presence destroyed the confidentiality of his attorney-client

communications because it was not reasonably necessary to further the purpose of

the legal consultation. (See Evid. Code, § 952;9 Zurich American Ins. Co. v.

Superior Court (2007) 155 Cal.App.4th 1485, 1503 (Zurich).) He reasons that

there was no showing of a security risk to defense counsel, and that other

measures, such as physical restraints, would have been adequate. He contends that

9 Evidence Code section 952 defines “ „confidential communication between

client and lawyer‟ ” as “information transmitted between a client and his or her

lawyer in the course of that relationship and in confidence by a means which, so

far as the client is aware, discloses the information to no third persons other than

those who are present to further the interest of the client in the consultation or

those to whom disclosure is reasonably necessary for the transmission of the

information or the accomplishment of the purpose for which the lawyer is

consulted, and includes a legal opinion formed and the advice given by the lawyer

in the course of that relationship.”

9

the parties were not authorized to extend the attorney-client privilege by

stipulation, and that the trial court acted in excess of its jurisdiction in accepting

the stipulation.

These claims have been forfeited. Defense counsel expressly agreed to the

officers‟ presence at attorney-client meetings to ensure her safety, and both parties

stipulated that the officers would be bound by the privilege. In the trial court,

neither party challenged the necessity for the measures or the legality of the

stipulation. Under these circumstances, defendant may not be heard to argue for

the first time on appeal that the arrangement was unnecessary and that the

privilege was destroyed. (Dowling v. Farmers Ins. Exchange (2012) 208

Cal.App.4th 685, 696-697; see generally Ward v. Taggart (1959) 51 Cal.2d 736,

742.) Nor may he argue that the trial court abused its discretion in failing to

devise a different solution. (People v. Bryant, Smith and Wheeler (2014) 60

Cal.4th 335, 389 (Bryant); People v. Montes (2014) 58 Cal.4th 809, 843; People v.

Duran (1976) 16 Cal.3d 282, 289). Similarly, defendant‟s jurisdiction argument is

undermined by the absence of a challenge below. (See People v. Mower (2002) 28

Cal.4th 457, 474, fn. 6 [acts in excess of jurisdiction are subject to waiver and

forfeiture].)

Defendant argues that he should not be bound by his counsel‟s stipulation,

which occurred before she was formally appointed. The timing here was

immaterial. The stipulation was made to facilitate counsel‟s appointment.

Counsel was appointed shortly thereafter, whereupon the stipulation became

effective for all subsequent attorney-client meetings. There was one brief

consultation in the interim. However, even if that meeting was outside the

stipulation for purposes of our forfeiture analysis, defendant fails to identify

anything of consequence that occurred to support his claims of error.

10

In addition, nothing prevented counsel from revisiting the terms of the

stipulation after speaking with defendant.10 Defendant counters the record does

not reveal whether or not counsel told him about the arrangement extending the

attorney-client privilege to the attending officers. We will not presume counsel‟s

omission. It is defendant‟s burden to show that counsel performed deficiently, by

developing the record on habeas corpus if necessary. (People v. Pope (1979) 23

Cal.3d 412, 425 (Pope), overruled on another ground in People v. Berryman

(1993) 6 Cal.4th 1048, 1081, fn. 10; see generally People v. Fosselman (1983) 33

Cal.3d 572, 581-582.)

Defendant further argues that counsel could not be counted on to object on

his behalf to an order made solely for counsel‟s benefit and contrary to his rights

and interests. His only authority involves a failure to object to an award of

attorney‟s fees, a circumstance that is readily distinguishable. (Cf. People v. Viray

(2005) 134 Cal.App.4th 1186, 1214.) Security risks occur with some frequency,

and do not invariably create a conflict of interest for counsel. Defendant points to

no evidence in the record that counsel labored under an actual conflict that

adversely affected her performance. (Cuyler v. Sullivan (1980) 446 U.S. 335,

348.) On the contrary, counsel agreed to the arrangement only after receiving

express assurances from the prosecution that it would not compromise the

attorney-client privilege. Nor does defendant demonstrate that the potential risk to

counsel‟s safety caused her to perform deficiently. (Strickland v. Washington

(1984) 466 U.S. 668, 687-688.)

10 We address separately, post, defendant‟s claim that he was deprived of his

statutory and constitutional rights to be present during the hearing where the court

ordered the correctional officers to provide security for defense counsel.

11

Further, it is not accurate to say the arrangement was made solely for

counsel‟s benefit. Defendant was entitled to counsel. His own statements and

admitted conduct made securing willing and capable counsel uniquely difficult.

The court‟s action was taken to ensure that defendant‟s right to counsel was

honored.

Even were we to overlook defendant‟s forfeiture and reach the merits, there

is no basis for relief. Evidence Code section 954 affords the client “a privilege to

refuse to disclose, and to prevent another from disclosing, a confidential

communication between the client and lawyer.” (Zurich, supra, 155 Cal.App.4th

at p. 1494.) Absent actual disclosure, or a demand for disclosure, the statute is

simply not implicated. (People v. Alexander (2010) 49 Cal.4th 846, 887

(Alexander).) In Alexander, we rejected the defendant‟s claim that a police

detective‟s interception and recording of a three-way call between the defendant,

his mother, and a defense investigator violated the statutory attorney-client

privilege. We reasoned: “Defendant has made no showing that any witness

disclosed any information from the call during the proceedings in violation of

Evidence Code section 954. Indeed, substantial evidence supports the trial court‟s

findings that the call‟s contents were not disclosed to the prosecutors.” (Id. at p.

887, fn. omitted.) Likewise here, the prosecutor did not seek to discover or offer

evidence of confidential communications. Additionally, there is no evidence that

the officers ignored the admonition by disclosing confidential communications to

anyone. In short, nothing before us indicates the officers‟ presence violated

defendant‟s rights.

We likewise reject defendant‟s challenge to the necessity of the security

arrangements, and the availability of less intrusive alternatives. “In general, the

„court has broad power to maintain courtroom security and orderly proceedings‟

[citation], and its decisions on these matters are reviewed for abuse of discretion.”

12

(People v. Lomax (2010) 49 Cal.4th 530, 558 (Lomax).) Given that defendant had

killed two people with his bare hands and had vowed to kill again, the trial court

did not abuse its discretion by adopting the parties‟ proposed solution to a clear

security problem.

We emphasize, however, that we do not suggest such measures are

necessary or appropriate in every circumstance. Ordering law enforcement

officers to be present at attorney-client meetings is an unorthodox solution with

obvious potential pitfalls. We hold only that, under these extreme circumstances,

the court did not abuse its discretion. Trial courts are well advised to fashion

security measures tailored to minimize the risk of intrusion on the defendant‟s

constitutional rights. With these observations in mind, we turn to defendant‟s

Sixth Amendment claim.

c. Deprivation of the Right to Counsel

Defendant argues that the right to confidential communications is “absolute

and essential to both the federal and state right to representation by counsel.”

(Citing In re Rider (1920) 50 Cal.App. 797, 799.) According to defendant, the

officers involved here were members of the prosecution team, and their presence

during attorney-client consultations destroyed confidentiality despite the parties‟

stipulation to the contrary. Defendant claims that the officers‟ presence had a

chilling effect on his communications with counsel and his defense preparation,

resulting in a “wholesale evisceration” of his right to counsel under both the Sixth

Amendment and article I, section 15 of the California Constitution. These

circumstances, he argues, were “tantamount to a failure to appoint counsel at all,”

and amounted to structural error. The appellate record fails to support defendant‟s

claims of error.

13

As explained in Alexander, supra, 49 Cal.4th 846, the federal Constitution

does not protect confidential communications between a defendant and his

attorney for their own sake. “No federal constitutional provision . . . establishes an

attorney-client communication privilege. Rather, the Sixth Amendment

guarantees a criminal defendant the right to „assistance of counsel for his defense.‟

(U.S. Const., 6th Amend.) Confidential communication between a defendant and

his lawyer is itself not a separate „right‟ that the federal Constitution guarantees,

but rather an aspect of ensuring fulfillment of the right to assistance of counsel.”

(Alexander, supra, 49 Cal.4th at pp. 887-888.)

Alexander held that interception of attorney-client communications does

not constitute a complete denial of the right to counsel. (Alexander, supra, 49

Cal.4th at p. 888.) Citing Weatherford v. Bursey (1977) 429 U.S. 545

(Weatherford), we explained that the Supreme Court had “rejected a per se rule

that „ “whenever the prosecution knowingly arranges or permits intrusion into the

attorney-client relationship the right to counsel is sufficiently endangered to

require reversal and a new trial.” ‟ ” (Alexander, at p. 888, quoting Weatherford,

at p. 549.) The high court made clear that “unless the record supports „at least a

realistic possibility of injury to [the defendant] or benefit to the State, there can be

no Sixth Amendment violation.‟ ” (Alexander, at p. 888, quoting Weatherford, at

p. 558.)

Accordingly, we look to Weatherford, supra, 429 U.S. 545, to evaluate

defendant‟s Sixth Amendment claim. Weatherford was an undercover agent for a

state law enforcement agency. He vandalized a local office of the Selective

Service with Bursey and two others. To maintain his undercover status,

Weatherford was arrested and charged along with Bursey. Before trial,

Weatherford was invited to two meetings where Bursey and his attorney discussed

defense tactics. Weatherford did not share the details of these meetings with

14

anyone. However, he did testify at Bursey‟s trial regarding his own undercover

activities and Bursey‟s act of vandalism. After Bursey was convicted, he filed a

civil rights action against Weatherford and his supervisor under 42 United States

Code section 1983, alleging that he had been deprived of his Sixth Amendment

right to the assistance of counsel. (Weatherford, at pp. 547-549.)

In evaluating the Sixth Amendment claim, the high court rejected the

notion that a constitutional violation can be made out “whenever conversations

with counsel are overheard” by a government agent. (Weatherford, supra, 429

U.S. at p. 551.) Rather, the court held that “the constitutionality of the conviction

depends on whether the overheard conversations have produced, directly or

indirectly, any of the evidence offered at trial.” (Id. at p. 552.) The court

identified several relevant factors, including whether: (1) a witness testifies at trial

about the confidential conversations; (2) any of the state‟s evidence originated in

these conversations; (3) the conversations were communicated to the prosecutor;

or (4) the conversations were used in any other way to the defendant‟s substantial

detriment. (Id. at p. 554.) The court noted that “[n]one of these elements is

present here . . . . Weatherford‟s testimony for the prosecution about the events of

March and April 1970 revealed nothing said or done at the meetings . . . that he

attended. None of the State‟s evidence was obtained as a consequence of

Weatherford‟s participation in those meetings.” (Id. at p. 555, fn. omitted.)

Further, the district court expressly found that Weatherford had not communicated

anything about the meeting to either his superiors or the prosecution. (Id. at p.

556.)

Applying the Weatherford factors to defendant‟s claim, he fails to establish

a constitutional violation. The officers who provided security were expressly

15

admonished not to reveal the content of any overheard conversations to anyone.11

Again, there is no evidence they disregarded the court‟s admonishment by

disclosing confidential communications. Nor did the officers testify regarding any

attorney-client conversation. Finally, defendant fails to identify any evidence

allegedly developed as a result of the correctional officers‟ presence. It is

defendant‟s obligation to make such a record. (People v. Ervine (2009) 47 Cal.4th

745, 770 (Ervine).)12

Citing Ervine, supra, 47 Cal.4th 745, defendant argues that a Sixth

Amendment violation can be predicated on a showing that confidential attorney-

client information was intercepted by any member of the prosecution team. He

argues that the officers who provided security at attorney-client meetings and in

court were part of the prosecution team because the California Department of

Corrections and Rehabilitation (CDCR) investigated the charged crimes and

11 During pretrial proceedings, the trial court admonished Officers Martinez

and Kaszap regarding the attorney-client privilege. On December 22, 1999, the

court admonished two additional officers, Masters and Klose. A third officer,

Sergeant Eric Griem, was in charge of courtroom security during trial. Although

defendant complains that Griem was not separately admonished, the record

indicates that the supervising officers were aware of the stipulation. The same

three officers were used for courtroom security throughout the trial.

12 In Alexander we observed that no decision of the high court “has answered

the questions left unresolved in Weatherford—what showing of injury to the

defendant or benefit to the state is, in the affirmative, required to prove a Sixth

Amendment violation, and who bears the burden of persuasion.” (Alexander,

supra, 49 Cal.4th at p. 889, fn. 23; see also Ervine, supra, 47 Cal.4th at p. 766.)

We need not opine on that question here. Because defendant did not object below

or request a hearing on the effect of the asserted interference, the People had no

opportunity to litigate that point. Under these circumstances, we apply the general

rule that defendant, the party challenging the judgment, has the burden of

providing an adequate appellate record. (Ballard v. Uribe (1986) 41 Cal.3d 564,

574-575; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th

1412, 1416.)

16

conducted the cell extractions introduced as circumstances in aggravation.

Relying on cases that interpret the scope of the prosecution team for purposes of

statutory discovery and the disclosures mandated by Brady v. Maryland (1963)

373 U.S. 83 (Brady), defendant argues that “[b]ecause in this case all attorney-

client conferences were conducted in the close proximity of [CDCR] employees,

there can be no dispute that confidential information was actually communicated

to the prosecution team.” (Citing In re Steele (2004) 32 Cal.4th 682, 696-697;

People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1317 [concluding

that CDCR has a “hybrid status” when it both provides administrative and security

functions in housing felons and investigates crimes committed in the prison].)

First, we note that defendant‟s bald assertion that confidential

communications were actually revealed is purely speculative. Further, defendant

reads too much into Ervine. There, Sacramento County jail personnel entered the

defendant‟s cell while he was in court and read his confidential defense

documents. None of that information was communicated to the chief assistant

Attorney General who prosecuted the case, or to the Lassen County District

Attorney. (Ervine, supra, 47 Cal.4th at p. 763.) Applying Weatherford, supra,

429 U.S. 545, we concluded the lack of evidence that the sheriff‟s department

“communicated any confidential information to anyone” defeated defendant‟s

Sixth Amendment claim. (Ervine, at p. 765.) To support this conclusion, we drew

an analogy to the scope of liability under Brady (see Ervine, at p. 768), and

observed that “[t]he agency responsible for intruding on defendant‟s relationship

with his attorney (the Sacramento County Sheriff‟s Department) was completely

unrelated to the agency actually prosecuting defendant (the Lassen County District

Attorney‟s Office)” (id. at p. 767). Nonetheless, because the relationship between

the agencies in Ervine was tangential, we were not called upon to consider what

degree of association would be sufficient to establish a Sixth Amendment violation

17

based on receipt of confidential attorney-client information by a government actor

other than the prosecutor.

Weatherford, however, did consider that question, and rejected an argument

similar to the one defendant advances here. Unlike the officers in this case,

Weatherford was involved in the investigation and called as a prosecution witness.

Bursey argued that Weatherford was therefore “a member of the prosecuting team

whose knowledge of Bursey‟s trial plans was alone enough to violate Bursey‟s

constitutional right to counsel and to vitiate Bursey‟s conviction. [Citation.]”

(Weatherford, supra, 429 U.S. at p. 556.) The court disagreed: “Though

imaginative, this reasoning is not a realistic assessment of the relationship of

Weatherford to the prosecuting staff or of the potential for detriment to Bursey or

benefit to the State that Weatherford‟s uncommunicated knowledge might pose.”

(Ibid.) Rather, the court looked to whether the receipt of confidential information

by persons other than the prosecutor resulted in testimony or other evidence

against the defendant. (Id. at p. 554.) As noted, defendant made no such showing

here.

Defendant asserts, “[b]ecause in this case all attorney-client conferences

were conducted in the close proximity of [CDCR] employees,” this fact

“establishes a very real possibility” of injury to defendant‟s case. People v. Rich

(1988) 45 Cal.3d 1036, rejected the defendant‟s claim that the presence of an

officer during psychiatric interviews violated his right to counsel, observing that

the officer “was instructed not to repeat anything he heard during the interview”

and that the officer assured defense counsel that he would not do so. (Id. at p.

1099, fn. 16.) These officers were similarly instructed, and, as noted, defendant

points to nothing in the record to show they violated the court‟s directive.

Defendant contends that the officers‟ presence had a “chilling effect” on his

communications with counsel and undermined his ability to assist in his defense.

18

He reasons that “nothing is more likely to impair the effectiveness of an attorney

than the inability to communicate freely and privately with his client” and that “an

attorney who will not consult in private with her client cannot be said to satisfy the

requirements of the Sixth Amendment or the California Constitution.” Ervine

rejected a similar claim that, as an “ „inevitable consequence‟ ” of law

enforcement having reviewed his confidential legal materials, the defendant had

an “ „enduring fear‟ ” concerning his private communications with counsel, which

deprived him of counsel‟s effective assistance. (Ervine, supra, 47 Cal.4th at p.

769.) We held that “a defendant‟s inability to consult with counsel or to assist in

his defense must appear in the record.” (Ibid.) The defendant had “fail[ed] to

identify any instance in which his relationship with counsel was impaired” despite

having been offered the opportunity to submit additional evidence at the time the

trial court denied his motion to dismiss. (Ibid.) “Because his claim still is not

supported by any reference to the record, we must reject it.” (Ibid.)

So too here. Defendant observes that after he first met with defense

counsel on August 6, 1999 in the presence of correctional officers, he told the

court that he had “nothing to discuss” with counsel and that he had “no intentions

to discuss anything with her.” He invites us to infer from these comments that he

was reluctant to speak in the presence of officers. The remark is taken out of

context. Immediately before defendant‟s statements, the court and counsel had

been discussing dates for the preliminary hearing. Asked if he was willing to

waive time, defendant responded that he wanted a preliminary hearing within 10

days so that it would be “done and over with.” The court noted that 10 days would

not give defense counsel time to prepare, and asked defendant, “You don‟t want

[defense counsel] to have any time?” It was at this point that defendant responded

he had nothing to discuss with counsel. Taken in totality, defendant‟s comments

19

reveal an expression of his indifference to the criminal process, rather than his

reluctance to discuss his case in the presence of correctional officers.

In any event, any asserted reluctance to assist counsel was short-lived. On

November 20, 1999, after the preliminary hearing, defendant was arraigned.

Asked if he would like to have counsel appointed, defendant responded

affirmatively. He voiced no objection when the court appointed Ms. Tarter to

continue her representation. He also agreed to waive time to accommodate

defense counsel‟s requested trial dates. On December 16, 1999, defense counsel

stated on the record that she had been “talking [with Mr. Delgado] for about a half

an hour or so” and that she was requesting additional time to investigate the case.

On March 30, 2000, counsel conveyed defendant‟s request that he be allowed to

view the videotape evidence. Counsel indicated that she would be consulting with

defendant at the prison and that the prison litigation staff had been “very

cooperative.”

Defendant also asserts that, during court proceedings, “he could not

whisper to his attorney, nor pass her confidential notes, without also revealing his

communications to the correctional officers who were „circling around‟ him,

between [defendant] and attorney Tarter.” The record before us is not entirely

clear as to the officers‟ positions in court. (See ante, at p. 8.) Significantly, there

is no direct evidence that the officers‟ presence impeded defendant‟s ability to

whisper to counsel or pass her notes. On the contrary, the officer in charge of

courtroom security confirmed that defendant‟s hands would be unrestrained and he

would be given a pen so that he could communicate with his attorney in writing.

This circumstance does not resemble People v. Zammora (1944) 66 Cal.App.2d

166, wherein reversible error was found because the 22 defendants were seated at

some distance from counsel‟s table and were not allowed to approach or consult

20

with counsel either during sessions or as they left the courtroom. (Id. at pp. 226-

236.)

The fact that neither defense counsel nor defendant voiced any concern

about the officers‟ presence further undercuts his claim of a chilling effect.

Although defense counsel initially agreed to the arrangement, she was certainly

free to revisit the issue if it proved unworkable. She did not thereafter object or

otherwise alert the court that the arrangement negatively affected her ability to

communicate with defendant. Likewise, at no time did defendant raise a concern

with the court about the presence of the officers. Defendant counters that no

inference may be drawn from his silence because the record does not show that

counsel even told him about the arrangement. His argument is unpersuasive.

First, there is no evidence that counsel failed to so advise defendant that the

officers were bound by the privilege. It is defendant‟s burden to show that counsel

performed deficiently. (Pope, supra, 23 Cal.3d at p. 425.) Second, and

significantly, defendant was present in court on December 22, 1999 when the

court admonished the officers that they were bound by the privilege and expressly

ordered them not to disclose any overheard communications. Thereafter, on April

14 and again on May 2, 2000, the trial court asked defendant whether there was

any reason the trial could not proceed. Defendant responded that there was not.

Defendant‟s claimed inability to consult with counsel or assist in his defense is

unsupported by any evidence in the record. (Ervine, supra, 47 Cal.4th at p. 769.)

Accordingly, his Sixth Amendment claim fails. (Alexander, supra, 49 Cal.4th at

p. 889.)

Defendant fares no better with his claim that his right to counsel under

article I, section 15 of the California Constitution was violated. Defendant cites

Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber), which held that the

right to counsel “embodies the right to private consultation with counsel” and “is

21

violated when a state agent is present at confidential attorney-client conferences.”

(Id. at p. 752.) Barber is distinguishable. In that case, an undercover police

officer posed as a codefendant and attended attorney-client meetings. (Id. at pp.

745, 748-749.) During that time, he communicated regularly with his superior

officers and disclosed that “the defense was to become more „political.‟ ” (Id. at p.

749.) When petitioners learned of the breach in attorney-client confidences, they

moved to dismiss the charges. (Id. at p. 745, 749-750.) Petitioners‟ attorney

testified that his clients became “ „paranoi[d]‟ ” after learning that they had been

infiltrated by an informant. (Id. at p. 750.) The clients, who had once actively

participated in meetings with counsel, became reluctant to speak. They were

distrustful of each other and of defense counsel‟s assistant. The attorney opined

that his clients‟ ability to assist in preparing a defense had been “ „substantially

impaired.‟ ” (Ibid.) On that record, we held that the clients were deprived of their

state constitutional right to communicate privately with counsel, and that the

appropriate remedy was dismissal. (Id. at p. 756, 760.)

Defendant argues that the interference here was even more pervasive than

in Barber. Not so. In Barber, some of the content of attorney-client conversations

was actually relayed to other officers, and there was a demonstrated chilling effect

on attorney-client communications. (Barber, supra, 24 Cal.3d at p. 756.) Neither

of those circumstances is present here. The court in Alexander, on a record similar

to this case, questioned whether the defendant‟s state constitutional right to

counsel was violated “notwithstanding broad language used in the much more

egregious circumstances of Barber.” (Alexander, supra, 49 Cal.4th at p. 895;

accord, Ervine, supra, 47 Cal.4th at p. 770 [distinguishing Barber].) Barber‟s

holding that a violation of the right to counsel is shown “when a state agent is

present at confidential attorney-client conferences” (Barber, at p. 752), must be

understood in light of its facts, which differ markedly from those here.

22

Additionally, it is significant that “Barber involved an application for a

pretrial writ of prohibition, while the present case is an appeal from a judgment of

conviction and sentence.” (Alexander, supra, 49 Cal.4th at p. 896.) As such, this

case is subject to article VI, section 13 of the California Constitution, which

provides that “[n]o judgment shall be set aside . . . for any error as to any matter of

procedure, unless, after an examination of the entire cause, including the evidence,

the court shall be of the opinion that the error complained of has resulted in a

miscarriage of justice.” Defendant argues that the denial of confidential

communications rendered counsel‟s appointment “a mere formality without any

substance,” and therefore amounted to a miscarriage of justice regardless of the

evidence at trial. A similar claim failed in Alexander, where we observed that the

defendant “had counsel, and his attorney vigorously pursued his interests

throughout the trial.” (Alexander, at p. 896.) Likewise here, defense counsel

actively participated in all aspects of the trial, including jury selection, challenging

evidence admissibility, cross-examining witnesses, proposing jury instructions,

presenting defense witnesses at the penalty phase, and arguing vigorously against

a sentence of death. Because “ „defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption that any other [constitutional]

errors that may have occurred are subject to harmless-error analysis.‟ ” (Neder v.

United States (1999) 527 U.S. 1, 8, quoting Rose v. Clark (1986) 478 U.S. 570,

579; accord, Alexander, supra, 49 Cal.4th at pp. 896-897.)

For the same reasons that defendant has failed to prove his other

constitutional claims, he has also failed to demonstrate a reasonable probability

that, absent any alleged violation, the trial‟s outcome would have been more

favorable. “No evidence establishes the prosecution gained anything from [the

officers‟ presence] or that the defense was affected negatively in a way that could

have changed the trial‟s outcome.” (Alexander, supra, 49 Cal.4th at p. 899.)

23

Additionally, the evidence against defendant was compelling and included his own

statements and videotaped reenactments of the murders.13

d. Denial of the Right to Be Present

Defendant claims that his absence from the August 6 proceeding at which

the court ordered that officers be present at attorney-client meetings violated his

constitutional right to due process and his statutory rights (§§ 977, 1043). He

claims that his presence bore a reasonable and substantial relation to his

opportunity to fully defend against the charges and would have contributed to the

fairness of the proceeding. According to defendant, had he been present, he could

have objected to his counsel‟s “stipulat[ing] away” the right to private and

confidential consultation. He could have opposed the order on the grounds that it

was unnecessary and that it involved officers who were coworkers of several

witnesses and one of the victims in the case. Had he been present, he would have

had an opportunity to reject Tarter‟s appointment and proceed pro se.

Alternatively, had he accepted counsel‟s appointment, he would have been on

notice that the court had extended the attorney-client privilege to the officers, thus

ameliorating the chilling effect of their presence.

13 Defendant also summarily asserts that “[t]he elimination of confidential

communications with counsel violated [his] right to due process under the state

and federal constitutions . . . .” He provides no substantive analysis to support this

claim. In any event, for the same reasons we set out above, we conclude the

presence of officers during attorney-client meetings did not render his trial

fundamentally unfair. As in Alexander, supra, 49 Cal.4th 846, “there has been no

showing that (1) the purpose of [the officer‟s presence] was to discover defense

strategy, (2) information . . . was communicated to the prosecutors, or (3) law

enforcement agents utilized, or even could have utilized, information conveyed

[during the meetings].” (Id. at pp. 891-892.) Additionally, there has been no

showing that the officers‟ presence interfered with attorney-client communications

or trial preparation.

24

“ „ “Due process guarantees the right to be present at any „stage that is

critical to [the] outcome‟ and where the defendant‟s „presence would contribute to

the fairness of the procedure.‟ ” [Citation.] “ „The state constitutional right to be

present at trial is generally coextensive with the federal due process right.

[Citations.]‟ [Citation.] Neither the state nor the federal Constitution, nor the

statutory requirements of sections 977 and 1043, require the defendant‟s personal

appearance at proceedings where his presence bears no reasonable, substantial

relation to his opportunity to defend the charges against him. [Citations.]”

[Citation.] “Defendant has the burden of demonstrating that his absence

prejudiced his case or denied him a fair trial.” ‟ ” (People v. Gonzales (2012) 54

Cal.4th 1234, 1254 (Gonzales).)

We need not decide whether our state statutes or principles of due process

entitled defendant to be present during the in-chambers conference on August 6,

1999. Any error in excluding him was harmless. (See People v. Thompson (2016)

1 Cal.5th 1043, 1098-1099.) Defendant had ample opportunity to raise these

issues in subsequent proceedings during which he was present. He was obviously

aware of the officers‟ presence from the very first meeting with counsel. At

arraignment, he voiced no concern about the officers‟ presence; nor did he object

to counsel‟s appointment or ask to proceed pro se. Subsequently, defendant was

present when the judge admonished officers in open court that they were bound by

the attorney-client privilege. Again defendant raised no concerns about a chilling

effect on his communications with counsel; nor did he request to proceed pro se.

As noted, before trial the court twice asked defendant personally if there was any

reason that trial could not begin. He voiced none. Defendant had ample and

multiple opportunities to explore these security issues. His exclusion from the

25

initial in camera hearing was not prejudicial. (Cf. People v. Lewis and Oliver

(2006) 39 Cal.4th 970, 1041.)14

Defendant further contends that he was denied his Sixth Amendment right

“ „ “to be personally present at any proceeding in which his appearance is

necessary to prevent „interference with [his] opportunity for effective cross-

examination.‟ ” ‟ ” (Gonzales, supra, 54 Cal.4th at pp. 1253-1254.) He reasons

that “while [he] was physically present during trial, he was unable to assist counsel

with cross-examination without disclosing his comments to correctional officers at

the same time, and thus, it was no different than if he had been tried in absentia.”

This remarkable claim is without merit. Defendant was present during all trial

proceedings where evidence was taken. The record discloses that defendant‟s

hands were unrestrained and he was able to write notes to defense counsel.

Additionally, there is no evidence other than defendant‟s bare assertion that he

was unable to speak to defense counsel during trial due to the presence of

correctional officers. At no time did defendant advise the court of his asserted

concern. The record reveals no interference with defendant‟s opportunity to assist

counsel in conducting effective cross-examination.

14 Defendant urges us to revisit our precedent holding that “[e]rroneous

exclusion of the defendant is not structural error that is reversible per se, but trial

error that is reversible only if the defendant proves prejudice.” (People v. Perry

(2006) 38 Cal.4th 302, 312; accord, People v. Bradford (1997) 15 Cal.4th 1229,

1357.) He argues that the exclusion here cannot be assessed for harmlessness

because the error occurred before the presentation of evidence and was unrelated

to the strength of the evidence. This distinction is inapposite. There are many

reasons an error can be deemed harmless. As explained, the alleged error in

excluding defendant from the in camera proceeding was harmless because he had

other opportunities to raise this subject with the court, which could then have

directly considered his objection and taken any necessary action.

26

2. Multiple Convictions for First Degree Murder and Aggravated

Assault by a Life Prisoner (§ 4500)

Defendant contends that his convictions for first degree murder must be

reversed because they are necessarily included in the offense of aggravated assault

by a life prisoner, of which he was also convicted. He is incorrect.

“While section 654 prohibits multiple punishment, it is generally

permissible to convict a defendant of multiple charges arising from a single act or

course of conduct. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.)

However, a „judicially created exception to this rule prohibits multiple convictions

based on necessarily included offenses. [Citations.]‟ (People v. Montoya (2004)

33 Cal.4th 1031, 1034.)” (People v. Sanders (2012) 55 Cal.4th 731, 736.)

“In deciding whether multiple conviction is proper, a court should consider

only the statutory elements.” (People v. Reed (2006) 38 Cal.4th 1224, 1229.)

“Under the elements test, if the statutory elements of the greater offense include all

of the statutory elements of the lesser offense, the latter is necessarily included in

the former.” (Id. at p. 1227.) In other words, “ „[i]f a crime cannot be committed

without also necessarily committing a lesser offense, the latter is a lesser included

offense within the former.‟ ” (Ibid., quoting People v. Lopez (1998) 19 Cal.4th

282, 288.)

Section 4500 provides: “Every person while undergoing a life sentence,

who is sentenced to state prison within this state, and who, with malice

aforethought, commits an assault upon the person of another with a deadly weapon

or instrument, or by any means of force likely to produce great bodily injury is

punishable with death or life imprisonment without possibility of parole. The

penalty shall be determined pursuant to the provisions of Sections 190.3 and

190.4; however, in cases in which the person subjected to such assault does not

die within a year and a day after such assault as a proximate result thereof, the

27

punishment shall be imprisonment in the state prison for life without the

possibility of parole for nine years.”

Defendant reasons that section 4500 contains all of the elements of murder:

(1) an assault upon another person with a deadly weapon or instrument, or by

means of force likely to produce great bodily injury; (2) with malice aforethought;

(3) that causes the death of the victim within a year and a day; plus the additional

element (4) that the assault be committed by a prisoner in state prison while

undergoing a sentence of life imprisonment.

“ „The words malice aforethought in section 4500 have the same meaning

as in sections 187 [murder] and 188 [malice definition].‟ ” (People v. St. Martin

(1970) 1 Cal.3d 524, 537, quoting People v. Chacon (1968) 69 Cal.2d 765, 781.)

“Malice may be either express or implied. It is express when the defendant

manifests „a deliberate intention unlawfully to take away the life of a fellow

creature.‟ (§ 188.) It is implied . . . „when the killing results from an intentional

act, the natural consequences of which are dangerous to life, which act was

deliberately performed by a person who knows that his conduct endangers the life

of another and who acts with conscious disregard for life‟ [citation].” (People v.

Lasko (2000) 23 Cal.4th 101, 107.) In other words, express malice requires an

intent to kill. Implied malice does not.

Defendant‟s argument overlooks the fact that he was convicted of first

degree murder. Section 189 defines first degree murder as an unlawful killing

with malice aforethought that is willful, premeditated and deliberate. (§ 189;

People v. Chiu (2014) 59 Cal.4th 155, 166; see also id. at p. 163 [premeditation

and deliberation are elements of first degree murder, not a separate penalty

provision].) “Willful” means intentional; “premeditated” means thought over in

advance; “deliberate” means careful weighing of considerations in forming a

course of action. (See CALCRIM No. 521; People v. Koontz (2002) 27 Cal.4th

28

1041, 1080.) One who violates section 4500 does not necessarily harbor an

express intent to kill, nor does he necessarily act with premeditation and

deliberation, all of which are required for this type of first degree murder.

First degree murder also includes an unlawful killing with malice

aforethought that is perpetrated by certain specified means (such as a destructive

device, poison, lying in wait, torture, etc.), and an unlawful killing during the

commission or attempted commission of certain listed felonies. (§ 189; People v.

Chun (2009) 45 Cal.4th 1172, 1182; People v. Dillon (1983) 34 Cal.3d 441, 465-

472, 475-477.) One who violates section 4500 does not necessarily do so by any

of the means specified in section 189. Nor does a violation of section 4500

predicated on felony assault come within the list of qualifying felonies for first

degree felony murder. These alternative theories of first degree murder are not

implicated by the facts here, nor were they relied upon by the prosecution at trial.

We mention them, however, because the elements test turns not on the specific

facts of a case but on the elements set out in the statute.

Because it is possible to violate section 4500 without committing murder in

the first degree, the latter offense is not included in the former. Accordingly,

defendant was properly convicted of both offenses in the killings of Mendoza and

Mahoney.

3. Claims of Instructional Error

The trial court instructed the jury with CALJIC Nos. 2.01 (sufficiency of

circumstantial evidence), 2.21.2 (willfully false testimony), 2.22 (weighing

conflicting testimony), 2.27 (sufficiency of testimony of a single witness), 2.51

(motive) and 8.20 (willful, deliberate, and premeditated murder) at the guilt phase.

It repeated all of these instructions except CALJIC No. 8.20 at the penalty phase.

Defendant claims these standard instructions undermined the prosecution‟s burden

29

of proof beyond a reasonable doubt.15 He acknowledges that we previously have

rejected these claims (see, e.g., People v. Casares (2016) 62 Cal.4th 808, 831-832

(Casares)), but urges us to reconsider. He offers no persuasive reason to do so.16

“CALJIC No. 2.01 does not alter the burden of proof, nor does it create a

mandatory presumption of guilt.” (People v. Bonilla (2007) 41 Cal.4th 313, 338,

and cases cited.) The instruction “properly direct[s] the jury to accept an

interpretation of the evidence favorable to the prosecution and unfavorable to the

defense only if no other „reasonable‟ interpretation can be drawn. Particularly

when viewed in conjunction with other instructions correctly stating the

prosecution‟s burden to prove defendant‟s guilt beyond a reasonable doubt, [this]

circumstantial evidence instruction[] do[es] not reduce or weaken the

prosecution‟s constitutionally mandated burden of proof or amount to an improper

mandatory presumption of guilt.” (People v. Kipp (1998) 18 Cal.4th 349, 375.)

Defendant counters that “[a]n instruction that dilutes the beyond-a-

reasonable-doubt standard of proof on a specific point is not cured by a correct

general instruction on proof beyond a reasonable doubt.” He overlooks the fact

that CALJIC No. 2.01, as given, specifically referred to the reasonable doubt

standard, stating that “each fact which is essential to complete a set of

circumstances necessary to establish the defendant‟s guilt must be proved beyond

a reasonable doubt.” It also provided: “if the circumstantial evidence as to any

particular count permits two reasonable interpretations, one of which points to the

15 Although defendant failed to object to these instructions in the trial court,

he may challenge them on the ground that they affected his substantial rights.

(§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)

16 Defendant argues that the penalty phase instructions were defective for the

same reasons that the guilt phase instructions were defective. Our resolution of his

claims applies equally to both phases of the trial.

30

defendant‟s guilt and the other to his innocence, you must adopt that interpretation

that points to the defendant‟s innocence, and reject that interpretation that points to

his guilt.” There is no reasonable likelihood that the jury understood this

instruction to dilute the burden of proof or create a mandatory presumption of

guilt. (See People v. Smithey (1999) 20 Cal.4th 936, 963.)

CALJIC No. 2.21.2 does not reduce the prosecution‟s burden of proof.

(People v. Beardslee (1991) 53 Cal.3d 68, 95.) As given, it informed the jury that

“[y]ou may reject the whole testimony of a witness who willfully has testified

falsely as to a material point, unless, from all the evidence, you believe the

probability of truth favors his or her testimony in other particulars.” Defendant

argues that the instruction “lightened the prosecution‟s burden of proof by

allowing the jury to credit prosecution witnesses if their testimony had a „mere

probability of truth.‟ ” However, the instruction “says no such thing.” (People v.

Nakahara (2003) 30 Cal.4th 705, 714 (Nakahara).) It “ „does nothing more than

explain to a jury one of the tests they may use in resolving a credibility dispute.‟ ”

(Beardslee, at p. 95; quoting People v. Blassingill (1988) 199 Cal.App.3d 1413,

1419.) It does not speak to, nor does it conflict with, the ultimate burden of proof

applicable to the elements of the charge. (People v. Hillhouse (2002) 27 Cal.4th

469, 493; see People v. Centeno (2014) 60 Cal.4th 659, 672.) The instruction “ „is

unobjectionable when, as here, it is accompanied by the usual instructions on

reasonable doubt, the presumption of innocence, and the People‟s burden of

proof.‟ ” (People v. Kelly (2007) 42 Cal.4th 763, 792 (Kelly), quoting Nakahara,

at p. 715; accord, People v. Riel (2000) 22 Cal.4th 1153, 1200.)

Defendant criticizes precedent that looks to the reasonable doubt instruction

as a cure for an alleged ambiguity, particularly where the challenged instruction

itself contains no such cross-reference. We have long held that “the correctness of

jury instructions is to be determined from the entire charge of the court, not from a

31

consideration of parts of an instruction or from a particular instruction.” (People

v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another ground in People

v. Reyes (1998) 19 Cal.4th 743, 753.) Thus, “ „[t]he absence of an essential

element in one instruction may be supplied by another or cured in light of the

instructions as a whole.‟ ” (Burgener, at p. 539.) The jury here was given

CALJIC No. 1.01, which told them to “[c]onsider the instructions as a whole and

each in light of all the others.” Given the emphasis placed on proof beyond a

reasonable doubt throughout the charge (see, e.g., CALJIC Nos. 2.01, 2.02, 2.61,

2.90, 7.35, 8.71, 8.75, 8.80.1, 17.01, 17.10, 17.25), we reject defendant‟s

suggestion that “[i]t is just as likely the jurors concluded that the reasonable doubt

instruction was qualified or explained by the other instructions that contain their

own independent references to the evaluation or sufficiency of particular

evidence.”

CALJIC No. 2.22‟s direction to consider “the convincing force of the

evidence” in weighing the testimony of a number of witnesses, did not lessen the

prosecution‟s burden of proof where the instructions as a whole correctly

instructed the jury on that burden. (People v. Cleveland (2004) 32 Cal.4th 704,

751 (Cleveland).) Contrary to defendant‟s argument, there is no reason to

presume the jury would equate the word “convincing” with the lesser

preponderance of the evidence standard, which was nowhere mentioned in the

instructions given.

CALJIC No. 2.27, as given, told the jury that “[t]estimony by one witness

which you believe concerning any fact is sufficient for the proof of that fact.”

Contrary to defendant‟s argument, the instruction did not erroneously suggest that

defendant had the burden of proving facts, rather than simply raising a reasonable

doubt about the prosecution‟s case. The instruction “ „is unobjectionable when, as

here, it is accompanied by the usual instructions on reasonable doubt, the

32

presumption of innocence, and the People‟s burden of proof.‟ ” (Kelly, supra, 42

Cal.4th at p. 792.) Specifically, CALJIC No. 2.90, as given, told the jury that

defendant was “presumed to be innocent until the contrary is proved,” and that

“[t]his presumption places upon the People the burden of proving him guilty

beyond a reasonable doubt.” CALJIC No. 2.61, as given, told the jury that “[i]n

deciding whether or not to testify, the defendant may choose to rely on the state of

the evidence and upon the failure, if any, of the People to prove beyond a

reasonable doubt every essential element of the charge against him. No lack of

testimony on defendant‟s part will make up for a failure of proof by the People so

as to support a finding against him on any such essential element.” In light of the

instructions as a whole, CALJIC No. 2.27 is not susceptible to the interpretation

defendant suggests.

CALJIC No. 2.51, as given, told the jury that “[m]otive is not an element of

the crime charged and need not be shown. However, you may consider motive or

lack of motive as a circumstance in this case. Presence of motive may tend to

establish the defendant is guilty. Absence of motive may tend to show the

defendant is not guilty.” Defendant argues that the instruction shifted the burden

of proof to him to disprove motive in order to establish his innocence. “But the

instruction did not shift the burden of proof. It merely told the jury it may

consider the presence or absence of motive. [Citations.] The motive instruction

did not itself include instructions on the prosecution‟s burden of proof and the

reasonable doubt standard, but it also did not undercut other instructions that

correctly informed the jury that the prosecution had the burden of proving guilt

beyond a reasonable doubt.” (Cleveland, supra, 32 Cal.4th at p. 750.) Defendant

further argues that the instruction improperly allowed the jury to convict based on

the presence of motive alone. Because this argument merely goes to the clarity of

the instruction, it is forfeited by defendant‟s failure to object below. (Ibid.) In any

33

event, given the instructions on the elements of the charged crimes and the burden

of proof beyond a reasonable doubt, “[w]e find no reasonable likelihood the jury

would infer from the motive instruction that motive alone could establish guilt.

Moreover, given the strong evidence of guilt aside from motive, the jury certainly

did not base its verdicts solely on motive.” (Ibid.)

Finally, CALJIC No. 8.20 did not mislead the jury regarding the

prosecution‟s burden of proof at the guilt phase. The instruction told the jury that

deliberation and premeditation “must have been formed upon preexisting

reflection and not under a sudden heat of passion or other condition precluding the

idea of deliberation.” Defendant argues that “the word „precluding‟ could be

interpreted to require the defendant to absolutely eliminate the possibility of

premeditation, as opposed to raising a reasonable doubt.” However, when read in

conjunction with the instructions on reasonable doubt, the presumption of

innocence, and the People‟s burden of proof, there is no reasonable likelihood the

jury would have interpreted CALJIC No. 8.20 in this manner. (Nakahara, supra,

30 Cal.4th at p. 715.) “These instructions make it clear that a defendant is not

required to absolutely preclude the element of deliberation.” (Ibid.)

B. Penalty Phase Issues

1. Constitutionality of Lying-in-Wait Special Circumstance

“At the time of defendant‟s crime, the special circumstance of murder while

lying in wait (former § 190.2, subd. (a)(15)) required „an intentional murder

committed under circumstances which include (1) concealment of purpose, (2) a

substantial period of watching and waiting for an opportune time to act, and (3)

immediately thereafter, a surprise attack on an unsuspecting victim from a position

34

of advantage.‟ ” (Casares, supra, 62 Cal.4th at p. 827.)17 Defendant argues that

the lying-in-wait special circumstance, as interpreted by this court, fails to narrow

the class of persons eligible for the death penalty, and fails to provide a

“ „ “meaningful basis for distinguishing the few cases in which [the death penalty]

is imposed from the many cases in which it is not,” ‟ ” in violation of the Eighth

Amendment. (Godfrey v. Georgia (1980) 446 U.S. 420, 427.) He reasons that

there is no meaningful distinction between the lying-in-wait special circumstance

and first degree murder predicated on theories of premeditation and deliberation or

lying in wait. As a result, the special circumstance does not perform a narrowing

function and can apply to virtually any intentional first degree murder. For much

the same reasons, he argues, murders committed by lying in wait are no more

deserving of the extreme sanction of death than other premeditated killings.

As defendant acknowledges, we have repeatedly rejected these claims.

(People v. Streeter (2012) 54 Cal.4th 205, 252-253 (Streeter); People v. Carasi

(2008) 44 Cal.4th 1263, 1310; People v. Stevens (2007) 41 Cal.4th 182, 203-204;

Nakahara, supra, 30 Cal.4th at p. 721; People v. Gutierrez (2002) 28 Cal.4th

1083, 1148-1149; People v. Morales (1989) 48 Cal.3d 527, 557-558, disapproved

on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) These

holdings were recently reaffirmed in Casares, supra, 62 Cal.4th 808, which

explained, “we have differentiated between the lying-in-wait special circumstance

17 Defendant committed his crimes before the effective date of Proposition 18,

which changed the definition of the lying-in-wait special circumstance from a

killing “while” lying in wait to a killing “by means of” lying in wait. (§ 190.2,

subd. (a)(15) as amended by Stats. 1998, ch. 629, §§ 2, 3, pp. 4165-4166, enacted

by Prop. 18, as submitted to and approved by voters, Primary Elec. (Mar. 7, 2000)

eff. Mar. 8, 2000.) We recently addressed a challenge to the validity of the

amended special circumstance in People v. Johnson (2016) 62 Cal.4th 600, 634-

637.

35

and lying in wait as a theory of first degree murder on the bases that the special

circumstance requires an intent to kill (unlike first degree murder by lying in wait,

which requires only a wanton and reckless intent to inflict injury likely to cause

death) and requires that the murder be committed „while‟ lying in wait, that is,

within a continuous flow of events after the concealment and watching and

waiting end. [Citations.] Contrary to defendant‟s argument, the lying-in-wait

special circumstance is not coextensive with either theory of first degree murder; it

does not apply to all murders and is not constitutionally infirm.” (Id. at p. 849.)

Casares also rejected defendant‟s challenge to the validity of the special

circumstance on the ground that only three other states use lying in wait as a basis

for death eligibility. We observed, apart from noting “the rarity, among capital

punishment jurisdictions, of lying in wait as a death-eligibility factor, defendant

provides no historical information regarding any change, to or away from, the use

of lying in wait for this purpose.” (Casares, supra, 62 Cal.4th at p. 851.) We

observed that the high court had not held, “whether by discerning a national

consensus on the issue or through some other mode of analysis, that a form of

murder as defined by a state, when committed by one with a sufficient degree of

participation and without a characteristic deemed to limit culpability as a matter of

law was, per se, insufficiently aggravated to permit imposition of the death penalty

under the Eighth Amendment.” (Id. at p. 852.) Finally, we emphasized that

“ „[m]urder committed by lying in wait has been “anciently regarded . . . as a

particularly heinous and repugnant crime.” ‟ ” (Id. at p. 853, quoting People v.

Edelbacher (1989) 47 Cal.3d 983, 1023.) For these same reasons, we reject

defendant‟s contentions here.

36

2. Constitutionality of Death Eligibility Provision for Aggravated

Assault by a Life Prisoner (§ 4500)

Defendant contends that section 4500 violates the Eighth Amendment

because it qualifies persons for death based on an arbitrary criterion that fails to

promote the goals of retribution and deterrence. He argues that this eligibility

provision does not “adequately differentiate . . . in an objective, evenhanded, and

substantially rational way” (Zant v. Stephens (1983) 462 U.S. 862, 879), murder

defendants for whom the jury may consider a death sentence from those for whom

it may not. According to defendant, it is irrational to qualify an inmate for death

based on “the type of sentence an inmate is serving, rather than the offense

underlying that sentence.” He argues that others serving determinate term

sentences may have committed more heinous crimes than the crimes that qualified

defendant for a 25-years-to-life term under the Three Strikes law, but that fact is

not accounted for in section 4500‟s eligibility criteria. He also argues that the

death penalty is not a deterrent, and that lesser sanctions such as revoking parole

eligibility suffice.

We recently considered and rejected similar claims in People v. Landry

(2016) 2 Cal.5th 52 (Landry). For the reasons stated there, we reject defendant‟s

constitutional challenge to section 4500.

“To pass constitutional muster, a capital sentencing scheme must

„genuinely narrow the class of persons eligible for the death penalty and must

reasonably justify the imposition of a more severe sentence on the defendant

compared to others found guilty of murder.‟ ” (Lowenfield v. Phelps (1988) 484

U.S. 231, 244.)

As to the first requirement, Landry noted that “the class of individuals

potentially subject to the death penalty under section 4500 is quite circumscribed:

persons serving a life sentence who, with malice aforethought, assault another

37

with a deadly weapon or instrument, or by any means of force likely to produce

great bodily injury, resulting in the death of the victim within a year and a day.”

(Landry, supra, 2 Cal.5th at p. 107.) “The statute easily satisfies the requirement

that an eligibility factor „apply only to a subclass of defendants convicted of

[homicide].‟ (Tuilaepa v. California [(1994)] 512 U.S. [967,] 972.)” (Ibid.)

Regarding the second requirement, Landry explained that “the Legislature

has determined that death eligibility for life prisoners who commit an aggravated

assault that leads to the victim‟s death is required to „protect[] [their fellow]

prisoners . . . against the assaults of the vicious, and also to protect the officers

who are required to mingle with the inmates, unarmed.‟ ([People v.] McNabb

[(1935)] 3 Cal.2d [441,] 458; accord, [People v. Superior Court (Bell) (2002)] 99

Cal.App.4th [1334,] 1341.) By imposing more severe penalties on those serving

life sentences, „the Legislature was attempting to deter severely violent crime by

those who might otherwise think themselves immune from punishment because

they were already lifetime guests of the state penal system.‟ (In re Carmichael

(1982) 132 Cal.App.3d 542, 546.) Along with retribution, deterring attacks by life

prisoners and thereby promoting the safety of inmates and correction officers are

legitimate penal objectives. (See Kennedy v. Louisiana (2008) 554 U.S. 407, 420

(Kennedy) [„punishment is justified under one or more of three principal

rationales: rehabilitation, deterrence, and retribution‟].) These rationales of

institutional security, deterrence, and retribution provide a reasonable justification

for distinguishing this category of murder from others to which the death penalty

does not apply.” (Landry, supra, 2 Cal.5th at pp. 107-108.)

Defendant complains that inmates who are serving a life sentence “are not

necessarily more culpable than those serving a determinate sentence and are

therefore not necessarily more deserving of execution when they commit fatal

assaults while incarcerated.” Landry rejected a similar argument, noting that

38

“[s]ection 4500 is a death eligibility statute as opposed to a death selection

statute.” (Landry, supra, 2 Cal.5th at p. 106; see Tuilaepa v. California (1994)

512 U.S. 967, 971-972.) In other words, a defendant convicted of violating

section 4500 is eligible for the death penalty or, alternatively, life without the

possibility of parole. (Landry, at p. 106.) It is up to the jury to decide whether it

will select the death penalty as appropriate. “There is no requirement at the

eligibility stage that a narrowly circumscribed class of defendants for whom the

death penalty is reasonably justified be further distinguished according to the

particular circumstances that led to their eligibility. Rather, that is a question that

goes to the selection stage and its individualized determination requirement. Only

at that point does the Eighth Amendment require „a broad inquiry into all relevant

mitigating evidence to allow an individualized determination.‟ (Buchanan v.

Angelone [(1998)] 522 U.S. [269,] 276.)” (Id. at p. 108.) The reason a defendant

was a life prisoner at the time of the charged killing may be a relevant

consideration for the jury at the penalty phase. It is not germane, however, to the

justification for including such persons in the death-eligible class. (Ibid.)

Landry further rejected the defendant‟s reliance on Sumner v. Shuman

(1987) 483 U.S. 66, a case that struck down as unconstitutional a mandatory

capital sentencing procedure for prisoners who committed murder while serving a

sentence of life without the possibility of parole. As the Supreme Court noted,

under those circumstances, “[w]ithout consideration of the nature of the predicate

life-term offense and the circumstances surrounding the commission of that

offense, the label „life-term inmate‟ reveals little about the inmate‟s record or

character.” (Sumner, at p. 81.) Landry found Sumner‟s holding inapposite to

section 4500, which does not impose a mandatory death sentence. “The [Sumner]

court did not, however, question the legitimacy of deterrence and retribution as

rationales. In short, the statute in Sumner differs from section 4500 in crucial

39

respects, and defendant‟s reliance on Sumner is misplaced.” (Landry, supra, 2

Cal.5th at p. 111.)

Defendant argues that there are ways other than a death sentence to deter

murder in prison, and that statistical evidence suggests capital punishment does

not actually deter in-prison homicide. His arguments are misplaced. “The weight

and validity of such studies involve policy questions within the Legislature‟s

purview. So, too, do defendant‟s arguments regarding retributive steps short of

death that might be taken against prisoners who kill. These studies do not

establish that imposing death eligibility on life prisoners who commit fatal

aggravated assaults is constitutionally impermissible.” (Landry, supra, 2 Cal.5th

at p. 111.)

Finally, defendant urges that an interjurisdictional comparison demonstrates

a lack of societal consensus that the death penalty is warranted for murder by a life

prisoner. He argues that only three states, Alabama, Mississippi, and New

Hampshire, have a statute equivalent to section 4500. Landry characterized a

similar argument as “tendentious” because “the vast majority of jurisdictions with

the death penalty regard custody status as a significant factor in either death

penalty eligibility or death penalty selection, or for both purposes. Of the 31 states

and the federal government whose laws currently authorize imposition of the death

penalty, the laws of 29 states and the federal government use custody status as a

death-eligibility or a death-selection factor, or both. It appears that only Nebraska

and South Carolina do not explicitly include custodial status as a death-eligibility

or selection factor.” (Landry, supra, 2 Cal.5th at p. 113.) We concluded:

“Defendant does not cite, nor has our research found, a single judicial decision

from any death penalty jurisdiction that has held that the use of custodial status as

either an eligibility or a selection factor for the death penalty violates the Eighth

Amendment. Nor has defendant shown that any jurisdiction that reenacted the

40

death penalty following Furman v. Georgia [(1972)] 408 U.S. 238, omitted

custodial status as either an eligibility or selection factor for purposes of the death

penalty. Thus, defendant fails to demonstrate the existence of an historical

trajectory supporting a conclusion that the majority, or, indeed, any, of the death

penalty jurisdictions has abandoned custody status as a factor for imposing the

death penalty.” (Id. at p. 113.)

Defendant‟s constitutional challenge to section 4500‟s death eligibility

provision fails.

3. Admission of Other Crimes Evidence in Aggravation (§190.3,

factor (b))

The prosecution introduced evidence in aggravation of 10 unadjudicated

incidents during which defendant was extracted from his prison cell. Defendant

argues that, for seven of these incidents, the evidence was legally insufficient to

prove that he engaged in criminal activity involving the use or attempted use of

force or violence, or express or implied threats to use force or violence (hereafter

use, attempt, or threat of violence). (§ 190.3, factor (b) (factor (b)).) According to

defendant, admission of this evidence violated his state and federal constitutional

rights to due process, equal protection, a fair trial, trial by an impartial jury, and a

reliable and non-arbitrary penalty determination. We reject his claims.

a. Forfeiture

Defendant failed to object at trial to admission of other crimes evidence on

the ground that it did not meet factor (b)‟s criteria. He has thus forfeited his

appellate claim. (People v. Livingston (2012) 53 Cal.4th 1145, 1175 (Livingston);

People v. Lewis (2008) 43 Cal.4th 415, 529 (Lewis), disapproved on another

ground in People v. Black (2014) 58 Cal.4th 912, 919; People v. Montiel (1993) 5

Cal.4th 877, 928, fn. 23, disapproved on another ground in People v. Sanchez

(2016) 63 Cal.4th 665, 686, fn. 13; Evid. Code, § 353.) Defendant urges us to

41

revisit this precedent because, he claims, a sufficiency of the evidence challenge is

preserved by contesting the evidence at trial. (See, e.g., People v. McCullough

(2013) 56 Cal.4th 589, 596.) The rule he cites applies to sufficiency of the

evidence challenges to convictions. We have found that precedent inapplicable to

evidence admitted in aggravation. As we explained in Montiel, “Even if defendant

need do nothing at trial to preserve an appellate claim that evidence supporting his

conviction is legally insufficient, a different rule is appropriate for evidence

presented at the penalty phase of a capital trial. There the ultimate issue is the

appropriate punishment for the capital crime, and evidence on that issue may

include one or more other discrete criminal incidents. (§ 190.3, factors (b), (c).) If

the accused thinks evidence on any such discrete crime is too insubstantial for jury

consideration, he should be obliged in general terms to object, or to move to

exclude or strike the evidence, on that ground.” (Montiel, at p. 928, fn. 23, citing

Evid. Code, § 353, subd. (a).) In other words, because the penalty decision is

normative and the prosecution need not prove that any given aggravating

circumstance exists in order to obtain a death judgment (People v. Anderson

(2001) 25 Cal.4th 543, 589 (Anderson)), defendant may not challenge the verdict

on the ground that the prosecutor failed to prove each of the elements of an

uncharged offense beyond a reasonable doubt. His claim of error lies in the

erroneous admission of such evidence; that claim must be preserved by a timely

objection in the trial court.

Livingston, supra, 53 Cal.4th 1145, recently affirmed this principle. There

the defendant argued that his claim should not be deemed to be forfeit because “he

is not challenging the admission of the evidence but its sufficiency, a challenge a

defendant may make on appeal from a conviction without an objection. But, as we

explained in Montiel, here the evidence was admitted at the penalty phase of a

capital trial as aggravating evidence, not to support a conviction for that crime.”

42

(Id. at p. 1175.) Livingston held that the defendant had “forfeited the claim the

evidence should not have been admitted on the ground that it was insufficient.

Defendant could, and did, argue to the jury that the evidence was insufficient.

But, as People v. Montiel, supra, 5 Cal.4th 877, explains, he cannot argue on

appeal the evidence should not even have been admitted without objecting on this

ground at trial.” (Ibid.)

Defendant further argues that his challenge to the admission of the cell

extractions that occurred on March 8, 1997 at High Desert State Prison, and on

April 18, 2000 at Corcoran State Prison should not be deemed to be forfeit

inasmuch as the court examined the admissibility of those two incidents on its own

motion. He reasons that any further objection by counsel would have been futile

because the trial court had already addressed the issue and there was no reason to

think that a specific objection would have resulted in a different ruling. He cites

People v. Hill (1998) 17 Cal.4th 800, but that case is distinguishable. In Hill,

defense counsel was “subjected to a constant barrage of . . . unethical conduct” by

the prosecutor that the trial court failed to control. (Id. at p. 821.) The atmosphere

was “so poisonous,” and reflected so unfavorably on defense counsel in front of

the jury, that counsel‟s failure to object was excused under the “unusual

circumstances” of that case. (Ibid.) No similar circumstances are present here.

Defendant points to no instance where the trial court precluded his counsel‟s

objections. On the contrary, at one point when discussing the admissibility of the

aggravating evidence, the court expressly invited defense counsel‟s comments.

Additionally, defendant‟s arguments on appeal deviate from the concerns

the trial court raised below. With respect to the April 18, 2000 incident, discussed

further below, the court challenged the prosecutor‟s representation that

defendant‟s possession of a pepper spray canister qualified a weapon under section

4502. It was satisfied, however, that a battery occurred when defendant snatched

43

the pepper spray from the guard, and made contact with his hand. By contrast, on

appeal, defendant argues that simple assault and misdemeanor battery are

categorically excluded as acts of violence under section 190.3, factor (b).

Regarding the March 8, 1997 incident, also discussed below, the trial court

initially wondered whether the defendant‟s actions amounted to an assault. It was

later satisfied by the officer‟s explanation that defendant had rushed at the guards

while holding a mattress. On appeal, defendant argues that he charged out of the

cell because the officers ordered him to come out, and that he used the mattress as

a shield to defend himself from rubber bullets, not as a weapon. Defendant offers

no explanation why the trial court would have refused to consider these additional

points in ruling on the admissibility of the evidence. Accordingly, defense

counsel‟s failure to raise them constitutes a forfeiture.

b. The Evidence Was Properly Admitted

Although defendant‟s challenge was forfeited, we briefly address his claims

on the merits. “ „ “[A] trial court‟s decision to admit „other crimes‟ evidence at

the penalty phase is reviewed for abuse of discretion, and no abuse of discretion

will be found where, in fact, the evidence in question was legally sufficient.” ‟ ”

(People v. Tully (2012) 54 Cal.4th 952, 1027 (Tully).) No abuse of discretion

appears.

i. Incidents on March 8, 1997 at High Desert State Prison

and on April 18, 2000 at Corcoran State Prison

Sergeant Dewall testified that on March 8, 1997, defendant and his cellmate

covered their cell window, which prevented security checks. Despite repeated

orders from staff, the inmates refused to remove the covering. Officers sprayed

three bursts of pepper spray into the cell at two-minute intervals. Each time the

inmates were given an opportunity to comply, but refused. The officers then fired

six projectiles into the cell, again giving the inmates an opportunity to comply

44

between each discharge. When the cell door was opened, defendant ran into the

officers as he tried to charge out holding a mattress. This evidence was sufficient

to establish a battery, which “is any willful and unlawful use of force or violence

upon the person of another.” (§ 242.)

Lieutenant James Gatto testified that on April 18, 2000, defendant was told

he would have to move to a different cell. He refused to be handcuffed, and said

that he was “going to go my way.” Lieutenant Gatto organized a cell extraction.

He sprayed pepper spray through the food port. Defendant reached through the

port and grabbed the canister, making contact with Gatto‟s hand. Defendant then

struck the window of his cell 14 times with the large metal canister, shattering the

glass. Defendant‟s contact with Gatto‟s hand as he snatched the canister

constituted a battery.

Defendant argues that these incidents should not have been admitted

because they “were simple assault and misdemeanor battery, not acts of violent

criminality.” He maintains that criminal activity should only be admissible under

section 190.3, factor (b) “when the circumstances of its commission causes,

threatens to cause, or is likely to cause serious bodily harm.” However, we have

consistently upheld admission of conduct amounting to a misdemeanor battery as

a circumstance in aggravation under factor (b). (See e.g., Tully, supra, 54 Cal.4th

at pp. 1027-1029 [defendant twice wrestled with other inmates and threw

punches]; People v. Thomas (2011) 51 Cal.4th 449, 504-505 (Thomas) [defendant

sucked on a woman‟s neck without permission, leaving a bruise]; People v.

Hamilton (2009) 45 Cal.4th 863, 934 [defendant spat on a deputy]; People v.

Burgener (2003) 29 Cal.4th 833, 868 (Burgener) [defendant threw water, urine,

scouring powder, bleach, and other substances at correctional officers].)

Additionally, the proper admission of evidence under factor (b) is not based

on the abstract, definitional nature of the offense, but on the conduct it involves.

45

(People v. Thomas (2011) 52 Cal.4th 336, 363.) Charging at correctional officers

and attempting to bowl them over while holding a mattress as a shield constitutes a

serious threat of force; so too does grabbing a large canister of pepper spray and

using it to shatter the security window of a prison cell.

As to the March 8, 1997 extraction, defendant argues “[t]here was no

evidence that [he] intended to make any physical contact with the guards. His

„charging‟ out of the cell was in response to repeated orders to exit the cell. The

mattress . . . held before him was used as a shield against the rubber bullets, not as

a weapon, and also prevented harm to the correctional officers by blocking contact

with [defendant‟s] hands and feet.” Defendant‟s claims of lawful compliance and

actions in self-defense are belied by the evidence. The officers gave defendant

ample opportunity to peaceably comply with their directives before resorting to

pepper spray and projectiles. Given defendant‟s classification as a high security

risk, the officers‟ use of nonlethal force to remove him from the cell was not

excessive. At the guilt phase the jury heard defendant‟s statement explaining his

motivation for provoking cell extractions: “things build up man, it just builds up

and I just get so angry I can‟t control it. I try to stay away from Cell Extractions

because that‟s the last thing I want to do is have problems with the [correctional

officers] when I‟m depending on them so much. But it get[s] to the point to where

you know what it doesn‟t matter man. . . . You know so it‟s like I feel that I have

to do something more than [arguing with or gassing18 the guards] you know I feel

that I have to draw blood[;] I have to do something[;] I have to try to hurt one of

them. You know in order to feel successful.” (Italics added.) “I do [cell

18 “Gassing” involves intentionally throwing human excrement or bodily

fluids, or a mixture containing them, that results in contact with a person‟s skin or

membranes. (§ 4501.1, subd. (b).)

46

extractions] because that‟s the only opportunity which I‟m gonna have physical

contact with [the guards,] you know what I mean. And uh aside from wrestling I

don‟t even, I‟m not trying to wrestle with them I‟m not trying to fist fight with

them you know. I‟m hoping that I could take out the mask, if I can get a hold of

razor blade you know what I mean, or whatever I could do. If I could bring harm

to them. And I want them to pay you know what I‟m saying because they take it

as a big old joke so I look like at it‟s like of any, any harm I could strike against

them I‟m up against it anyway. I can‟t beat whatever how many is coming in that

cell, I know that. But if I can cut one of them[,] stab one of them whatever,

however way I can, to me that‟s success.” (Italics added.) Given defendant‟s own

statements, his attempt to recharacterize these incidents as nonviolent attempts at

peaceful compliance fail.

Under these circumstances, the trial court did not err in admitting the

March 8 and April 18 incidents.

ii. Incidents on March 12 and 13, 1997 at High Desert

State Prison and on November 13, 1999, March 29,

2000, and April 15, 2000 at Corcoran State Prison

On March 12, 1997, defendant and his cellmate Romo obscured the

window of their cell and refused to remove the covering. When Sergeant Dewall

tried to look into the cell through the food port, he was struck by two small

cardboard milk containers containing a yellowish-brown substance that smelled of

feces and urine. The substance splashed onto his face and arm. Dewall ordered

the inmates to submit to handcuffing but they refused. Early the next morning,

officers performed a cell extraction. The officers sprayed pepper spray into the

cell three times. Each time they directed defendant and Romo to comply with

their orders, but the inmates refused. When officers fired six rubber projectiles

into the cells, defendant and Romo again refused to comply. The officers forcibly

47

entered the cells; both defendant and Romo attacked them. Officer Hornbeck fell

down, and defendant punched him repeatedly in the chest. On a scale of one to

10, Sergeant Dewall described defendant‟s aggressiveness towards the officers as

a nine.

The gassing incident and the subsequent fight with a correctional officer

were admissible under section 190.3, factor (b) as batteries. (Burgener, supra, 29

Cal.4th at p. 868.) Defendant argues that the gassing should not have been

admitted because Dewall did not see who threw the liquid. He fails to persuade.

There were only two men in the cell. Two containers were thrown at the same

time. Defendant refused to comply with commands both before and after the

gassing. He put up a violent struggle during the subsequent cell extraction. This

evidence supported a jury finding that he was responsible for the gassing as either

a direct perpetrator or as an aider and abettor. Defendant also asserts that the

officers used excessive force against him, and that he acted in self-defense when

punching Officer Hornbeck. The jury could have concluded otherwise, however,

given defendant‟s stated intent to provoke cell extractions, his refusal to comply

with the officer‟s commands, and his striking Hornbeck repeatedly in the chest as

Hornbeck lay on the floor. Both incidents were properly admitted.

On November 13, 1999, Officer Jamie Tovar escorted inmate Lopez to the

shower. As they passed by defendant‟s cell, Lopez kicked at something. Tovar

saw an object protruding from defendant‟s food port. He pushed Lopez out of the

way and kicked at the object, breaking it into two pieces. The object was a plastic

spoon handle sharpened to a point and wrapped in rolled paper. During a

subsequent search of defendant‟s cell, Officer Carlos Espinoza found a sharpened

toothbrush wrapped in a paper handle. Defendant occupied the cell by himself.

This evidence that defendant possessed a potentially dangerous weapon was

admissible under factor (b). (People v. Wallace (2008) 44 Cal.4th 1032, 1081-

48

1082 (Wallace); Lewis, supra, 43 Cal.4th at pp. 529-530.) Defendant argues that

no witness saw him in possession of the sharpened spoon. However, the fact that

defendant was alone in the cell when the item was seen protruding from the food

port was sufficient circumstantial evidence that he possessed the weapon.

On March 29, 2000, defendant was in a cell talking with Officer Kenneth

Pearson. Defendant reached out and placed a weapon on the ledge of the cell‟s

food port. Another officer, Francisco Mascarenas, saw the weapon and videotaped

the rest of the encounter. The tape shows the weapon sitting on the ledge. After

Pearson walks away, defendant picks up the weapon and hides it in the waistband

of his boxer shorts. Mascarenas ended the video, walked over to defendant, and

told him to surrender the weapon. Defendant threw it into a trash can. The

weapon was six inches long with a paper handle and a three-quarters‟ inch

sharpened metal point. This evidence that defendant possessed a potentially

dangerous weapon was admissible under factor (b). (Wallace, supra, 44 Cal.4th at

pp. 1081-1082; Lewis, supra, 43 Cal.4th at pp. 529-530.)

Defendant maintains that this incident was unreliable because the videotape

evidence contradicted Pearson‟s testimony that he saw defendant place what he

thought was a piece of paper in the food port, and then brush it onto the floor.

This minor discrepancy is of no moment. The videotape and Mascarenas‟s

testimony clearly show defendant in possession of the weapon. Defendant also

argues that the weapon posed no threat of force or violence because he made no

attempt to use it against Officer Pearson. It has been established for over two

decades that possession of a potentially dangerous weapon in custody “is unlawful

and involves an implied threat of violence even where there is no evidence

defendant used or displayed it in a provocative or threatening manner.” (People v.

Tuilaepa (1992) 4 Cal.4th 569, 589, disapproved on another ground in People v.

Harris (2008) 43 Cal.4th 1269, 1311; accord, Lewis, supra, 43 Cal.4th at pp. 529-

49

530.) Notably, defendant did not surrender the weapon to Officer Pearson, but

instead concealed it on his person after Pearson walked away. “The circumstances

of defendant‟s possession of the [weapon], particularly when viewed together with

his overall conduct while in custody . . . lead us to conclude that the trial court did

not abuse its discretion in admitting the evidence . . . .” (Wallace, supra, 44

Cal.4th at p. 1082.)

On April 15, 2000, Officer William Henderson saw defendant standing on

his bunk trying to cover the overhead light fixture with a blanket. Another

correctional officer, William Butts, removed defendant from the cell and searched

it. He found three metal weapons hidden under a blanket. One was a two-and-

one-quarters‟ inch long metal stock, sharpened to a point. A second was three

inches long, sharpened on one side, and fixed to a paper handle. A third was

approximately five inches long, sharpened to a point, with a handle fashioned from

cloth and surgical tape. Grooves had been cut into the Plexiglas light fixture and

defendant‟s bunk. Plastic shavings on the floor appeared to have come from the

light fixture. Defendant occupied the cell alone. Again, this evidence that

defendant possessed potentially dangerous weapons was admissible under factor

(b). (Lewis, supra, 43 Cal.4th at pp. 529-530.) Defendant argues there was no

evidence that he knew of the weapons or had control over them. No one saw him

make the weapons or place them under the blanket. However, the fact that

defendant was alone in the cell with weapons hidden under his blanket and fresh

shavings on the floor was sufficient circumstantial evidence of knowing

possession. (See ibid.)

Because each of the challenged incidents was admissible under section

190.3, factor (b), defendant‟s further arguments that the jury considered invalid

and irrelevant aggravating factors in violation of the Eighth and Fourteenth

Amendments fails. (Tully, supra, 54 Cal.4th at p. 1030.)

50

c. Sufficiency of Aggravating Evidence

Defendant further argues that, as to these seven unadjudicated aggravating

circumstances, the evidence presented was legally insufficient to prove them

beyond a reasonable doubt. He contends that the penalty phase determination was

impermissibly skewed by the jury‟s consideration of numerous aggravating

incidents that the prosecution ultimately failed to prove. No error appears.

“To admit evidence of unadjudicated crimes under section 190.3, factor (b)

necessarily entails a risk that the evidence may not be sufficient to convince all

jurors of the defendant‟s guilt. Yet we have described this risk as acceptable, in

view of the need to place before the jury all evidence properly bearing on its

capital sentencing decision, and in view of the rule that no juror may consider such

evidence unless first convinced of its truth beyond a reasonable doubt.

[Citation.][19] The court must give such an instruction sua sponte whenever it

admits evidence under factor (b). [Citations.]” (People v. Yeoman (2003) 31

Cal.4th 93, 132 (Yeoman).)

Here, the court instructed on the elements of weapon possession by a

prisoner (§ 4502, subd. (a)), assault (§ 240), and battery by a state prisoner on a

nonprisoner (§ 4501.5). It further instructed on the use of lawful force by a

correctional officer and on self-defense in response to excessive force. It directed

that no juror could consider an uncharged criminal act in aggravation unless first

convinced of its truth beyond a reasonable doubt.

Whether defendant‟s use of force was legally justified and the weight, if

any, to be given to these incidents for purposes of the individualized penalty

19 California law requires proof beyond a reasonable doubt of other crimes

evidence as “a foundational requirement—one not mandated by the Constitution.”

(Anderson, supra, 25 Cal.4th at p. 589.)

51

assessment were matters for the jury to decide in light of the given instructions.

(Tully, supra, 54 Cal.4th at p. 1030.) “[A]ny hypothetical juror whom the

prosecution‟s evidence might not have convinced beyond a reasonable doubt must

be presumed to have followed the court‟s instruction to disregard the evidence.”

(Yeoman, supra, 31 Cal.4th at pp. 132-133.) The jury‟s consideration of the

evidence did not violate defendant‟s federal constitutional rights under the Eighth

or Fourteenth Amendment.

4. Instruction with CALJIC No. 8.87 on the Use of Other Crimes

Evidence as a Circumstance in Aggravation

The court gave CALJIC No. 8.87, regarding the use of other criminal

activity as a circumstance in aggravation under section 190.3, factor (b). That

instruction, as given, referred to the other crimes committed “which involved the

express or implied use of force or violence or the threat of force or violence.”

Defendant argues that the instruction creates an impermissible mandatory

presumption by removing the force or violence requirement from the jury‟s

determination. He further argues that the instruction erroneously fails to define

that requirement. These errors, he contends, violated his state and federal

constitutional rights to a jury trial and to a reliable penalty verdict determination.

As defendant acknowledges, we have repeatedly held that the trial court

determines as a matter of law whether the prosecution‟s proposed evidence is a

crime involving the use, attempt, or threat of violence. The jury determines only

whether the prosecution has proved beyond a reasonable doubt that the defendant

committed the unadjudicated criminal act. (Bryant, supra, 60 Cal.4th at pp. 451-

452; Streeter, supra, 54 Cal.4th at p. 266; People v. Taylor (2010) 48 Cal.4th 574,

656 (Taylor); People v. Burney (2009) 47 Cal.4th 203, 259; People v. Loker

(2008) 44 Cal.4th 691, 745; People v. Monterroso (2004) 34 Cal.4th 743, 793;

Nakahara, supra, 30 Cal.4th at p. 720.)

52

Defendant urges us to reconsider this long-standing precedent. He

criticizes Nakahara for its brief treatment of the issue. There we held that “[t]he

question whether the acts occurred is certainly a factual matter for the jury, but the

characterization of those acts as involving an express or implied use of force or

violence, or the threat thereof, would be a legal matter properly decided by the

court.” (Nakahara, supra, 30 Cal.4th at p. 720.) Defendant argues that the force

or violence requirement is a component of relevancy, first addressed by the court

as a question of admissibility, but ultimately determined by the jury under

Evidence Code section 403, subdivision (a)(1). He claims that People v. Dunkle

(2005) 36 Cal.4th 861 (Dunkle)20 so holds. He is wrong.

Section 190.3 defines what type of evidence may be admitted. It provides

that evidence of the use, attempt, or threat of force or violence “may be presented”

and “shall be admitted.” (§ 190.3.) People v. Phillips (1985) 41 Cal.3d 29, held

that the trial court must determine, as a question of law, whether unadjudicated

conduct is admissible as meeting the statutory definition. (Id. at p. 72, fn. 25,

citing Evid. Code, § 310.) The jury then determines whether the activity has been

proven beyond a reasonable doubt. (Phillips, at p. 72, fn. 25, citing Evid. Code,

§ 312; accord, Anderson, supra, 25 Cal.4th at p. 589.)

This interpretation is consistent with our long-standing understanding of the

jury‟s role in evaluating unadjudicated crimes as a circumstance in aggravation.

At the penalty phase, the jurors must “ „ “make an individualized assessment of

the character and history of the defendant to determine the nature of the

punishment to be imposed.” ‟ ” (Taylor, supra, 48 Cal.4th at p. 653.) “[T]he

ultimate question for the sentencer is simply whether the aggravating

20 Dunkle was disapproved on another ground in People v. Doolin (2009) 45

Cal.4th 390, 421, footnote 22.

53

circumstances, as defined by California‟s death penalty law (§ 190.3), so

substantially outweigh those in mitigation as to call for the penalty of death, rather

than life without parole.” (Anderson, supra, 25 Cal.4th at p. 589.) “The

defendant‟s history of criminal violence is relevant” to that issue. (Id. at p. 588.)

We have long held, however, that the jury need not be instructed sua sponte on the

elements of the unadjudicated crimes. (Taylor, at p. 656; Anderson, at pp. 587-

589; People v. Tahl (1967) 65 Cal.2d 719, 736-738.) This is because the issue

before the jury “is the appropriate penalty for the defendant‟s already-proven

capital crimes, not whether the defendant committed the specific elements of

additional criminal offenses.” (Anderson, at p. 588.) For the same reasons, the

jury need not be instructed that it must find the unadjudicated criminal offenses

involved the use, attempt, or threat of force or violence before it can consider the

evidence. Rather, the jury simply considers the presence or absence of such

factors in determining “the weight, if any, to be given to these incidents for

purposes of the individualized assessment of [defendant‟s] character and history.”

(Tully, supra, 54 Cal.4th at p. 1030.)

Dunkle, supra, 36 Cal.4th 861, stands not to the contrary. There we

rejected the defendant‟s argument that the trial court erred in failing to define

“ „express or implied threat to use force or violence‟ ” in the context of an

uncharged burglary. (Id. at p. 922.) We observed that the phrase “possesses a

„ “common-sense core of meaning . . . that criminal juries should be capable of

understanding.” ‟ ” (Ibid., quoting Tuilaepa v. California, supra, 512 U.S. at p.

975.) We also rejected the defendant‟s argument that “the instruction on burglary

for theft improperly permitted the jury to find an aggravating factor based on an

offense not involving the use or threat of force or violence against a person.”

(Dunkle, at p. 922, italics added.) We concluded that “the burglary instruction, the

general section 190.3, factor (b) instruction, and CALJIC No. 8.87 adequately

54

conveyed to the jury that before it could consider the [uncharged] incident in

aggravation it had to find, beyond a reasonable doubt, all of the elements of the

offense of burglary and that the offense involved the use or attempted use of force

or violence, or the express or implied threat to use force or violence.” (Id. at pp.

922-923.) We were not called upon to decide whether CALJIC No. 8.87 was

defective, as defendant here contends. Nor did we acknowledge or discuss the

long line of established authority (see ante, at p. 52), that the trial court determines

as a matter of law whether the uncharged crime involved the use, attempt, or threat

of violence. “It is axiomatic, of course, that a decision does not stand for a

proposition not considered by the court.” (People v. Harris (1989) 47 Cal.3d

1047, 1071.)

Notably, CALJIC No. 8.87 did not preclude counsel from arguing against

the aggravating nature of such evidence based on the surrounding facts. Counsel

in fact urged the jury to find this evidence insignificant because the cell

extractions were prompted by minor rules violations and no correctional officers

were injured.

5. Constitutionality of the Death Penalty Statute and Related

Instructions

Defendant presents a multipronged general attack on the constitutionality of

California‟s death penalty statute and related standard jury instructions. We have

previously considered and consistently rejected these challenges. We decline to

revisit the following holdings:

The use of the same jury at both the guilt and penalty phases does not

deprive defendant of his constitutional right to an impartial and unbiased jury

under the Sixth, Eighth, and Fourteenth Amendments. (Taylor, supra, 48 Cal.4th

at p. 652.)

55

Section 190.2 adequately narrows the class of murderers subject to the

death penalty. (People v. Rogers (2006) 39 Cal.4th 826, 892 (Rogers); People v.

Jablonski (2006) 37 Cal.4th 774, 837.)

Section 190.3, factor (a) properly allows the jury to consider the

circumstances of the crime as an aggravating factor. (Thomas, supra, 51 Cal.4th

at p. 506.) It is not overbroad either facially or as applied. (People v. Robinson

(2005) 37 Cal.4th 592, 655.)

“[T]he use of unadjudicated offenses [under section 190.3, factor (b)] in

capital proceedings, but not in noncapital matters, does not violate equal

protection or due process principles.” (Taylor, supra, 48 Cal.4th at p. 651.)

“The death penalty law is not unconstitutional for failing to impose a

burden of proof—whether beyond a reasonable doubt or by a preponderance of the

evidence—as to the existence of aggravating circumstances, the greater weight of

aggravating circumstances over mitigating circumstances, or the appropriateness

of a death sentence.” (People v. Thornton (2007) 41 Cal.4th 391, 469; accord,

People v. Elliot (2005) 37 Cal.4th 453, 487-488 (Elliot).) Furthermore, there is no

federal constitutional requirement that the jury unanimously agree on the existence

of aggravating factors. (Taylor, supra, 48 Cal.4th at p. 651; Rogers, supra, 39

Cal.4th at p. 893.) The United States Supreme Court‟s decisions in Cunningham

v. California (2007) 549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296,

Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S.

466, do not compel a different conclusion. (Taylor, at pp. 651-652; Rogers, at p.

893.)

“The trial court was not required to instruct the jury that . . . the beyond-a-

reasonable-doubt standard and requirement of jury unanimity do not apply to

mitigating factors.” (Streeter, supra, 54 Cal.4th at p. 268; accord, Kansas v. Carr

(2016) __ U.S. __, __ [136 S.Ct. 633, 642] [“[O]ur case law does not require

56

capital sentencing courts „to affirmatively inform the jury that mitigating

circumstances need not be proved beyond a reasonable doubt.‟ ”].) Nor was it

required to instruct the jury that there is a “ „ “presumption of life” ‟ at the penalty

phase.” (Lomax, supra, 49 Cal.4th at p. 595.)

“Use in the sentencing factors of such adjectives as „extreme‟ (§ 190.3,

factors (d), (g)) and „substantial‟ (id., factor (g)) does not act as a barrier to the

consideration of mitigating evidence in violation of the federal Constitution.”

(People v. Avila (2006) 38 Cal.4th 491, 614-615.)

“The trial court is not required to delete inapplicable sentencing factors

from CALJIC No. 8.85.” (People v. McDowell (2012) 54 Cal.4th 395, 444

(McDowell).) Nor must the court instruct the jury that section 190.3, factors (d),

(e), (f), (g), (h) and (j) are only relevant as factors in mitigation. (Thomas, supra,

51 Cal.4th at p. 506.)

CALJIC No. 8.88 adequately informs the jury that “the central

determination is whether death is the „appropriate punishment.‟ ” (McDowell,

supra, 54 Cal.4th at p. 444; see Woodson v. North Carolina (1976) 428 U.S. 280,

305.) The instruction “properly explains to the jury that it may return a death

verdict if the aggravating evidence „warrants‟ death.” (McDowell, at p. 444.)

“The instructions were not impermissibly broad or vague in directing jurors

to determine whether the aggravating factors were „so substantial in comparison

with the mitigating factors that it warrants death instead of life without parole.‟

[Citation.]” (People v. Valdez (2012) 55 Cal.4th 82, 180.)

CALJIC No. 8.88 properly conveys to the jury that life in prison without

the possibility of parole is the appropriate punishment if the factors in mitigation

outweigh those in aggravation. (People v. Jones (2012) 54 Cal.4th 1, 78-79.)

57

“The death penalty law is not unconstitutional for failing to require that the

jury base any death sentence on written findings.” (Elliot, supra, 37 Cal.4th at p.

488.)

“Finally, we have repeatedly held that the death penalty does not violate the

Eighth Amendment to the United States Constitution or international law,

including article VII of the International Covenant on Civil and Political Rights

(Dec. 16, 1966). (People v. Butler [(2009)] 46 Cal.4th [847,] 885; People v. Cook

[(2007)] 40 Cal.4th [1334,] 1368.) We also adhere to our conclusion that review

for intercase proportionality is not constitutionally compelled. (Pulley v. Harris

(1984) 465 U.S. 37, 42, 50-51; People v. Williams [(2008)] 43 Cal.4th [584,] 649;

People v. Harris (2008) 43 Cal.4th 1269, 1322-1323.)” (Lomax, supra, 49 Cal.4th

at p. 595.)

III. DISPOSITION

The judgment is affirmed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

58

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Delgado

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S089609

Date Filed: February 27, 2017

__________________________________________________________________________________

Court: Superior

County: Kings

Judge: Peter M. Schultz

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Jolie Lipsig,

Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys

General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell, Sean

M. McCoy and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jolie Lipsig

Deputy State Public Defender

770 L Street, Suite 1000

Sacramento, CA 95814-3518

(916) 322-2676

Tia M. Coronado

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 324-5232