The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL LEON BELL,
Defendant and Appellant.
S080056
Stanislaus County Superior Court
133269
May 2, 2019
Justice Corrigan authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.
PEOPLE v. BELL
S080056
Opinion of the Court by Corrigan, J.
While his girlfriend and her teenage son waited outside,
defendant Michael Leon Bell robbed a convenience store and
fatally shot the clerk. He was convicted of murder in the course
of a robbery along with burglary, robbery, shooting at an
occupied vehicle, unlawful possession of a firearm, and
enhancements for a serious felony conviction and personal use
of a firearm.1 The jury fixed the penalty at death. The court
also imposed a determinate sentence of 25 years and 4 months
on the additional charges and enhancements. We affirm the
judgment.
I. BACKGROUND
A. Guilt Phase
Three surveillance cameras recorded a robbery of the Quik
Stop convenience store in Turlock on January 20, 1997. The
footage showed clerk Simon Francis dusting shelves at 3:54 a.m.
when a man entered the store. The robber wore a ski mask and
a dark hooded jacket. He appeared to be somewhere between
six feet, two inches and six feet, five inches tall.2 He wore gloves
1
Penal Code sections 187, 190.2, subdivisions (a)(17)(A) &
(a)(17)(G), 211, 246, former 12021, 667, subdivision (d), 1192.7,
subdivision (c), and 12022.5. All statutory references are to the
Penal Code unless otherwise stated.
2
Defendant is six feet, five inches tall and, when arrested,
weighed 260 pounds.
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Opinion of the Court by Corrigan, J.
and carried a revolver. The robber grabbed Francis and pulled
him across the store, telling him to open the safe. When Francis
said he did not know the combination, the robber dragged him
behind the counter to the cash register, which Francis opened.
The robber ordered him to lie face down on the floor, grabbed
cash from the register, and threw the money tray to the floor.
He fired two shots at Francis and left. The robber was in the
store less than a minute and escaped with $261. Surveillance
equipment also recorded the sound of gunshots being fired
outside after the robber left the store.
Shortly before 4:00 a.m., truck driver Daniel Perry
stopped at an intersection near the Quik Stop and saw a tall
man in a dark hooded jacket run out of the store. Perry pulled
away but heard two gunshots. Believing he was being shot at,
Perry kept going. He passed a dark sedan parked off the side of
the road. As Perry watched from his side mirror, the sedan’s
lights came on and it drove off. Perry called the police. His truck
had been dented near the passenger door. Later, police
recovered a bullet from the driveway just north of the Quik Stop.
Tire tracks and shoe prints were also visible nearby.
Truck driver Richard Faughn stopped at the Quik Stop at
3:58 a.m. The cash register drawer was open, and the clerk lay
motionless behind the counter. The register’s money tray sat
against the clerk’s leg, and change was scattered on the floor.
Faughn called 911 and stayed until police arrived.
Emergency responders tried to resuscitate Francis
without success. When they moved his body, they found a
deformed bullet beneath him. Francis had been shot twice in
the back. The fatal bullet traveled through his heart and lungs,
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Opinion of the Court by Corrigan, J.
exiting through the chest. A second bullet lodged in his
abdominal cavity.
Police identified defendant as a suspect and interviewed
him. Defendant said he had been sick and spent the weekend of
the murder at his girlfriend’s apartment. He claimed he did not
go to the Quik Stop or anywhere else the entire weekend. He
said he had been with his girlfriend, Roseada T., her teenage
son, Taureen “Tory” T.,3 and Tory’s friend, later identified as
Robert D. Roseada drove a blue 1988 Chevrolet Beretta.
The police later arrested Roseada, searched her home, and
impounded her car. Tread patterns from her car tires were
compared with tire tracks found near the Quik Stop. Patterns
from both front tires and the right rear tire could not be excluded
as a source of marks left at the scene. Roseada helped police
recover the murder weapon from a field. A .357 magnum
revolver and several .38 caliber bullets were buried inside a
green cloth case. Bullets fired from this gun matched slugs
recovered from the crime scene and the victim’s autopsy.
Another bullet, recovered from outside the store, was too
damaged for a comparison. Gunshot residue on the victim’s
sweater indicated that the gun was only one to two feet away
when fired.
Witness Phillip Campbell recognized the revolver as one
he had purchased from his brother-in-law and later sold to Nick
Feder. Feder sold the gun to Debra Ochoa. Ochoa testified that
3
Because Roseada and Tory share the same last name, and
because Tory was a minor, we use their given names. Roseada
died from natural causes on December 27, 1998, around three
months before the trial began.
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Opinion of the Court by Corrigan, J.
she had known defendant for approximately 14 years. She was
not questioned about the gun. (See post, at pp. 37-39.)
Nathan N. was 15 years old at the time of the murder.4
Roseada, Tory, and the defendant were all friends of his.
Defendant borrowed a black hooded jacket, size XXXL, from
Nathan about a month before the murder and returned it
sometime thereafter. Nathan and his foster mother brought the
jacket to the police. Nathan examined still images from the
Quik Stop surveillance video and testified that the murderer’s
jacket looked like his.
Nathan recalled seeing defendant with a revolver two or
three weeks before the robbery. Sometime later, defendant gave
the gun to a friend. Roseada later asked Nathan and Felix F. to
get the gun back. They brought the gun to Roseada, who cleaned
it. Afterward, they buried it in a field inside a green package.
Tory, 14 years old at the time of the murder, testified as
part of a plea agreement.5 Defendant moved in with Tory and
his mother sometime in 1996. In December of that year,
defendant showed Tory a .357 revolver loaded with .38 caliber
bullets. Defendant said he got the gun because he wanted to rob
someone. One night, Tory saw the gun and a red ski mask in
his mother’s bedroom. Roseada and defendant were loading the
gun and cleaning it with alcohol, which they said would prevent
fingerprints. They also wrapped electrical tape around
defendant’s shoes to mask their appearance. Defendant wore a
black jacket Tory recognized as belonging to Nathan. Tory
4
Nathan testified under a grant of immunity.
5
He pleaded guilty to being an accessory after the fact and
was sentenced to time served.
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Opinion of the Court by Corrigan, J.
understood his mother and defendant were preparing to commit
a robbery and wanted to join them. Although Roseada
protested, defendant convinced her to let Tory come along.
At defendant’s direction, Roseada drove around looking for
a store to rob. After defendant rejected some locations, they
chose the Quik Stop because it had no customers and was in an
isolated area. Defendant got out of the car and asked Tory if he
should kill the clerk. Tory said no. When defendant ran out,
holding cash in his hand, a large truck drove by. Defendant shot
twice at the truck, got in the car, and Roseada drove off. Back
at the apartment, they cleaned the gun and bullets. Tory buried
the gun and burned defendant’s shoes, as defendant told him to
do. Tory identified defendant as the shooter in the surveillance
video. Defendant told Tory he shot the clerk because he put up
a struggle. He said he shot at the truck driver because he
wanted to leave no witnesses.
The defense presented testimony from two boys who had
been in custody with Tory in juvenile hall. Kenneth A. said Tory
had bragged that he committed the Quik Stop murder and was
going to let defendant take the blame for it.6 Tory told Brandon
T. he was in the car with his mother when her boyfriend
committed the murder, but he described the boyfriend as “a
black guy” from Las Vegas. He did not mention defendant. Tory
also said he had buried the gun and burned a mask used in the
crime.
6
At 5 feet, 10 inches tall and 135 pounds, Tory was
considerably smaller than defendant, but the defense stressed
that police had originally described the suspect as someone
under six feet tall and of slim build.
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Opinion of the Court by Corrigan, J.
On rebuttal, Tory’s grandmother testified that Roseada
was once married to an African-American man from Las Vegas
who died 10 months before the Quik Stop murder.
B. Penalty Phase
1. Prosecution Evidence
The victim’s father testified that Francis was the youngest
of seven children. He was very upset after Francis died and
could not go to church or visit his son’s grave. The victim’s older
sister described Francis as kind and understanding, “the jewel
of our family.” He was precious to her because she had raised
him like a son. She suffered a stroke upon learning of his death.
Francis was 27 years old and had been married less than two
months when murdered. His wife’s cousin described him as her
“best friend” and “the nicest guy [she had] ever met.” Shortly
before his death, Francis was buying frames for wedding
photographs and planning to pick up the videotape of his
wedding. He never had a chance to see it. The prosecutor played
a four-minute excerpt from the tape.
The prosecution presented extensive testimony about
defendant’s past. L.O. described a sexual assault in May 1991.
She was 19 years old, living with the defendant and their two
young children. Defendant came home angry and intoxicated.
He dragged her to the bedroom, threw her onto the bed, removed
some of her clothing, and tried to have sex with her. In her
struggle to escape, L.O. suffered a swollen lip. She later learned
she was more than three months pregnant with defendant’s
third child at the time.
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In September 1993, defendant assaulted Patrick Carver.7
Defendant and some others confronted Carver at a house where
he was staying. A girl tried to provoke Carver into hitting her,
while the group circled around him. This incident ended
without a fight, but later that evening the group returned.
Defendant dragged Carver out of his car and slammed him to
the ground. Defendant repeatedly kicked Carver in the face
while the others restrained him. After Carver was beaten into
unconsciousness, defendant threw him over a backyard fence.
Carver recalled being tied to a chair while the group continued
to beat and kick him. At one point, defendant took Carver’s
knife, held it across his throat, and jabbed its tip into the top of
Carver’s head. Feigning concern at Carver’s distress, defendant
asked if he would like a drink. When Carver said yes, defendant
turned on the garden hose and held it to Carver’s mouth. As
Carver started to drink, defendant grabbed his head and shoved
the hose deep into his mouth. Carver began choking, shaking,
and kicking. Defendant did not remove the hose until one of the
others pointed a gun at him and said “that was enough.”
Defendant demanded money from Carver, who said he could get
some from his family. The group drove to a pay phone. While
Carver was using the phone, the police drove up and defendant
fled.
Defendant assaulted two other men less than a year before
the Quik Stop killing. In February 1996, he confronted Gary
Wolford, claiming Wolford’s friend had provided “some bad
7
Two witnesses testified about this assault. Lawrence
Smith, one of the assailants, testified during the prosecution’s
case-in-chief, and victim Patrick Carver testified in rebuttal.
Carver identified his primary assailant as “Mike Brown” but
said he did not recognize defendant as being this person.
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Opinion of the Court by Corrigan, J.
crank.” Defendant insisted Wolford take drugs with him to
show he was not “a snitch and a rat” and demanded $100. He
shoved Wolford to the ground, grabbed him by the neck, and
smashed his head against a wall. After three to four hours,
defendant let Wolford leave but warned that he would hurt
Wolford if he did not get $100 by the next day. A month later,
defendant assaulted Larry Woolridge, a friend he had known
since childhood. Woolridge had given defendant $25 to buy
marijuana. Defendant left with the money but returned and
accused Woolridge of “being a cop.” Defendant and another man
pulled Woolridge outside, struck him in the face, and swung
machetes at him. Defendant demanded Woolridge’s money,
which he surrendered.
Around a month after the Quik Stop murder, defendant
led the police on a high-speed chase. A patrol officer saw
defendant shortly after midnight, going 90 miles per hour on city
streets. He slowed after passing the patrol car, but then drove
through a stop sign and accelerated away with his headlights
off. The officer pursued with lights and siren. Rounding a
corner, the officer noticed defendant’s car parked at the curb,
apparently unoccupied. As the officer stood outside his patrol
car, defendant sat up, started his car’s engine, and sped away.
The chase continued through narrow residential streets at
speeds between 55 and 75 miles per hour. Defendant ran
multiple stop signs and sometimes drove on the wrong side of
the road. He was eventually forced to stop at a construction
barricade. Defendant was uncooperative, initially refusing to
leave the car or put his hands in the air. He yelled at officers
and resisted being handcuffed. His blood alcohol content was
between .10 and .11 percent.
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Finally, sheriff’s deputies described two incidents while
defendant was in custody. Before trial began, a deputy
discovered a jail-made knife, or shank, hidden inside one of
defendant’s shoes. It had been sharpened on both sides and
tapered on one end to a sharp point. Hidden inside the other
shoe was a piece of glass wrapped in tape. Later, during the
penalty phase, deputies heard the sound of metal hitting the
floor near defendant’s cell. When they came to investigate,
defendant handed over a shank he had hidden under his
mattress.
Defendant stipulated that in September 1995 he was
convicted of being a felon in possession of a firearm.
2. Defense Evidence
Joseph Black and Lawrence Smith gave additional details
about defendant’s fight with Patrick Carver. Black said the
fight concerned Carver’s delinquent rent. Carver wanted to
brawl, but defendant “got the better of the fight.” Black never
saw defendant use a knife, jump on Carver, throw him over a
fence, or force a garden hose into his mouth. Smith admitted
that, contrary to his testimony for the prosecution, he did not
initially tell the police about the knife, fence-throwing, or garden
hose. He lied because he feared for his safety. However, he later
told the police that defendant had hit Carver several times and
used a knife. Black confirmed that the group drove to a pay
phone so that Carver could ask his family for money and that
defendant ran away when police arrived. The group falsely
identified defendant as “Mike Brown.”
James Park testified as an expert on conditions for
California prisoners sentenced to life without parole. He showed
pictures of a typical cell and explained that all life prisoners are
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Opinion of the Court by Corrigan, J.
automatically assigned to a maximum security prison. Two 12-
foot fences topped with razor wire surround the prison. Between
them is a 13-foot high-voltage electric fence. Prisoners who get
in “bad trouble” can be kept in secure housing for up to 23 hours
a day. Those not confined in the secure unit can work, go to
school, exercise, watch television, or visit prison shops and
libraries.
Defendant’s mother described his upbringing. She gave
birth to defendant when she was 16 years old. He was nearly
three months premature and weighed slightly over three
pounds, requiring incubation for eight weeks. During his first
two years, he was very sickly and frequently hospitalized. The
family moved often because defendant’s father was in the Air
Force. At about age four, defendant was prescribed Ritalin for
hyperactivity. His mother stopped giving it to him after a few
days because of its effect on him. Defendant’s father had little
patience with defendant, and the parents separated when
defendant was about 10 years old. His mother remarried, but
defendant disliked his stepfather. Defendant was caught
shoplifting and had increasing difficulties in school. Frustrated
with the rules in his mother’s house, defendant moved in with
his girlfriend at age 16. He became more distant and frustrated.
Defendant’s younger siblings had no behavioral problems. Both
were in college at the time of trial.
Defendant’s mother said she loved him and was
overwhelmed by the possibility he would receive the death
penalty. Defendant’s brother said he loved him, too. Defendant
often advised his brother to stay in school and not behave as he
had. L.O. testified that defendant was drunk on the night he
sexually assaulted her, and she no longer hated him for it. She
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Opinion of the Court by Corrigan, J.
allowed him to see their three young children. They would be
devastated if he were executed.
Neuropsychologist Nell Riley testified. Defendant’s IQ
was 77, which, while not indicating mental retardation, was “a
very low score” correlating with subnormal intelligence. He had
severe dyslexia, poor reading skills, attention deficit
hyperactivity disorder (ADHD), and impaired executive
functioning. Defendant’s prematurity and low birth weight put
him at high risk for developmental disabilities. Such children
often have lifelong challenges. They are frequently disruptive
and have difficulty with others. Reading problems hamper their
academic and work ability. Although Ritalin and other drugs
can help, defendant did not have the benefit of these
medications. Finally, Riley addressed an emotional outburst
defendant made at the end of his mother’s testimony. (See post,
at p. 12.) Defendant’s inability to control his emotions or
behavior in this situation was typical for someone with his
neurological deficits.
Psychologist Gretchen White compiled a psychosocial
history based on available records and interviews with
defendant and his family. Defendant faced “risk factors” at
every developmental stage. He was negatively influenced by his
prematurity and low birth weight, the young age of his mother,
sickliness during early life, hyperactivity, his father’s extended
absences, and marital strife. Infants with birth weights as low
as defendant’s tend to display negative temperaments, ADHD,
and low social competence. Defendant also suffered digestive
problems and was hospitalized for anemia at seven months old.
He suffered congestive heart failure and required a blood
transfusion. At school, defendant demonstrated learning
disabilities and low intelligence, which made him feel like a
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Opinion of the Court by Corrigan, J.
failure. His world changed dramatically at age eight when his
two siblings were born only a year apart. At age nine, he
underwent two surgeries on his genitals but still had a
deformity despite the attempt at correction. He was distressed
by his parents’ divorce and a lack of paternal attention.
Defendant did not see his father after age 12 or 13. He felt
rejected and had trouble adjusting to the new family
arrangement. As an adolescent, defendant had conflicts with
his authoritarian stepfather. He transferred to a different high
school and was humiliated by his placement in special education
classes. All these risk factors led to an increasingly troubled life.
3. Rebuttal
Sherriff’s deputies testified about defendant’s courtroom
outburst. Defendant’s mother was crying when she left the
witness stand. The judge called for a recess and jurors started
walking toward the jury room. Although the record is not clear,
it appears the jurors were no longer present when the outburst
began. Defendant began pounding on the counsel table with
both fists, then stood and tried to lift the table. Three deputies
grabbed him but were unable to subdue him. Additional
deputies joined the struggle. One deputy was hit and thrown
over the railing into the audience section. Another deputy
struck defendant on the legs with a baton, to no avail. At one
point, defendant grabbed a deputy by the hair and held her in a
headlock. Ultimately, it took eight or nine deputies to restrain
defendant, who was still struggling as he was carried out in
handcuffs and leg irons.
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Opinion of the Court by Corrigan, J.
II. DISCUSSION
A. Pretrial Issues
1. Funds for Jury Consultant
Defense counsel filed multiple requests for section 987.98
funds to hire a jury consultant. The court denied his requests
but ultimately authorized an even greater amount for the
appointment of Keenan9 counsel. Defendant argues the rulings
violated both state law and his rights to due process, equal
protection, and a reliable penalty determination. There was no
error.10
8
Section 987.9, subdivision (a) provides in relevant part: “In
the trial of a capital case . . . the indigent defendant, through the
defendant’s counsel, may request the court for funds for the
specific payment of investigators, experts, and others for the
preparation or presentation of the defense. . . . Upon receipt of
an application, a judge of the court, other than the trial judge
presiding over the case in question, shall rule on the
reasonableness of the request and shall disburse an appropriate
amount of money to the defendant’s attorney. . . . In making the
ruling, the court shall be guided by the need to provide a
complete and full defense for the defendant.”
9
Keenan v. Superior Court (1982) 31 Cal.3d 424, 430
provides that section 987.9 funds may be used to appoint second
defense counsel in a capital case. (See People v. Ochoa (1998) 19
Cal.4th 353, 407-408.)
10
“With regard to this claim and virtually every other claim
raised on appeal, defendant asserts that the error violated his
rights to a fair trial and reliable penalty determination under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and corresponding provisions of the
California Constitution. In most instances, defendant failed to
make these constitutional arguments in the trial court.
Nevertheless, unless otherwise indicated, we consider the
merits of these newly raised arguments because either (1) the
appellate claim is of a kind that required no objection to preserve
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a. Background
Defense counsel first sought to retain Eda Gordon from
New Mexico, who had assisted the Stanislaus County Public
Defender’s Office in a previous murder case. The court denied
this request, noting that defense counsel was “quite competent
to select his own jury,” especially given that voir dire would be
conducted largely by the judge. Counsel renewed his request in
a supplemental declaration. He argued the district attorney had
greater resources available for jury selection and funding a
defense expert would ultimately save both money and time.
After an ex parte hearing, the court again denied the request.
The case was neither unusual nor complex. Defense counsel was
“highly competent,” with “considerable experience in trying
capital cases.” The court doubted whether retaining an expert
would save costs because counsel would spend considerable time
talking with the expert. Moreover, even assuming the district
attorney had superior resources, the defense is not entitled to
equivalency but only assistance that is reasonably necessary.
Finally, the occasional approval of funds for a jury consultant
did not suggest an expert was constitutionally required. The
majority of murder cases are tried without one.
it, or (2) the claim invokes no facts or legal standards different
from those before the trial court, but merely asserts that an
error had the additional legal consequence of violating the
Constitution. [Citation.] In those circumstances, defendant’s
new constitutional arguments are not forfeited on appeal.
[Citations.] Where rejection of a claim of error on the merits
necessarily leads to a rejection of the newly asserted
constitutional objection, no separate constitutional analysis is
required and we have provided none.” (People v. Virgil (2011)
51 Cal.4th 1210, 1233-1234, fn. 4 (Virgil).)
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Less than a week after this ruling, defense counsel
requested a new hearing on the ground that defendant was not
present at the previous hearing and had not waived his right to
attend. Another ex parte hearing was held before a different
judge. At this hearing, a deputy public defender testified about
his use of jury consultant Gordon in a recent murder trial. The
case involved an African-American defendant who murdered an
Assyrian clerk during a late-night convenience store robbery,
which was captured on videotape. Although the jury found that
defendant guilty with special circumstances, it returned a
verdict of life without possibility of parole. The public defender
explained in detail how the consultant assisted him, both in jury
selection and later stages of trial. Defendant’s counsel believed
a jury consultant would be helpful because the community had
become especially sensitive to violence committed by African
Americans. The court concluded a jury consultant was not
needed to ensure a fair trial and denied the requested funds.
However, because defense counsel demonstrated a need for
assistance in the jury selection process, the court invited him to
submit a new application for a private investigator’s services.
Defendant then sought $4,500 for investigative assistance
during jury selection. The court granted $2,750 and specified
that only previously authorized defense investigators Joe
Maxwell and Robert Wood could be retained. A month later,
defense counsel advised the court that both of these
investigators had refused the assignment. He now sought
$7,000 to retain Karen Fleming, an Oakland consultant
experienced in selecting capital juries. The request was denied.
Counsel later renewed his request for investigative funds and
asked that the court expand its authorization to include
investigators other than Maxwell and Wood. The court denied
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additional funds but permitted counsel to hire a different
investigator.
Defendant later renewed his request for a jury consultant
after learning that a second deputy district attorney would
assist in jury selection and trial. At an ex parte hearing, Deputy
District Attorney Birgit Fladagar testified that a second
prosecutor had been assigned to try the case jointly with her.
Both would take an active role in jury selection. Defense counsel
asserted that he also required assistance in jury selection,
although he was not seeking a second lawyer. Counsel said he
needed an expert’s help identifying jurors who would be
receptive to defendant’s mitigation defense. The court once
again denied the request, explaining it had never perceived a
correlation between use of a jury consultant and a trial’s result.
Shortly after the hearing, defense counsel requested $6,750 to
expand the authorization of previously appointed Keenan
counsel to include assistance with jury selection.11 This request
was granted in full.
b. Discussion
Section 987.9 provides a mechanism for indigent capital
defendants to seek funds for investigators, experts, and others
whose assistance is needed to prepare or present a defense. In
ruling on such a request, the court must consider the
defendant’s “need to provide a complete and full defense.”
(§ 987.9, subd. (a).) While the court should generally view a
motion for assistance with “considerable liberality,” it should
also order the requested services only if the defendant
11
The prior appointment extended only to discovery,
research, and motion and writ preparation.
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demonstrates they are reasonably necessary. (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 286; People v. Guerra
(2006) 37 Cal.4th 1067, 1085.) The court here acted within its
discretion. (See Gonzalez and Soliz, at p. 286.)
As defendant recognizes, we have previously upheld
orders denying section 987.9 funds for a jury selection expert.
(See People v. Box (2000) 23 Cal.4th 1153, 1182-1185 (Box);
People v. Mattson (1990) 50 Cal.3d 826, 847-848 (Mattson).) The
circumstances here are no more compelling. Mattson and Box
both involved the murder of a child, yet the potentially upsetting
nature of those crimes did not demand the use of a jury
consultant. This convenience store robbery murder was not so
unusual or complex that it would be particularly difficult to find
impartial jurors. (See Mattson, at p. 848.) Although defense
counsel argued he needed help identifying jurors who would be
responsive to his mitigation case, it does not appear an expert
was reasonably necessary to ensure a fair penalty trial. Defense
counsel had extensive trial experience, which included death
penalty cases, and was described by the court as highly
competent. Experienced attorneys “ ‘are trained as well as
anyone else to select juries.’ ” (Box, at p. 1184.) Defendant’s
claim is not supported by Ake v. Oklahoma (1985) 470 U.S. 1087,
which held that psychiatric assistance must be provided when
an indigent defendant presents a plausible insanity defense.
“Unlike psychiatric expertise, . . . a jury selection expert . . .
would not offer any expertise not already available to counsel.”
(Box, at p. 1185.)
Nor did the assertedly greater resources of the district
attorney’s office require the court to fund a jury consultant for
the defense. The prosecution did not employ such an expert.
Once it became clear that two deputy district attorneys would
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be trying the case, the court expanded defendant’s Keenan
counsel appointment to include jury selection. As a result, the
court did authorize section 987.9 funding to assist counsel with
jury selection. Defendant’s complaint is merely that the court
funded a second lawyer for this purpose rather than one of his
preferred experts. The decision fell within the court’s ample
discretion.
Finally, there was no equal protection violation.
Defendant complains that if he had been represented by the
public defender, that office could have hired a jury selection
expert without obtaining court approval. Because his counsel
was appointed from a panel of private attorneys, he had to apply
for court funding. The premise of this claim is speculative.
Although a public defender’s office can hire an expert from its
own funds, its ability to obtain reimbursement for this expense
is also measured by section 987.9. (See Gov. Code, § 15201; Cal.
Code Regs., tit. 2, §§ 1025.1, 1025.3; 67 Ops.Cal.Atty.Gen. 310
(1984).) Despite minor differences in the process, indigent
defendants represented by the public defender’s office have no
greater access to state-sponsored jury consultants than those
represented by private counsel. Both are entitled to state
funding for a jury consultant only when such services “are
reasonably necessary for the preparation or presentation of the
defense.” (§ 987.9, subd. (a).)
2. Jury Selection
Defendant contends voir dire was impermissibly restricted
and the trial court failed to excuse panelists who were biased in
favor of the death penalty. To the extent these claims were not
forfeited, they lack merit.
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The jury selection process consisted of both group and
individual voir dire. Prospective jurors completed a 39-page
questionnaire and came to court in groups of 15 or 16. For each
group, the court read general instructions explaining the nature
of the case, including the possibility of a penalty phase trial, and
conducted a groupwide inquiry touching generally on bias and
prejudice. Panelists were then questioned individually about
their death penalty views. (See Hovey v. Superior Court (1980)
28 Cal.3d 1 (Hovey).) The court advised counsel in advance that
it intended to ask each juror a specific set of questions to
evaluate their qualification to serve under Wainwright v. Witt
(1985) 469 U.S. 412, 424 (Witt). Both defense counsel and the
prosecutor were given an opportunity to question each panelist
during the sequestered voir dire. Jury selection proceeded over
nine court days and comprises five volumes of transcript. At the
conclusion of this process, defendant used 14 of his 20
peremptory challenges and did not express dissatisfaction with
the jury selected.
a. Adequacy of Voir Dire
Defendant makes several arguments concerning the
adequacy of voir dire. He first asserts the court unfairly
restricted voir dire because it curtailed questioning from defense
counsel. The record is to the contrary. Defense counsel had an
opportunity to question each prospective juror, sometimes at
considerable length, during the sequestered voir dire. Counsel
frequently used this questioning to probe panelists’ assurances
that they could be fair and to lay the groundwork for cause
challenges. The court initially became frustrated with the
length of this questioning and perceived that defense counsel
was “putting words in” prospective jurors’ mouths. It announced
that attorneys would question the panelists first, followed by
19
PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
court questioning, after which no further questioning would be
permitted. Immediately after this decision, however, the court
allowed defense counsel to ask follow-up questions of the next
panelist. The court quickly reverted to its original pattern of
questioning the jurors first and then allowing questions from
counsel.
Defendant did not object to the adequacy of voir dire (see
People v. Foster (2010) 50 Cal.4th 1301, 1324 (Foster)), nor does
he identify any specific questions he was precluded from asking
(see People v. Vieira (2005) 35 Cal.4th 264, 287). Assuming his
claim of error was not forfeited (see People v. Taylor (2010) 48
Cal.4th 574, 608), it lacks merit. Although the court sometimes
told defense counsel to limit or wrap up his questioning, any
restrictions on voir dire were reasonable. We have repeatedly
observed that the trial court has “ ‘considerable discretion . . . to
contain voir dire within reasonable limits.’ ” (People v. Jenkins
(2000) 22 Cal.4th 900, 990; see People v. Williams (2006) 40
Cal.4th 287, 307.) This discretion extends to death qualification.
(People v. Butler (2009) 46 Cal.4th 847, 859.) The court may
limit attorney questioning as appropriate (People v. Robinson
(2005) 37 Cal.4th 592, 614), and, indeed, “has a duty to restrict
voir dire within reasonable bounds to expedite the trial.” (People
v. Avila (2006) 38 Cal.4th 491, 536, italics added.) Defendant’s
attorney had wide latitude to explore prospective jurors’ biases.
(Hovey, supra, 28 Cal.3d at p. 80; see Mattson, supra, 50 Cal.3d
at p. 847.) He had an opportunity to question each prospective
juror and typically did so. The mild limitations placed on
counsel’s questioning did not deprive defendant of an impartial
jury.
Nor is there merit to defendant’s related claim that the
court impermissibly “chilled” defense counsel’s advocacy by
20
PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
threatening to end the Hovey voir dire. The first prospective
juror called in for sequestered voir dire strongly supported the
death penalty but clearly told the court he could keep an open
mind and base his verdict on the evidence presented. Defense
counsel asked several leading questions that attempted to
portray the juror as unqualified to serve. The court expressed
exasperation with this tactic and suggested counsel was abusing
the voir dire process. If counsel continued to question jurors in
this manner, the court said it would end the sequestered
questioning and bring all panelists into court for group voir dire.
Later that day, the court again expressed frustration at defense
counsel’s attempts to paint jurors as disqualified after they had
promised to keep an open mind on penalty. Noting that defense
counsel was “taking too long with each juror,” the court proposed
to avoid the problem by switching to group voir dire with the
next panel. The court never did change the process, however,
and individual, sequestered questioning continued until the
conclusion of voir dire.
There was no discernable reduction in the extent of voir
dire. “We have repeatedly held that ‘there is no federal
constitutional requirement that a trial court conduct
individualized, sequestered voir dire in a capital case.’ ” (People
v. Jackson (2016) 1 Cal.5th 269, 357.) In any event, considered
in context, the court’s statements about switching to group voir
dire were mere expressions of frustration, and the court took no
steps to change the process for later panels. Nor does defendant
demonstrate that the statements impermissibly “chilled” his
attorney’s advocacy. Defendant now theorizes that counsel
could have pursued other lines of inquiry with some seated
jurors. The assertion is not persuasive. All attorneys have to
make choices about the areas explored and the time devoted to
21
PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
the process. Nor is a “chilling” effect evident from counsel’s
failure to ask probing questions of jurors that the defense might
have found favorable for other reasons. Despite questionnaire
responses defendant now claims were problematic, his attorney
chose not to peremptorily challenge any of the jurors whose
questioning defendant now claims was inadequate. The trial
court’s manner of conducting voir dire is not reversible unless it
is clear the resulting trial was rendered fundamentally unfair.
(People v. Carter (2005) 36 Cal.4th 1215, 1250.) No such
showing has been made here.
Defendant also complains the court “did not engage in a
bona fide” assessment of jurors’ qualification to serve but found
them qualified so long as they paid “lip service to neutrality” in
responding to a series of rote, leading questions under Witt.
Trial courts are obligated to make a conscientious effort to
determine prospective jurors’ views on capital punishment to
ensure qualification to serve. (People v. Wilson (2008) 44 Cal.4th
758, 779.) However, the court does not necessarily shirk this
obligation because it asks uniform questions that track
appropriate qualification concerns. Indeed, we have previously
“advised trial judges to ‘closely follow the language and formulae
for voir dire recommended by the Judicial Council . . . to ensure
that all appropriate areas of inquiry are covered in an
appropriate manner.’ ” (People v. Bolden (2002) 29 Cal.4th 515,
538 (Bolden).)
In People v. Leon (2015) 61 Cal.4th 569, 588-589 (Leon),
the entire voir dire of nearly every potential juror consisted of
four questions addressing the Witt death-qualification
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
standard.12 The court rarely asked follow-up questions and
permitted no attorney inquiry. (Leon, at p. 589.) Although we
chastised this parsimonious approach, we concluded the voir
dire was not so inadequate as to render the trial unfair. (Ibid.)
Here, the voir dire was far more expansive. The court
questioned each prospective juror in accordance with the Witt
standard and frequently asked additional questions. It gave
both attorneys an opportunity to inquire further and explore
other areas of concern. Defendant complains the court gave
undue weight to favorable responses to the Witt questions, but
the court was entitled to accept jurors’ assurances that they
could set aside personal feelings and judge the case fairly. This
is the heart of the death-qualification inquiry. (See Leon, at
pp. 591-592; Lockhart v. McCree (1986) 476 U.S. 162, 176.)
When jurors admitted they could not set aside their biases,
12
The questions were: “(1) ‘Do you have such conscientious
objections to the death penalty that, regardless of the evidence
in this case, you would refuse to vote for murder in the first
degree merely to avoid reaching the death penalty issue?’ (2) ‘Do
you have such conscientious objections to the death penalty that,
regardless of the evidence in this case, you would automatically
vote for a verdict of not true as to any special circumstance
charged merely to avoid the death penalty issue?’ (3) ‘Do you
have such conscientious objections to the death penalty that,
should we get to the penalty phase of this trial, and regardless
of the evidence in this case, you would automatically vote for a
verdict of life imprisonment without the possibility of parole and
never vote for a verdict of death?’ (4) ‘Do you have such
conscientious opinions regarding the death penalty that, should
we get to the penalty phase of this trial, and regardless of the
evidence in this case, you would automatically, and in every
case, vote for a verdict of death and never vote for a verdict of
life imprisonment without the possibility of parole?’ ” (Leon,
supra, 61 Cal.4th at pp. 588-589.)
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
either for or against the death penalty, the court properly
excused them for cause. Moreover, to the extent defendant
argues overreliance on the Witt questioning led the court to
erroneously deny cause challenges and seat biased jurors, he
forfeited this claim by failing to exhaust his peremptory
challenges or express dissatisfaction with the jury. (See post, at
p. 25.)
Nor is there merit to defendant’s complaint that the court
unfairly rehabilitated biased jurors with leading questions that
signaled an “ ‘appropriate’ ” response. We recently rejected the
same claim in People v. Jackson, supra, 1 Cal.5th at pages 358-
359, explaining that “ ‘[t]he possibility that prospective jurors
may have been answering questions in a manner they believed
the trial court wanted to hear identifies at most potential, rather
than actual, bias and is not a basis for reversing a judgment.’ ”
“Nor does the court’s occasional use of leading questions when
attempting to rehabilitate ‘death-leaning’ jurors suggest a lack
of impartiality.” (People v. Mills (2010) 48 Cal.4th 158, 190.)
Here, the court posed rehabilitative questions to all prospective
jurors who expressed opinions on the death penalty, including
those who strongly opposed it. This questioning was neither
unfair nor improper.
b. Denial of Cause Challenges
Defendant claims the court erroneously refused to dismiss
seven prospective jurors based on their death penalty views.
(Witt, supra, 469 U.S. at p. 424.) He also contends another juror
would have been incapable of judging the case impartially
because the juror’s wife received dialysis treatments from the
murder victim’s wife. He argues deferential review is improper
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
because the court was motivated simply to expedite voir dire,
rather than ascertain jurors’ true qualifications.
“Defendant’s failure to exhaust his peremptory challenges
or to express dissatisfaction with the jury as selected forfeits
[these claims] on appeal.” (People v. Davis (2009) 46 Cal.4th
539, 582; see People v. Mickel (2016) 2 Cal.5th 181, 216.)
“Moreover, whatever the scope may be of the trial court’s power
or duty to excuse biased jurors sua sponte, any failure to do so
does not ‘excuse defendant’s failure to preserve this issue for
review.’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 487.) Nor
can defendant establish prejudice. None of the prospective
jurors in question served on his jury. (See Davis, at p. 582.)
Defendant excused six of the eight with peremptory challenges,
and a seventh was never called into the jury box. The eighth
was seated as an alternate but did not deliberate in either phase
of trial. Where no challenged panelist actually served on
defendant’s jury, “ ‘there is no basis for us to conclude that the
jury empanelled was anything but impartial.’ ” (Davis, at
p. 582; see Hillhouse, at pp. 487-488.)
3. Claims Related to Codefense Counsel’s Later
Employment with District Attorney
When a juvenile delinquency petition was filed against
Tory T. in connection with the Quik Stop robbery, the court
appointed the private law firm of Perry and Wildman. Attorney
Alan Cassidy had primary responsibility for the case and
represented Tory when he entered into a written plea agreement
with the prosecution. Tory promised to testify against
defendant and plead to a reduced charge in exchange for the
prosecution’s recommendation that he be released from custody
and placed on probation. The next day, Tory testified at a
preliminary hearing. During the months Cassidy represented
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
Tory, Cassidy had applied for and ultimately accepted an offer
of employment with the Stanislaus County District Attorney’s
Office. Almost two weeks after Tory entered the plea agreement
and testified at defendant’s preliminary hearing, Cassidy
started work at the district attorney’s office.
Based on these facts, defendant filed a pretrial motion
seeking recusal of the entire district attorney’s office and
disclosure of all communications between Tory and Cassidy. In
the alternative, he argued Tory should be precluded from
testifying at trial. Cassidy and the head of his former firm
testified at a hearing on the motion. Both claimed the attorney-
client privilege as to communications with Tory and the contents
of his case file. Cassidy testified that the plea negotiations for
Tory began early in the case and “had been pretty much
finalized” well before Cassidy became aware of the opening at
the district attorney’s office. He stated that the possibility of
this employment did not change his negotiations for Tory, and
he acted at all times in Tory’s best interest. Once at the district
attorney’s office, in accordance with its conflicts policy, Cassidy
took no part in discussions about any cases handled by his
former firm. Cassidy had no supervisorial role in the
prosecutor’s office.
The court refused to order production of Tory’s case file
because it contained privileged documents and defendant
presented no ground for invading the privilege. The court also
denied the motions to recuse the district attorney’s office or
preclude Tory from testifying. The district attorney’s office and
Cassidy had taken appropriate steps to prevent Cassidy’s
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
involvement in the case, and the court found nothing to suggest
interference with defendant’s right to a fair trial.13
a. Discovery Motion
Defendant contends his rights to confrontation,
compulsory process, and due process were violated by the denial
of discovery into Tory’s discussions with his former attorney.
We have previously rejected similar claims and do so again.
The attorney-client privilege, one of the oldest recognized,
allows a client to refuse to disclose, and to prevent others from
disclosing, confidential communications with an attorney.
(Evid. Code, § 954.) The “fundamental purpose behind the
privilege is to safeguard the confidential relationship between
clients and their attorneys so as to promote full and open
discussion of the facts and tactics surrounding individual legal
matters.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.)
The privilege is absolute (Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725, 732 (Costco)) and can take
precedence even over a criminal defendant’s trial rights. Thus,
13
This hearing, very early in defendant’s case, featured the
first of his courtroom outbursts. (Another is described post, at
page 61, footnote 17.) When the court was announcing its
ruling, defendant interrupted:
“THE COURT: . . . And it appears to me that he would get
a fair trial.
“THE DEFENDANT: Bull shit.
“[DEFENSE COUNSEL]: Hey, that’s enough.
“THE DEFENDANT: I don’t get no fair trial, man.
“THE COURT: You haven’t even had your trial yet, Mr.
Bell.
“[DEFENSE COUNSEL, apparently speaking to
defendant]: That’s okay. That’s enough. This is not helping.”
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
it is settled that “a criminal defendant’s right to due process does
not entitle him to invade the attorney-client privilege of
another.” (People v. Gurule (2002) 28 Cal.4th 557, 594; see
People v. Johnson (1989) 47 Cal.3d 1194, 1228 (Johnson).) Nor
does the withholding of material protected by the attorney-client
privilege violate a criminal defendant’s right to confrontation.
(Gurule, at p. 594; see Pennsylvania v. Ritchie (1987) 480 U.S.
39, 54.)
Similar facts arose in Littlefield v. Superior Court (1982)
136 Cal.App.3d 477. Two individuals were charged with a series
of murders, but one pleaded guilty with a promise to testify
against the other. (Id. at pp. 480-481.) The remaining
defendant sought to discover conversations between that
individual and his public defender, arguing he needed these
confidential communications to impeach this crucial witness
against him. (Id. at pp. 481-482.) The Court of Appeal observed
that the attorney-client privilege continues even after the
relationship has ended, and that bolstering an attack on a
witness’s credibility was not a valid reason to invade the
privilege. (Id. at pp. 482-483.) Johnson, supra, 47 Cal.3d at
page 1228 adopted Littlefield’s reasoning against a similar
challenge. As in those cases, defendant here was able to cross-
examine Tory about the plea bargain and Tory’s motivation for
testifying. He was not entitled to obtain absolutely privileged
communications between Tory and his attorney merely to
bolster this attack. (See Johnson, at p. 1228; Littlefield, at
p. 482.)
Nor is there merit to defendant’s argument that the trial
court should have held an in camera hearing to balance his
constitutional rights against the confidentiality interests of Tory
and his attorney. With few exceptions, none of which apply
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Opinion of the Court by Corrigan, J.
here, the court may not require disclosure in order to rule on a
privilege claim. (Evid. Code, § 915, subd. (a); Costco, supra, 47
Cal.4th at pp. 736-739.) To support a contrary position,
defendant cites a dissenting opinion positing that in camera
review and a balancing of interests might be appropriate to
avoid “[e]xtreme injustice” when “a criminal defendant seeks
disclosure of a deceased client’s confession to the offense.”
(Swidler & Berlin v. United States (1998) 524 U.S. 399, 413 (dis.
opn. of O’Connor, J.).) Justice O’Connor’s concerns about
preventing injustice after a client’s death simply do not apply
here. Tory was both alive and subject to cross-examination. The
trial court correctly denied defendant’s request and was not
required to conduct an in camera hearing before doing so.
b. Motion to Recuse District Attorney’s
Office
Defendant’s recusal motion was properly denied. A
motion to recuse the district attorney “may not be granted
unless the evidence shows that a conflict of interest exists that
would render it unlikely that the defendant would receive a fair
trial.” (§ 1424, subd. (a)(1).) “The statute ‘articulates a two-part
test: “(i) is there a conflict of interest?; and (ii) is the conflict so
severe as to disqualify the district attorney from acting?” ’ ”
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711
(Haraguchi).) A “conflict” exists, under section 1424’s first
prong, whenever there is “ ‘a reasonable possibility that the DA’s
office may not exercise its discretionary function in an
evenhanded manner.’ ” (People v. Eubanks (1996) 14 Cal.4th
580, 592 (Eubanks).) But recusal is not required unless, under
the second prong, the possibility of unfair treatment “is so great
that it is more likely than not the defendant will be treated
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
unfairly during some portion of the criminal proceedings.”
(Haraguchi, at p. 713.)
The trial court’s decision on a motion to recuse the
prosecutor is reviewed for abuse of discretion (Haraguchi, supra,
43 Cal.4th at p. 711), “even in capital cases” (Hollywood v.
Superior Court (2008) 43 Cal.4th 721, 728). The trial court’s
factual findings are reviewed for substantial evidence, and its
application of the law will be reversed only if arbitrary and
capricious. (Haraguchi, at pp. 711-712; People v. Vasquez (2006)
39 Cal.4th 47, 56.)
Defendant fails to show an abuse of discretion. Cassidy
negotiated a plea bargain that served the best interests of his
client. The terms of this agreement were discussed “well before”
Cassidy applied for employment with the district attorney. The
agreement was finalized before he started work there. Cassidy
did not participate in any way in this case. His only
conversations about the matter concerned scheduling his own
appearance to testify at the recusal hearing. Drawing in part
on cases from the civil context, defendant complains the district
attorney’s “ ‘ethical screen’ ” was inadequate because the office
employed few attorneys and Cassidy’s work area was located
near those of defendant’s prosecutors. The court credited
Cassidy’s sworn testimony that he took no part in any case
discussions. Defendant offers nothing to the contrary beyond
speculation. Even assuming the circumstances gave rise to a
conflict, recusal was appropriate only if defendant could show a
“real, not merely apparent,” potential for prejudice. (Eubanks,
supra, 14 Cal.4th at p. 592.) Because defendant failed to show
an actual likelihood that he would receive unfair treatment as a
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Opinion of the Court by Corrigan, J.
result of Cassidy’s employment (see ibid.), the court properly
denied the recusal motion.14
B. Guilt Phase Issues
1. Alleged Confrontation Errors
Defendant claims his constitutional rights to
confrontation and effective cross-examination were violated
three times during the guilt phase. To the extent the claims are
not forfeited, there was no prejudicial error.
a. Admission of Deceased Codefendant’s
Statements
At the close of his guilt phase evidence, defendant called
Detective Olson for additional questioning about the
investigation. Among other things, defendant asked about the
forensic testing done on a “possible bloodstain sample” taken
from the Chevy Beretta’s passenger door frame. Olson said he
sent the sample to the Department of Justice for testing but
never received the results. On cross-examination, Olson
testified that there was little blood at the crime scene and no
reason to believe a substance found on the car “at some point
later on” would be blood. The following colloquy ensued:
14
Defendant also contends section 1424 violates equal
protection because it applies more relaxed ethical standards to
conflicts arising in criminal prosecutions than in civil cases.
Because he failed to raise this challenge below it is forfeited, as
are his derivative claims that section 1424 violates due process
and the right to a reliable penalty judgment. (See People v.
Alexander (2010) 49 Cal.4th 846, 880, fn. 14.)
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Opinion of the Court by Corrigan, J.
“Q: Did you also receive information from [Roseada
T.][15] that things were done to that car subsequent or after
the killing?
“A: That’s correct.
“Q: Did she tell you that the car was washed?
“A: She said it was washed, yes.
“Q: At a professional car wash?
“A: I don’t recall if she said professional. What I recall
— at least the portion I recall is that she went out the next
morning and washed down the interior of the car herself.
That’s what I recall.
“Q: Did she also talk about washing the exterior of the
car, if you remember?
“A: I recall something about the exterior, but I don’t
know if she did it or a professional did it.”
Defense counsel did not object to this testimony. During a
recess, however, he complained that the prosecutor had elicited
statements made by a codefendant in violation of People v.
Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968)
391 U.S. 123. Counsel said he had not objected at the time
because he “didn’t think that was the appropriate thing to do in
terms of trial strategy,” but he argued the testimony was
material and grounds for a mistrial.
The court denied the motion. First, defendant failed to
object, even though he had an opportunity to do so. Any problem
could have been cured at that time. Second, defendant had
opened the door to this evidence by questioning Detective Olson
15
As noted, Roseada died of natural causes before trial.
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
about the failure to test possible blood found on the car, and the
prosecution had a right to follow up and explain why testing
would have been futile. The court invited defendant to submit
an appropriate limiting instruction, but no such instruction was
sought or given.
Although he asserted Aranda/Bruton error below,
defendant now concedes the rule “has no application where, as
here, the defendant and the codefendant whose incriminating
extrajudicial statements are offered . . . are not jointly tried.”
(See People v. Brown (2003) 31 Cal.4th 518, 537 (Brown).) In
any event, Roseada’s statements about washing the car were not
“ ‘facially incriminating’ of defendant and so would not run afoul
of the rule.” (Id. at p. 537, fn. 5; see Richardson v. Marsh (1987)
481 U.S. 200, 207.) Defendant now complains the admission of
Roseada’s statements about washing the car violated his
confrontation rights under Crawford v. Washington (2004) 541
U.S. 36 (Crawford). Assuming this claim was not forfeited by
defendant’s failure to make a timely hearsay objection at trial
(see Evid. Code, § 353), it also lacks merit.
Detective Olson related an out-of-court statement from
Roseada, but the statement was admissible, regardless of its
truth, to show its effect on Olson. It tended to explain why Olson
had not pursued forensic testing of the possible blood stain
found on Roseada’s car. “ ‘ “[E]vidence of a declarant’s
statement that is offered to prove that the statement imparted
certain information to the hearer and that the hearer, believing
such information to be true, acted in conformity with that belief
. . . is not hearsay, since it is the hearer’s reaction to the
statement that is the relevant fact sought to be proved, not the
truth of the matter asserted in the statement.” ’ ” (People v.
Livingston (2012) 53 Cal.4th 1145, 1162.) “Out-of-court
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
statements that are not offered for their truth are not hearsay
under California law [citations], nor do they run afoul of the
confrontation clause.” (People v. Ervine (2009) 47 Cal.4th 745,
775-776 (Ervine).) Moreover, as the trial court observed, the
defense opened the door by questioning Olson about his failure
to test for blood on the car. Defendant’s questioning insinuated
that the investigation was sloppy, and Roseada’s statement was
admissible to rebut that suggestion. Accordingly, there was no
confrontation clause violation. Although a limiting instruction
was not given, defendant is in no position to complain. He failed
to make a hearsay objection and, despite the court’s invitation,
failed to propose a limiting instruction.
b. Testimony Regarding Citizen
Informant’s Identification
Defendant’s probation officer, Michael Moore, testified at
the preliminary hearing that he called the Turlock Police
Department after he recognized a newspaper photograph
related to the Quik Stop murder. Moore was shown the
surveillance tape and still images from the video. He told police
that the shooter’s posture, gait, and voice all resembled
defendant. Defendant moved to exclude Moore’s testimony from
trial, arguing it would be irrelevant and unduly prejudicial. The
court denied the motion, with the prosecution’s assurance that
the jury would not learn defendant was on probation.
Before Moore was called to testify, he informed the
prosecutor that he recognized one of the seated jurors. The juror
was an acquaintance who might know Moore’s occupation.
Defendant refused to agree to a stipulation in lieu of Moore’s live
testimony, and the prosecution decided not to risk a mistrial by
calling Moore as a witness.
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
Later, defendant called Detective Olson and questioned
him about the surveillance video. When asked why he had
watched the video on one occasion, Olson replied, without
naming Moore, that he “had a person that wanted to look at it.”
Defense counsel asked if Olson had “discussions with anyone
about the height and weight of [the] perpetrator . . . after
watching the videotape.” Olson responded that he and the
unnamed person had such a discussion while they watched the
tape together, and this discussion informed his opinion about
the suspect’s appearance. On cross-examination, the prosecutor
sought to flesh out this testimony. He requested permission to
ask about information Olson had received from a citizen
informant, promising not to name Moore or his occupation. The
court remarked that the defense had “opened the door” and
allowed the questioning.
The prosecutor elicited testimony that, the day after the
crime, Olson met with a citizen informant who knew defendant.
Olson showed this person the surveillance videotape and
photographs and played an audiotape from the crime. The
prosecutor then asked what the person said about how the
photograph looked in relation to defendant. Before Olson could
answer, the court interrupted and excused the jury. During the
ensuing colloquy, defense counsel objected to the questioning on
foundation and hearsay grounds and continued to dispute that
his questions had opened the door for testimony about Olson’s
discussion with Moore. The prosecutor argued that Moore’s
statements identifying defendant as the person in the videotape
could be admitted for the nonhearsay purpose of establishing
why Olson proceeded as he did with the investigation. Although
the court did not accept this argument, it allowed the prosecutor
to elicit evidence of what Olson did after talking to the citizen
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PEOPLE v. BELL
Opinion of the Court by Corrigan, J.
informant. Defense counsel did not object to this resolution.
Back on the stand, the prosecutor asked Olson what he did
“based on” watching the surveillance tape with the citizen
informant. Olson replied, “I set up an appointment to meet with
Michael Bell.”
Defendant now complains “the identification statements
of Michael Moore [related] through the testimony of Detective
Olson” were hearsay, admitted in violation of due process and
the confrontation clause. (See Crawford, supra, 541 U.S. 36.)
Although Olson did not relate a hearsay statement attributable
to Moore, defendant argues the informant’s identification of him
was obvious to jurors. Citing various federal appellate
decisions, he argues Crawford extends to “testimony
communicating the substance of an absent declarant’s
statements . . . even when there is no verbatim account of the
declarant’s testimonial hearsay.” (See Ocampo v. Vail (9th Cir.
2011) 649 F.3d 1098, 1110; Ryan v. Miller (2d Cir. 2002) 303
F.3d 231, 250-251.)
Assuming without deciding that the claim was preserved,
and a legitimate application of the hearsay rule, any error in the
admission of Olson’s testimony was harmless beyond a
reasonable doubt. (See Chapman v. California (1967) 386 U.S.
18.) An implied identification from an unidentified citizen
informant was not significant given the considerable direct and
circumstantial evidence placing defendant at the crime scene.
Neither side mentioned it during closing argument. Defendant’s
claim that Tory committed the crime was comparatively quite
weak. The defense was itself based primarily on hearsay and
did not account for the significant disparity in the two men’s
statures. Defendant was close to 6 feet, 5 inches tall and 260
pounds, while Tory was only 5 feet, 10 inches, and 135 pounds.
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Opinion of the Court by Corrigan, J.
Finally, the jury viewed the tape repeatedly. They saw Tory
testify and saw defendant daily. They were able to form their
own opinions about whether defendant was the person in the
surveillance tape.
c. Witness Who Invoked Privilege Against
Self-incrimination
Before trial, defense counsel learned that prosecution
witness Debra Ochoa was on felony probation or parole and
would claim her Fifth Amendment privilege against self-
incrimination if asked questions about gun possession or
ownership. The prosecution hoped to show that the murder
weapon was sold to Ochoa, who gave it to defendant. Defense
counsel said he would not object to the prosecutor establishing
Ochoa’s possession of the gun through other witnesses but
opposed mention of her expected testimony during opening
statements. The prosecutor agreed, and the topic was not
mentioned in openings.
During the prosecution’s case-in-chief, Los Angeles
resident Phillip Campbell testified that he sold a .357 Smith &
Wesson revolver to Nick Feder in 1995. Feder testified that he
purchased the gun from Campbell and four or five months later
sold it to his friend Debra Ochoa. Feder said the murder weapon
recovered by the police looked just like the gun he sold Ochoa.
Before Ochoa’s testimony, the court held a hearing outside
the jury’s presence. In response to the prosecutor’s questions,
Ochoa said defendant had been her friend for approximately 14
years and had worked for her on many occasions. When defense
counsel asked if she ever gave defendant a handgun, Ochoa
invoked her Fifth Amendment privilege. Arguing Ochoa’s
invocation prevented an effective cross-examination, defendant
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Opinion of the Court by Corrigan, J.
moved to exclude her testimony and strike the testimony of
Feder and Campbell. The prosecutor responded that any cross-
examination about the gun would be outside the scope of her
direct, which would be limited to questions about Ochoa’s
relationship with defendant. The court permitted the
prosecution to call Ochoa but ruled neither party could ask her
questions that would elicit an invocation of the privilege. In the
jury’s presence, Ochoa testified that she had known defendant
for approximately 14 years. Defendant did not cross-examine.
Defendant now complains the court violated his
confrontation rights by allowing Ochoa to testify because her
anticipated claim of privilege prevented him from cross-
examining her about the gun. Prosecution witnesses traced the
gun to Ochoa before the crime. After the crime, witnesses
described receiving the gun from defendant. Defendant argues
his inability to cross-examine Ochoa was prejudicial because he
could not combat the prosecution’s inference, advanced in both
guilt and penalty phase closing arguments, that Ochoa had
given defendant the murder weapon. The claim lacks merit.
The trial court properly explored Ochoa’s claim of privilege
and instructed the parties not to ask questions that would
prompt its invocation. (See Evid. Code, § 913, subd. (a); People
v. Frierson (1991) 53 Cal.3d 730, 743.) The constitutional
concern raised by a witness’s assertion of the Fifth Amendment
is that the witness cannot be cross-examined about the
testimony that elicited the claim. (See People v. Douglas (1990)
50 Cal.3d 468, 508.) There was no Sixth Amendment violation
here because the trial court’s ruling prevented Ochoa from
providing any testimony that would have evaded cross-
examination. The prosecution properly asked about Ochoa’s
relationship with defendant, which was relevant. Defendant
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Opinion of the Court by Corrigan, J.
was free to cross-examine her on that subject. If defendant
wished to dispel the inference that Ochoa gave him Feder’s gun,
he could have asked whether she saw defendant during his trip
to Los Angeles, or generally how they spent that time together.
Defendant was not precluded from eliciting facts about their
friendship that might have cut against the inference that Ochoa
gave him a weapon.
It also bears noting that any hindrance of defendant’s
cross-examination resulted from Ochoa and was not
attributable to the People or the court. Her “attorney’s decisions
regarding the best means to defend her, including the advice to
invoke the privilege against self-incrimination, may not have
been consistent with defendant’s interest, but they do not
establish prosecutorial manipulation or any other impropriety.”
(People v. Mincey (1992) 2 Cal.4th 408, 442, fn. 7 (Mincey).) To
the extent defendant contends the prosecution should not have
been allowed to call Ochoa without granting her immunity, he
did not request this remedy below. Although defendant now
speculates that Ochoa could have given the gun to someone else,
he also risked the possibility that her testimony would be quite
damaging. “[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.” (Delaware v. Fensterer (1985)
474 U.S. 15, 20.) The prosecution was not required to grant
unsolicited immunity or forgo calling a relevant witness under
these circumstances.
2. Admission of Surveillance Videotape
Before trial, defendant moved under Evidence Code
section 352 to exclude the audio from the crime scene
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Opinion of the Court by Corrigan, J.
surveillance video. He argued the victim’s noises after being
shot were “extremely prejudicial” and not probative. After
listening to the tape, the court disagreed, noting that the tape
was probative to show what happened during the offense.
Moreover, the tape captured the sound of two gunshots outside,
which corroborated the account of the truck driver who said he
was shot at by someone who had just come out of the store. The
court took the matter under submission but was inclined to find
that the audiotape’s probative value outweighed any prejudice.
The record does not include a ruling on defendant’s motion.
However, in later proceedings the attorneys repeatedly observed
that approximately two minutes of footage containing the
victim’s dying sounds had been edited out of the videotape
shown during the guilt phase.
The prosecution played the videotape with two guilt-phase
witnesses. During the testimony of store owner Henry
Benjamin, the prosecutor played footage that simultaneously
displayed images from four surveillance cameras. She then
showed footage of the crime captured by two additional cameras.
A later portion of the videotape was shown during the testimony
of customer Richard Faughn, who had found the clerk and called
911. The prosecutor played footage starting when Faughn
entered the store and ending when responding officers arrived
at the scene. The video was also played during the prosecution’s
guilt phase closing argument.
Defendant’s opening brief on appeal contends the trial
court erred by allowing the prosecutor to repeatedly play sounds
of the victim dying during the guilt phase of trial. However,
apart from his response immediately upon being shot, the
victim’s sounds were redacted from the video shown in the guilt
phase. Defendant’s own trial attorney observed that the court
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Opinion of the Court by Corrigan, J.
had “limited the playing of the [tape] to the video only without
the sounds.” Accordingly, defendant’s claim is at variance with
the record. To the extent defendant now argues the court erred
in allowing video images of the crime to be shown multiple
times, the claim has been forfeited. Defense counsel specifically
told the court, “I’m not objecting to the tape or any portion of the
tape except the small portion that records the victim’s dying.”
The court addressed that issue by having the sounds removed.
Defense counsel questioned the wisdom of showing the crime
from multiple camera angles after the video proved to be
upsetting to the victim’s family members who attended the trial.
But he did not raise an objection. In any event, there was no
error. The videotape was highly probative evidence of how the
crime was committed. Further, because the victim was shot
while lying behind a counter, images of the victim sustaining the
wounds were not presented.
During the penalty phase, the prosecutor sought to play
the entire surveillance tape, including the two minutes after the
shooting that had been redacted in the guilt phase. Over
defense counsel’s objection that sounds of the victim dying were
“inflammatory,” the court observed that a murder victim’s last
moments are relevant at the penalty stage. The court admitted
the entire tape, and the prosecutor played it during her closing
argument. Defendant claims the court erred because the record
does not affirmatively establish that the court weighed the
tape’s relevance against the potential for undue prejudice. (See
Evid. Code, § 352.) He argues the prejudicial effect of the
victim’s dying noises was “compounded” by statements in the
prosecutor’s closing argument imagining what the victim’s last
thoughts might have been. Defendant did not object to these
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Opinion of the Court by Corrigan, J.
statements in the prosecutor’s closing argument, and his appeal
does not claim the argument was improper.
The court has discretion to exclude evidence under
Evidence Code section 352 “if its probative value is substantially
outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” “ ‘ “Prejudice” as contemplated by
[Evidence Code] section 352 is not so sweeping as to include any
evidence the opponent finds inconvenient. Evidence is not
prejudicial, as that term is used in a section 352 context, merely
because it undermines the opponent’s position or shores up that
of the proponent. The ability to do so is what makes evidence
relevant. The code speaks in terms of undue prejudice. Unless
the dangers of undue prejudice, confusion, or time consumption
“ ‘substantially outweigh’ ” the probative value of relevant
evidence, a section 352 objection should fail. [Citation.] . . . The
prejudice that section 352 “ ‘is designed to avoid is not the
prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence.’ [Citations.] ‘Rather, the
statute uses the word in its etymological sense of “prejudging” a
person or cause on the basis of extraneous factors. [Citation.]’
[Citation.]” [Citation.] In other words, evidence should be
excluded as unduly prejudicial when it is of such nature as to
inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is
relevant, but to reward or punish one side because of the jurors’
emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury
will use it for an illegitimate purpose.’ ” (People v. Doolin (2009)
45 Cal.4th 390, 438-439.) “An exercise of discretion under
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Opinion of the Court by Corrigan, J.
Evidence Code section 352 will be affirmed unless it was
arbitrary, capricious, or patently absurd and the ruling resulted
in a miscarriage of justice.” (People v. Winbush (2017) 2 Cal.5th
402, 469 (Winbush).)
As to victim photographs, the court’s discretion under
Evidence Code section 352 to exclude evidence showing
circumstances of the crime “is much narrower at the penalty
phase than at the guilt phase. This is so because the prosecution
has the right to establish the circumstances of the crime,
including its gruesome consequences ([Pen. Code,] § 190.3,
factor (a)), and because the risk of an improper guilt finding
based on visceral reactions is no longer present.” (People v.
Bonilla (2007) 41 Cal.4th 313, 353-354; see People v. Anderson
(2001) 25 Cal.4th 543, 591-592.) At the penalty phase, the jury
“is expected to subjectively weigh the evidence, and the
prosecution is entitled to place the capital offense and the
offender in a morally bad light.” (Box, supra, 23 Cal.4th at
p. 1201.)
The court did not abuse its discretion in admitting the
unredacted videotape in the penalty phase. There is no dispute
that it accurately represents the events depicted. The
prosecution was entitled to demonstrate the full extent of the
suffering defendant inflicted on his victim. We have listened to
the penalty-phase tape. The sounds are relatively brief, lasting
around 30 seconds. While unpleasant, they are not so gruesome
that they would distract the jury or prevent it from performing
its proper role.
3. Character Evidence
Defendant asserts the court erred in allowing Kenneth A.’s
mother to testify about her son’s untruthfulness. Kenneth, who
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Opinion of the Court by Corrigan, J.
testified for defendant, said Tory had bragged in juvenile hall
that he had committed the Quik Stop murder. The prosecution
called Kenneth’s mother in rebuttal. Regina A. had raised her
son until he was 13. During the ensuing six years, they had only
infrequent contact when she visited Kenneth in juvenile hall or
county jail. Regina thought she knew her son well, although not
“real well.” She knew his family members but not many of his
friends or neighbors. Over defendant’s objection, the court
allowed Regina to give an opinion that sometimes Kenneth was
truthful and sometimes he was not. She said he had been known
to lie at times to gain an advantage for himself. Defendant also
objected unsuccessfully when Regina was asked whether
Kenneth had a reputation among family members for
truthfulness. She responded, “they probably would think that
he wasn’t truthful.”
Evidence of a witness’s character for truthfulness, or its
opposite, is relevant to credibility and admissible for this
purpose. (Evid. Code, § 780, subd. (e).) This evidence may be
shown by “(a) evidence of specific instances of conduct,
(b) opinion evidence, or (c) reputation evidence.” (Simons, Cal.
Evidence Manual (2018) Witnesses, § 3:49, p. 288.)
Defendant concedes evidence of Kenneth A.’s character for
truthfulness was admissible but argues there was insufficient
foundation for Regina’s testimony about it. A lay witness may
testify to an opinion if the testimony is based on the witness’s
personal observations or knowledge. (See People v. McAlpin
(1991) 53 Cal.3d 1289, 1306-1307.) “An individual who has
known a witness for a reasonable length of time or who knows
the reputation of that witness for honesty and veracity in the
community may qualify to testify as to the witness’ character for
honesty or veracity.” (People v. Sergill (1982) 138 Cal.App.3d
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Opinion of the Court by Corrigan, J.
34, 39.) Regina had raised her son for 13 years. Although her
contact with Kenneth grew less frequent, she continued to visit
him during the time he was in custody. These contacts were
more than adequate to establish a foundation of personal
knowledge. (See People v. Kipp (1998) 18 Cal.4th 349, 371.) Nor
did the court err in admitting reputation testimony. Although
Regina could not speak to Kenneth’s reputation among friends
and neighbors, she was aware of his reputation for honesty
among family members. Her testimony about Kenneth’s
reputation was limited to these family views. (See People v.
Cobb (1955) 45 Cal.2d 158, 164.)
4. Alleged Instructional Errors
a. Credibility of a Drug Addict
Several prosecution witnesses, including its key witness
Tory T., admitted being under the influence of alcohol or drugs
at the time of the events they described. At the close of the guilt
phase, defendant requested an instruction stating: “The
testimony of a drug addict must be examined and weighed by
the jury with greater care than the testimony of a witness who
does not abuse drugs. The jury must determine whether the
testimony of the drug addict has been affected by the drug use
or the need to obtain drugs.” The court properly refused to give
the instruction.
“[A] trial court may properly refuse an instruction offered
by the defendant if it incorrectly states the law, is
argumentative, duplicative, or potentially confusing [citation],
or if it is not supported by substantial evidence [citation].”
(People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).) Instructions
that highlight specific evidence, or invite the jury to draw
inferences favorable to one side, are considered argumentative
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Opinion of the Court by Corrigan, J.
and generally should not be given. (People v. Earp (1999) 20
Cal.4th 826, 886; Mincey, supra, 2 Cal.4th at p. 437.)
In directing the jury to examine the testimony of certain
prosecution witnesses with greater skepticism, defendant’s
proposed instruction was argumentative. It implied that
witnesses had not only used drugs but were addicted to them.
It was also duplicative of a proposed instruction the court did
give, with modification, at defendant’s request. The jury was
instructed: “In determining the credibility of a witness, you may
consider the witness’s capacity to hear or see that about which
the witness testified and the witness’s ability to recollect or
relate such matters. [¶] Specifically, in this regard, you may
consider whether any witness was under the influence of alcohol
and drugs or other intoxicants at the time the witness testified.
If you believe that any witness was under the influence of
alcohol, drugs or other intoxicants at the time the witness
testified, this factor may be considered by you in judging the
credibility of the witness.” The court did not err in refusing to
give defendant’s duplicative instruction on the same topic.
Although defendant contends federal courts have allowed
similar instructions, the decisions he cites involved “a far
narrower category of witnesses—namely, narcotics addicts who
are paid informers for the Government with criminal charges
pending against them.” (U.S. v. Kinnard (D.C. Cir. 1972) 465
F.2d 566, 572; see U.S. v. Collins (5th Cir. 1972) 472 F.2d 1017,
1018.) Paid informers present special reliability concerns not
present here. Moreover, federal courts have held that the
“addict-informer” jury instruction is not required if the witness
has been cross-examined about the addiction or if another
cautionary instruction has been given. (U.S. v. Vgeri (9th Cir.
1995) 51 F.3d 876, 881.)
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Opinion of the Court by Corrigan, J.
b. Lesser-included Offense of Firearm
Discharge
Defendant was charged with the felony of maliciously and
willfully discharging a firearm at an occupied vehicle (§ 246)
when he shot at truck driver Daniel Perry. A related statute,
section 246.3, subdivision (a), makes it a public offense to
“willfully discharge[] a firearm in a grossly negligent manner
which could result in injury or death to a person.” The only
difference between the two crimes is that the charged offense
“requires that an inhabited dwelling or other specified object be
within the defendant’s firing range.” (People v. Ramirez (2009)
45 Cal.4th 980, 990 (Ramirez).) Section 246.3, subdivision (a) is
a necessarily included lesser offense of section 246. (Ramirez,
at p. 990.)
“ ‘[A] trial court must give “ ‘ “instructions on lesser
included offenses when the evidence raises a question as to
whether all of the elements of the charged offense were present
[citation], but not when there is no evidence that the offense was
less than that charged.” ’ ” [Citation.] “As our prior decisions
explain, the existence of ‘any evidence, no matter how weak’ will
not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury. [Citations.] ‘Substantial evidence’ in
this context is ‘ “evidence from which a jury composed of
reasonable [persons] could . . . conclude[]” ’ that the lesser
offense, but not the greater, was committed.” [Citation.]’
[Citation.]” (People v. Sattiewhite (2014) 59 Cal.4th 446, 477.)
The People contend defendant invited any error. The trial
court asked whether additional instructions were needed on
lesser offenses; defense counsel agreed they were not. The
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Opinion of the Court by Corrigan, J.
invited error doctrine bars an appellate challenge to the absence
of a lesser included offense instruction if the defendant, for
tactical reasons, persuaded the trial court to forgo giving the
instruction. (People v. Beames (2007) 40 Cal.4th 907, 927-928;
People v. Horning (2004) 34 Cal.4th 871, 905.) However, the
doctrine does not apply if defendant merely acquiesced in the
absence of an instruction. (People v. Avalos (1984) 37 Cal.3d
216, 229.) “The record must reflect that counsel had a deliberate
tactical purpose.” (Ibid.; accord Moon, supra, 37 Cal.4th at
p. 28.) Because the record here reveals no such purpose, nor
indeed any discussion of a specific instruction, the doctrine does
not apply.
The People also argue there is no substantial evidence
defendant committed only the lesser offense. “The crime of
shooting at an occupied vehicle ‘is not limited to shooting
directly at [the] occupied target.’ (People v. Overman (2005) 126
Cal.App.4th 1344, 1355-1356.) Rather, the applicable statute
‘proscribes shooting either directly at or in close proximity to an
. . . occupied target under circumstances showing a conscious
disregard for the probability that one or more bullets will strike
the target or persons in or around it.’ ” (People v. Phung (2018)
25 Cal.App.5th 741, 761.) Thus, to find defendant guilty of
section 246.3, subdivision (a) but not section 246, the jury would
have had to find that defendant’s shots were not aimed at or “ ‘in
close proximity to’ ” Perry’s truck. (Phung, at p. 761; see
Ramirez, supra, 45 Cal.4th at p. 990.)
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Opinion of the Court by Corrigan, J.
Two witnesses described the shooting.16 Perry testified
that he saw someone emerge from the Quik Stop and heard two
shots. The shooter was running toward his truck. Perry later
found a dent in his passenger door, which suggested the vehicle
had been hit. Perry thought the shots were directed at him but
never said he saw the shooter aim at his truck. Tory, however,
testified that he saw defendant shoot at Perry. According to
Tory, defendant also said he “shot at the trucker” because
defendant wanted to leave no witnesses. Defendant argues the
jury could have disregarded Tory’s testimony because he “had
significant credibility problems.” Even so, the record includes
no evidence that defendant fired aimlessly or into the air.
“ ‘Speculation is an insufficient basis upon which to require the
giving of an instruction on a lesser offense.’ ” (People v. Rogers
(2009) 46 Cal.4th 1136, 1169.) There was no substantial
evidence that defendant was guilty only of a grossly negligent
firearm discharge. The court had no sua sponte duty to instruct
on this lesser offense. (See People v. Huggins (2006) 38 Cal.4th
175, 215-217 (Huggins).)
Instructions on lesser included offenses are not
constitutionally required in a noncapital case. (People v.
Breverman (1998) 19 Cal.4th 142, 165.) Nevertheless,
defendant contends the court’s failure to instruct on
section 246.3, subdivision (a) violated due process and denied
him a reliable penalty determination. He argues that, in a
capital case, due process requires instructions on all lesser
included offenses supported by the evidence. (See Beck v.
16
The jury may also have heard gunshots in the store’s
surveillance video, but the sound would not have disclosed
where the shots were aimed.
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Opinion of the Court by Corrigan, J.
Alabama (1980) 447 U.S. 625, 637-638.) The constitutional
concerns in Beck v. Alabama are not implicated when, as here,
substantial evidence does not support an instruction. (People v.
Romero (2008) 44 Cal.4th 386, 404 (Romero).) Moreover,
defendant’s federal authorities discuss the importance of
instructing on lesser noncapital offenses that are necessarily
included within a capital charge. (See Beck, at pp. 634-637.)
Here, defendant’s claim centers on a lesser offense to an
auxiliary charge that is entirely separate from his first degree
murder conviction.
5. Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct
by trivializing the reasonable doubt standard during the guilt
phase closing argument. The claim fails.
Before closing arguments, the jury heard numerous
instructions including one defining reasonable doubt (CALJIC
No. 2.90). Referring back to this instruction, the prosecutor
made the following statements in his rebuttal argument: “You
have got an instruction about reasonable doubt. . . . Reasonable
doubt is not all possible doubt. It has to be based on reason. [¶]
If I take this quarter and flip it in the air over a hard surface,
it’s possible it could land on heads or it’s possible it could land
on tails. It’s reasonable either way. It’s reasonable because it’s
based on physics, logic and reason. [¶] But if I flip this coin up
in the air and expected it to land smack dab on its side and stay
standing still, is it possible? Sure, it’s possible. Anything is
possible, but is it reasonable?” The court overruled defendant’s
objection that this argument misstated the reasonable doubt
standard.
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Opinion of the Court by Corrigan, J.
“As we have often explained, ‘it is improper for the
prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its prima
facie obligation to overcome reasonable doubt on all elements
[citation].’ (People v. Marshall (1996) 13 Cal.4th 799, 831.)
Improper comments violate the federal Constitution when they
constitute a pattern of conduct so egregious that it infects the
trial with such unfairness as to make the conviction a denial of
due process. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Improper comments falling short of this test nevertheless
constitute misconduct under state law if they involve use of
deceptive or reprehensible methods to attempt to persuade
either the court or the jury. (Ibid.) To establish misconduct,
defendant need not show that the prosecutor acted in bad faith.
(Id. at p. 822.)” (People v. Cortez (2016) 63 Cal.4th 101, 130
(Cortez).) However, “[w]hen attacking the prosecutor’s remarks
to the jury, the defendant must show that, ‘[i]n the context of
the whole argument and the instructions’ [citation], there was ‘a
reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’ ”
(People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
“The case law is replete with innovative but ill-fated
attempts to explain the reasonable doubt standard.” (Centeno,
supra, 60 Cal.4th at p. 667.) We have generally discouraged
prosecutors from using colorful analogies or displays on this
topic. (Ibid.)
The prosecutor’s coin-toss analogy here was somewhat
problematic because it is commonly linked to the concept of
probability and 50-50 odds. Prosecutors should avoid drawing
comparisons that risk confusing or trivializing the reasonable
doubt standard. Nevertheless, it is not reasonably likely the
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Opinion of the Court by Corrigan, J.
jury would have misunderstood the prosecutor’s argument as
suggesting they could decide the case by flipping a coin. This
court does not “ ‘ “lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (Brown, supra, 31
Cal.4th at pp. 553-554.)
Here, the prosecutor was attempting to explain the
meaning of “reasonable.” The jury had been properly instructed
on the reasonable doubt standard, and the prosecutor’s
argument specifically brought their attention to this instruction.
(See Cortez, supra, 63 Cal.4th at pp. 131-132.) In contrast to
some other cases, the prosecutor here did not attempt to
quantify reasonable doubt or analogize it to everyday decisions
like whether to change lanes in traffic. (See People v. Nguyen
(1995) 40 Cal.App.4th 28, 35-36.) He gave jurors an example of
a possible or imaginary, but unlikely, occurrence. The statute
defining the burden of proof expressly states that a “reasonable”
doubt is not a mere “ ‘possible’ ” or “ ‘imaginary’ ” doubt. (§ 1096;
see Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor’s
argument did not undermine this standard. (See Romero,
supra, 44 Cal.4th at p. 416.)
C. Penalty Phase Issues
1. Claims Related to Defendant’s Courtroom
Outburst and Fight with Deputies
Defendant raises several claims related to events after his
courtroom outburst during the penalty phase. (See ante, at
p. 12.) To recap: Defendant became upset when his mother
cried while leaving the stand. Defense counsel asked for a
recess, and the jurors left the courtroom. Defendant began
banging on counsel table with both hands, making noises, and
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Opinion of the Court by Corrigan, J.
trying to lift the table. Courtroom deputies surrounded him and
a scuffle ensued. During this time, the judge retreated to his
chambers. It ultimately took nine deputies three to five minutes
to subdue defendant, and some deputies were injured. The
judge later described the incident as the most serious courtroom
disturbance he had seen in 17 years on the bench. After
defendant was removed, the court and counsel discussed
potential security measures (see post, at pp. 68-70) and jury
instructions.
a. Defendant’s Absence from Later
Proceedings
i. Background
The next day, a Friday, defendant came to court in a
wheelchair, wearing jail clothes, and reporting severe pain in
his back and legs. Defense counsel believed the pain would
prevent him from participating in trial that day. Counsel faced
a dilemma, however, because witnesses had traveled to court to
testify for the defense. After defendant and his attorney
conferred, defense counsel reported: “Mr. Bell does not want to
be here today. He wants to go back to his cell. . . . He
understands that there will be testimony. He’s willing to not be
here. I told him what the testimony would be. [¶] I believe that
his presence will not be required for me to effectively present the
testimony that I’m going to be presenting and any redirect or
any other things I have to do today in court. [¶] I think Mr.
Bell’s physical condition is such that he’s going to be in pain,
probably making some noise from having pain, moving around,
which would distract me and disrupt the courtroom. Therefore,
I think the Court can make a finding . . . under the case law that
he can be excluded for that reason. [¶] I would be willing to
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waive any other irregularities that the Court feels would be
appropriate.”
The court and prosecutor expressed concern that it would
be error to proceed in defendant’s absence. The court observed
it could have excluded defendant from court the previous day,
based on his behavior, and then asked defense counsel, “are you
saying things might get disrupted again today . . . ?” Defense
counsel confirmed that if the court did not grant defendant’s
wish to be excused from trial that day, there was “a strong
possibility of further disruption.” Based on defendant’s express
desire to be excused, his choice to wear jail clothing to court, his
exceptional outburst the previous day, and his attorney’s
prediction of further disruption, the court found grounds to
excuse defendant for the day. The court then suggested that the
case could be continued to the following Monday. Defendant
initially agreed with that suggestion, but the scheduling was
problematic for his expert witness, Nell Riley. After again
conferring with counsel, defendant expressly waived his right to
be present. He said he understood two psychologists and two
character witnesses would be testifying that day and specifically
affirmed that he did not object to their testifying in his absence.
Immediately after defendant was excused from the
courtroom, the court and counsel discussed a note from the jury
about defendant’s violent behavior the previous day. (See post,
at pp. 63-65.) The court questioned jurors about the note. In
this discussion, the court noted defendant’s absence and told the
jury they could not consider it in deciding the case. Defense
counsel then presented testimony from expert Nell Riley,
defendant’s brother Scheron Bell, and defendant’s ex-girlfriend
L.O. After a break in Riley’s testimony, the court admonished
the jury again not to speculate about defendant’s absence “or
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consider that in any way in making [its] decision.” After the jury
was excused for the day, the court and counsel discussed jury
instructions and evidentiary issues.
Defendant returned to court on Monday, walking without
assistance and wearing a suit. He reported that he felt “fine.”
The court asked if defendant was going to be disruptive, and
defense counsel responded he was no longer concerned about
disruptions because defendant was feeling better. The court
stressed that defendant had not been excused solely because he
reported being in pain. The court told counsel: “I didn’t get that
from what you said on Friday, that his disruptive behavior
would only be because of the pain. . . . I was prepared to put the
case over [until] Monday to see if he felt better. [¶] You didn’t
want to put the case over because you had your witnesses here
and then you talked to Mr. Bell again, and . . . my interpretation
of what you were saying is that, while he might be disruptive
because of his pain, he might also be disruptive because I wasn’t
going to let him go back to his jail cell. [¶] I don’t want anything
in the record here to indicate that we excluded him from trial
against his will or just because he was in some pain after that
incident on Thursday. I mean, if that’s the case, you can call
your witnesses back here and we will put them on again . . . .”
Defense counsel did not ask to recall his witnesses. Instead, he
responded: “Your Honor, I think that it’s clear from the record
that was taken on Friday that Mr. Bell did not want to be here,
that . . . — yes, I probably indicated that the disruption could
have come from two sources. I am not now trying to backpedal
on what I said on Friday.”
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ii. Discussion
Defendant now contends his absence from trial violated
his rights to due process and confrontation under the state and
federal constitutions and also violated state statutory law.
Defendant waived his constitutional rights and any statutory
error was harmless.
A criminal defendant accused of a felony has the
constitutional right to be present at every critical stage of the
trial, including during the taking of evidence. (Illinois v. Allen
(1970) 397 U.S. 337, 338 (Allen); People v. Rundle (2008) 43
Cal.4th 76, 133 (Rundle); People v. Jackson (1996) 13 Cal.4th
1164, 1209 (Jackson).) “ ‘A competent defendant may waive that
right, however. [Citation.] Neither the constitutional right to
confrontation nor the right to due process precludes waiver of a
defendant’s right to be present at a critical stage of a capital
trial. [Citation.]’ ” (Romero, supra, 44 Cal.4th at p. 418; People
v. Weaver (2001) 26 Cal.4th 876, 966 (Weaver).) The waiver
must, of course, be knowing, intelligent, and voluntary. (See
Moon, supra, 37 Cal.4th at p. 21.)
Defendant clearly and expressly waived his right to be
present during Friday’s proceedings. Nevertheless, he now
asserts his waiver was not voluntary because he was offered no
meaningful alternatives. The record belies this claim. The court
offered to continue the trial until Monday, when defendant
would presumably feel well enough to attend, but defendant’s
expert witness was not available that day. Defendant now
faults the court for failing to offer a longer continuance, but he
did not seek one below. On the contrary, defendant’s attorney
repeatedly said he was ready to proceed with the witnesses
whose presence he had secured for that day, including an expert
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neuropsychologist who had traveled to court at some expense.
Although defendant was initially agreeable when the court
suggested delaying the trial until Monday, he changed his mind
after conferring with counsel. After this conference, defendant
expressly affirmed that he wanted to return to his cell and for
trial to proceed that day in his absence.
We found a waiver voluntary under similar facts in
Jackson, supra, 13 Cal.4th 1164. There, the defendant came to
court with a black eye. When the court refused to grant a
continuance, the defendant expressed a preference to be absent
that day. (Id. at p. 1209.) He was advised of his right to be
present, told of the prosecution witnesses who would be
testifying, and reminded he was eligible for the death penalty.
(Ibid.) There, as here, the defendant made it clear he wished to
be absent. (Ibid.) We found “no constitutional infirmity . . . with
the defendant’s voluntary waiver of his right to be present on a
single day of the trial.” (Id. at p. 1210.) The same conclusion
obtains here. To the extent defendant faced a difficult choice,
the problem was of his own making. His suit was badly rumpled
and he was in pain following the fight he had precipitated with
courtroom deputies. Although his behavior was subdued the
next morning, he did not want to remain in court for the trial,
even though witnesses his lawyer had brought to court would be
testifying on his behalf. After consulting with counsel, he
expressly waived his right to be present. Because the record
confirms this waiver was knowing and voluntary, his absence
from trial was not constitutional error. (See Moon, supra, 37
Cal.4th at pp. 20-21; Weaver, supra, 26 Cal.4th at pp. 966-967.)
The defense also urges statutory error. Section 977,
subdivision (b)(1) states that in all felony cases, “the accused
shall be personally present . . . during those portions of the trial
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when evidence is taken before the trier of fact,” unless he has
executed a written waiver of that right in open court.
Section 1043 generally provides that a felony defendant must be
personally present at trial except that a defendant’s absence will
not prevent trial from continuing to verdict in: “(b) . . . [¶]
(1) [a]ny case in which the defendant, after he has been warned
by the judge that he will be removed if he continues his
disruptive behavior, nevertheless insists on conducting himself
in a manner so disorderly, disruptive, and disrespectful of the
court that the trial cannot be carried on with him in the
courtroom[, or] [¶] (2) [a]ny prosecution for an offense which is
not punishable by death in which the defendant is voluntarily
absent.”
“Thus, when read together, sections 977 and 1043 permit
a capital defendant to be absent from the courtroom only on two
occasions: (1) when he has been removed by the court for
disruptive behavior under section 1043, subdivision (b)(1), and
(2) when he voluntarily waives his rights pursuant to section
977, subdivision (b)(1). However, section 977, subdivision (b)(1),
the subdivision that authorizes waiver for felony defendants,
expressly provides for situations in which the defendant cannot
waive his right to be present, including during the taking of
evidence before the trier of fact. Section 1043,
subdivision (b)(2), further makes clear that its broad ‘voluntary’
exception to the requirement that felony defendants be present
at trial does not apply to capital defendants.” (Jackson, supra,
13 Cal.4th at p. 1210.) This means that, under state law, “a
capital defendant may not voluntarily waive his right to be
present during . . . portions of the trial in which evidence is
taken, and . . . may not be removed from the courtroom unless
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he has been disruptive or threatens to be disruptive.” (Id. at
p. 1211.)
The People concede defendant could not waive his
statutory rights but suggest the removal was appropriate
because defendant was potentially disruptive. We generally
defer to the trial court’s determination as to when a disruption
has occurred or is likely to occur. (See People v. Welch (1999) 20
Cal.4th 701, 774 (Welch); Jackson, supra, 13 Cal.4th at p. 1211.)
Defendant’s violent and prolonged outburst the previous
afternoon had clearly disrupted the trial. Although he was not
actively disruptive on Friday morning, his arrival in a
wheelchair and jail clothes presented other difficulties.
Generally, a defendant has the right not to appear at trial in jail
clothing. (People v. Bradford (1997) 15 Cal.4th 1229, 1362.)
More importantly, defense counsel represented that there was
“a strong possibility” defendant would once again disrupt the
proceedings. He was upset, in pain, and did not want to be in
court. Although counsel’s later comments focused on potentially
distracting noises and movements defendant might make, he
did not exclude the possibility of another violent disruption if
defendant were forced to remain in court against his wishes.
Combined with the severity of defendant’s outburst the day
before, counsel’s explanation of defendant’s physical and mental
state and unwillingness to attend court provided substantial
support for the court’s conclusion that defendant would be
disruptive if compelled to be present. (See Welch, at p. 774.)
Counsel’s comments also essentially conceded defendant was
not prepared to “reclaim” his right to be present by acting with
appropriate decorum. (See § 1093, subd. (c); People v. Banks
(2014) 59 Cal.4th 1113, 1180 (Banks).)
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Even assuming the court erred in allowing defendant to
absent himself, the error was purely statutory. (Weaver, supra,
26 Cal.4th at p. 968; Jackson, supra, 13 Cal.4th at p. 1211.)
Reversal is required only if it is reasonably probable defendant
would have obtained a more favorable result absent the error.
(See People v. Watson (1956) 46 Cal.2d 818, 836.) Any error in
excusing defendant from the day’s proceedings was clearly
harmless. Defense counsel was well prepared to present the
testimony of his witnesses. Defendant’s absence occurred
during his own case, not that of the prosecution. Defendant was
aware of what his witnesses would say. In addition, the court
offered the defense an opportunity to recall the witnesses to
testify in defendant’s presence, and the defense declined the
offer.
The court also repeatedly and appropriately instructed the
jury not to consider defendant’s absence in deciding the case.
Defendant now complains the jury might have drawn the
damaging inference that he was absent because he had
continued to engage in physically dangerous or threatening
behavior, but he could have cured any potential harm by
requesting a specific instruction. He did not do so. Indeed,
lengthy or detailed admonitions may have risked drawing
greater attention to defendant’s absence. Moreover, some jurors
were apparently unsettled by defendant’s courtroom outburst.
(See post, at pp. 63-65.) His absence the following day, “and the
concomitant inability of the jury to observe him” in a wheelchair
and jail clothing, “may actually have helped him.” (Weaver,
supra, 26 Cal.4th at p. 968.) Of course, a negative inference was
also possible, but defendant offers nothing beyond speculation
to suggest he was so prejudiced. The speculative nature of any
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possible harm precludes a finding that the penalty phase verdict
was affected. (Ibid.)
Finally, to the extent defendant’s complaint encompasses
his absence on Thursday, immediately after his courtroom
outburst, there was no statutory or constitutional error. Under
the federal and state constitutions, “a defendant can lose his
right to be present at trial if, after he has been warned by the
judge that he will be removed if he continues his disruptive
behavior, he nevertheless insists on conducting himself in a
manner so disorderly, disruptive, and disrespectful of the court
that his trial cannot be carried on with him in the courtroom.”
(Allen, supra, 397 U.S. at p. 343; see Banks, supra, 59 Cal.4th at
p. 1180.) Similarly, section 1043 “provides that an unduly
disruptive defendant, after being warned, may be removed from
the courtroom until he ‘reclaims’ his right to be present by
expressing his willingness to conduct himself properly. (See id.,
subds. (b)(1) & (c).)” (People v. Medina (1995) 11 Cal.4th 694,
738.)
It was within the trial court’s discretion to conclude
defendant’s violent physical outburst necessitated his removal
from court and absence for the remainder of the afternoon’s
proceedings. (See Welch, supra, 20 Cal.4th at p. 774.)
Defendant had to be restrained by nine deputies after a violent
outburst the trial judge described as the most serious he had
seen in 17 years on the bench. Nor was this defendant’s first
courtroom disruption. We have noted defendant’s expression of
displeasure at the court’s ruling on his discovery requests.
(Ante, at p. 27, fn. 13.) Again, two weeks before the courtroom
melee, defendant interrupted the testimony of prosecution
witness Nick Lauderbaugh with profanities and accusations of
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lying.17 After being cautioned that such outbursts could hurt
him if the case reached a penalty phase, defendant apologized
for his behavior. He was therefore on notice that courtroom
disruptions were inappropriate and not to be tolerated.
Although the record includes no evidence of an express warning,
one was not required under the circumstances here. “Some
misconduct, such as a violent assault in court, is so dangerous
as to justify a defendant’s removal even without a prior warning.
[Citations.] Because ‘dignity, order, and decorum’ are essential
to the administration of criminal justice, a trial court ‘must be
given sufficient discretion to meet the circumstances of each
case.’ (Allen, [supra, 397 U.S.] at p. 343.)” (People v. Johnson
(2018) 6 Cal.5th 541, 557, italics added.) Defendant’s statutory
and constitutional claims also fail because he did not “reclaim”
his right to be present Thursday afternoon by informing the
court he wished to be readmitted to the courtroom and was
willing to behave appropriately. (See Banks, supra, 59 Cal.4th
at p. 1181.)
Finally, the proceedings defendant missed on Thursday
afternoon were not critical. “A critical stage of the trial is one in
which a defendant’s ‘ “absence might frustrate the fairness of
the proceedings” [citation], or “whenever his presence has a
relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge” [citation].’ ” (Rundle,
supra, 43 Cal.4th at p. 133.) Defendant’s outburst occurred
17
When Lauderbaugh began answering a question about
what defendant had said about the Quik Stop robbery,
defendant interrupted, “Lying fool.” Defense counsel
immediately requested a break. The court agreed, and as it told
jurors they were free to go outside, defendant said, “— shit. He’s
lying.” The court observed, “Mr. Bell, you’re not helping.”
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after the testimony of the last witness of the day, and the jury
was sent home immediately afterward. In defendant’s absence,
the court and counsel described for the record what had
happened and discussed various security options with the
courtroom bailiffs. After touching on some evidentiary matters,
they resumed a discussion about jury instructions. These
proceedings consumed one hour, after which court recessed for
the day. “[A] defendant may ordinarily be excluded from
conferences on questions of law, even if those questions are
critical to the outcome of the case, because the defendant’s
presence would not contribute to the fairness of the proceeding.”
(People v. Concepcion (2008) 45 Cal.4th 77, 82, fn. 6.) A criminal
defendant has no constitutional right to be present when the
court and counsel discuss questions of law, including discussions
on jury instructions. (People v. Morris (1991) 53 Cal.3d 152,
210.)
b. Potential Jury Bias Resulting from
Outburst
Defendant next claims the court failed to take appropriate
steps to ensure the jury was not biased against him as a result
of the incident. He also contends the court erred in denying his
motion for mistrial. The court’s voir dire and admonitions were
adequate, and its mistrial ruling was not an abuse of discretion.
i. Background
The morning after defendant’s courtroom outburst, the
jury foreperson sent out a note, which stated: “ ‘To whom it may
concern: We the jury are concerned with walking past the
Defendant while he is not restrained. Yesterday’s event could
have caused injury to some jurors that were rushed into the jury
room during the incident.’ ” The court observed that jurors were
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not in the courtroom during the disruption but might have heard
it. At defense counsel’s suggestion, the court called for the jury
as a group, noting that individual questioning could be reserved
for any juror who indicated concern about the ability to remain
fair and impartial.
In response to the court’s questions, the jury foreperson
confirmed that jurors could hear the incident from the jury
room. The note was based on their experience of the incident
and not from a newspaper article or media report.18 The court
admonished jurors not to speculate about what might have
happened in the courtroom, although they could consider
testimony about the incident if it was presented. The court then
stated, “I want to make sure that because of what happened
yesterday no one is feeling biased or prejudiced in the case at
this point in time and feels they could not make a fair decision
based on the evidence.” It invited any juror having such
thoughts to alert the court by note or otherwise. A juror
explained that they had sent the note because some of the jurors
had been “shov[ed] and pushe[d]” into the jury room when the
incident began. The court responded that when defendant
returned, the court would “work it logistically so there won’t be
a problem with you — take care of any fears you might have.”
At defense counsel’s request, the court asked if there had been
any discussion of the incident in the jury room. The jurors
confirmed that the only discussion concerned getting everyone
in the room and locking the door. They did not discuss the facts
of the case. The court then repeated, “If anyone does feel that
18
Defendant’s outburst was reported in a local newspaper,
although the article inaccurately suggested the jury was in the
courtroom at the time.
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something is bothering them about [the incident] or feel they
couldn’t be fair and impartial, please let us know, write a note
or something like that.”
At counsel’s urging, the court again asked if jurors had
discussed “the incident that was going on in the courtroom.” The
foreperson said that although they could hear “screaming and
yelling” from the courtroom, the jurors discussed only the
experience of being pushed into the jury room and how they
wanted to ensure their safety walking past defendant in the
future. Defense counsel declined the court’s invitation to
question the jury further. No other communication was received
from the jury on this topic.
Defendant moved for a mistrial. His attorney expressed
concern that jurors had discussed defendant’s personality or
said they were afraid of him. The court observed that, if jurors
were afraid, defendant had “brought that on himself.” It denied
the motion. Although defendant might seek a new trial if he
obtained evidence that the incident tainted the jury, the court
found no basis for a mistrial at that time given the jurors’
responses. The court invited defense counsel to propose a
special jury instruction on the issue if he felt one was necessary.
ii. Voir Dire of Jury and Instructions
Defendant argues the court did not conduct an adequate
inquiry into the prejudicial effect of his courtroom outburst. He
forfeited this claim by not asking for additional questioning.
(See People v. Holloway (2004) 33 Cal.4th 96, 126.) The court
specifically invited defense counsel to question the jury further
about potential bias, and he declined.
The claim also fails on the merits. In general, the “court
must conduct a sufficient inquiry to determine facts alleged as
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juror misconduct ‘whenever the court is put on notice that good
cause to discharge a juror may exist.’ (People v. Burgener (1986)
41 Cal.3d 505, 519.)” (People v. Davis (1995) 10 Cal.4th 463,
547; see People v. Martinez (2010) 47 Cal.4th 911, 942.) Not
every incident warrants investigation, however. (People v.
Cleveland (2001) 25 Cal.4th 466, 478.) The decision whether,
and to what extent, investigation into possible juror bias is
required “ ‘rests within the sound discretion of the trial court.’ ”
(Ibid.; see People v. Maury (2003) 30 Cal.4th 342, 434.) Here,
the record demonstrates adequate inquiry. The court
questioned jurors about their conversations, ensuring they did
not discuss the facts of the case. The court expressed its concern
that jurors remain unbiased because of the incident and invited
jurors to notify the court privately if they had any such
inclinations. Defendant’s speculation that jurors failed to
disclose personal fears or bias has no basis in the record. Such
speculation does not support a duty to inquire further. (See
People v. Williams (1997) 16 Cal.4th 153, 231; Davis, at
p. 548.)19
Defendant also faults the court for failing to instruct
jurors to disregard their personal experiences of the outburst.
The court admonished the jury not to speculate about what
happened in the courtroom, although it could consider evidence
about the incident that might be presented. If defendant
believed any further instruction was necessary, he was obliged
19
At oral argument here, defendant’s attorney argued the
trial court should have separately questioned each juror about
the incident. However, such focused questioning would have
drawn further attention to the event and might have amplified
its significance. For strategic reasons, defendant’s trial counsel
may have preferred to avoid this risk.
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to request it. (See People v. Lee (2011) 51 Cal.4th 620, 638.)
Defendant’s failure to propose an instruction, even after the
court invited him to do so, forfeits his claim of error. (See People
v. Clark (2011) 52 Cal.4th 856, 942; People v. Ledesma (2006) 39
Cal.4th 641, 697-698 (Ledesma).) Moreover, it is far from clear
that jurors were required to ignore their personal experience of
defendant’s courtroom outburst. (See post, at pp. 67-68; People
v. Williams (1988) 44 Cal.3d 1127, 1156.) The absence of an
instruction to this effect was not error.
iii. Motion for Mistrial
Defendant asserts the court erred in denying his motion
for a mistrial. In general, “a motion for mistrial should be
granted only when ‘ “a party’s chances of receiving a fair trial
have been irreparably damaged.” ’ ” (People v. Ayala (2000) 23
Cal.4th 225, 282.) “We review a ruling on a mistrial motion for
an abuse of discretion. [Citations.] A trial court should declare
a mistrial only ‘ “if the court is apprised of prejudice that it
judges incurable by admonition or instruction.” ’ [Citations.] ‘In
making this assessment of incurable prejudice, a trial court has
considerable discretion.’ ” (People v. Lewis (2008) 43 Cal.4th
415, 501.)
The court properly refused to grant a mistrial.
Defendant’s motion was based on a concern that jurors were
afraid of him, or had concluded he was a violent person, because
of his courtroom outburst. However, we have long held that “a
defendant may not be heard to complain when, as here, such
prejudice as he may have suffered resulted from his own
voluntary act.” (People v. Hendricks (1988) 44 Cal.3d 635, 643.)
In People v. Williams, supra, 44 Cal.3d at page 1156, we
explained that, while it is misconduct for jurors to obtain
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evidence from outside the court, “[i]t is not clear . . . that such a
rule applies to the jurors’ perceptions of the defendant,
particularly when the defendant engages in disruptive or
otherwise improper conduct in court. As a matter of policy, a
defendant is not permitted to profit from his own misconduct.”
(Italics added; see also People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1030 (Lewis and Oliver); People v. Arias (1996) 13
Cal.4th 92, 148.) Denial of mistrial motions based on the
defendant’s own courtroom misbehavior have been repeatedly
upheld. (See, e.g., Lewis and Oliver, at pp. 1030-1031; Huggins,
supra, 38 Cal.4th at p. 201.) So too here. As the trial court
observed, any fear or prejudice the jurors felt as a result of
defendant’s courtroom outburst was a problem of his own
making. A criminal defendant “ ‘should not be permitted to
disrupt courtroom proceedings without justification [citation]
and then urge that same disruption as grounds for a mistrial.’ ”
(Lewis and Oliver, at p. 1030.)
c. Physical Restraints
After defendant’s outburst, the court ordered him
physically restrained. While not contesting this decision itself,
defendant argues the court improperly deferred to security
personnel regarding the type of restraints to employ and
improperly imposed two visible forms of restraint. He also
contends the court erred by not instructing the jury to disregard
the restraints. To the extent defendant’s claims are not
forfeited, they lack merit.
i. Background
Shortly after defendant’s outburst, the court discussed
potential security measures with the courtroom bailiffs and
counsel. The court expressed concern for the safety of court staff
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and counsel and found “ample grounds” to impose restraints.
The bailiffs recommended placing defendant in full chains and
seating him next to a deputy armed with a Taser. A third option
was to place him in a REACT stun belt. Defense counsel agreed
that “something is in order.” Although doubtful about the need
for full chains, counsel assured the court he was “not going to
object to some kind of restraint.” The court then stated it was
inclined to order “whatever [security measure] the bailiffs feel is
appropriate . . . because I am not a security person . . . [and] I
don’t want my people getting hurt.” When defense counsel
expressed concern that full chains would be visible to the jury,
the court urged him to talk with the bailiffs off the record. The
court observed the bailiffs had “been dealing with Bell from a
security standpoint . . . for a few weeks” and had developed “a
good sense” of his agitation level.
Defendant came to court in a wheelchair the next day,
restrained with chains and wearing a stun belt. He left before
the jury was called in. When he returned to court the following
Monday, he was out of the wheelchair and wearing a suit but
was still restrained with chains and the stun belt. The court
concluded restraints were needed because of the violence of
defendant’s outburst. “I can’t restrain him just because . . .
somebody in the jail or something thinks he should be, but there
has to be a reason for it. There certainly was a reason for it on
Friday, and I am going to continue to think that there is a reason
for it unless someone tells me differently. [¶] But based on what
happened Thursday afternoon, he was a danger to the entire
courtroom and the staff and the deputies. And so several
deputies were bruised and clearly in some pain. So it was
necessary for the safety of the entire courtroom, in my opinion,
to restrain him on Friday. That’s also after consulting the bailiff
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and the deputies and security because of what happened [on]
Thursday.”
Before the jury entered the courtroom, the court asked if
defendant wanted an instruction telling jurors not to consider
the restraints. Defense counsel expressed doubt that the jury
could see the restraints, but the court observed that it could see
a handcuff and a bulge from the belt. The court explained,
“There is legal authority to give that kind of an instruction, but
there is also authority” supporting the absence of an instruction
if “you don’t want it brought to the jurors’ attention.” Defense
counsel responded, “I don’t think I want to draw their attention
to it right now. If I think it’s a problem, I will ask for it.” The
court suggested an instruction about restraints might be
advisable because jurors had expressed concern for their safety.
However, defense counsel ultimately decided to forgo an
instruction “at this point,” noting that if jurors “raise[d] the
issue, which they might,” it could be addressed at that time.
ii. Discussion
“In general, the ‘court has broad power to maintain
courtroom security and orderly proceedings’ (People v. Hayes
(1999) 21 Cal.4th 1211, 1269), and its decisions on these matters
are reviewed for abuse of discretion. (People v. Stevens (2009)
47 Cal.4th 625, 633.) However, the court’s discretion to impose
physical restraints is constrained by constitutional principles.
Under California law, ‘a defendant cannot be subjected to
physical restraints of any kind in the courtroom while in the
jury’s presence, unless there is a showing of a manifest need for
such restraints.’ (People v. Duran (1976) 16 Cal.3d 282, 290-
291.) Similarly, the federal ‘Constitution forbids the use of
visible shackles . . . unless that use is “justified by an essential
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state interest”—such as the interest in courtroom security—
specific to the defendant on trial.’ (Deck v. Missouri (2005) 544
U.S. 622, 624, italics omitted.) We have held that these
principles also apply to the use of an electronic ‘stun belt,’ even
if this device is not visible to the jury. (People v. Mar (2002) 28
Cal.4th 1201, 1219.)” (People v. Lomax (2010) 49 Cal.4th 530,
558-559 (Lomax).)
Defendant did not object to being restrained. His attorney
expressly agreed with the court that “some kind of restraint”
was appropriate, although he preferred it be invisible to jurors.
Accordingly, defendant “has forfeited his claim to the extent he
contends he should not have been restrained at all, or that the
stun belt was an inappropriate form of restraint.” (Foster,
supra, 50 Cal.4th at p. 1321; see People v. Manibusan (2013) 58
Cal.4th 40, 85.)
Furthermore, the record belies defendant’s claim that the
court improperly deferred to security personnel in deciding to
impose the restraints. It is true that a trial court abuses its
discretion if it delegates this decision to law enforcement
officers. (Ervine, supra, 47 Cal.4th at p. 773; People v. Hill,
supra, 17 Cal.4th at p. 841.) However, “[t]he court here was
clearly aware of its obligation to make its own determination on
the need for restraints, and not simply defer to the wishes of the
prosecutor or courtroom security personnel.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 391; see People v.
Simon (2016) 1 Cal.5th 98, 117.) Although the court solicited
opinions from security staff about the best type of restraints to
use, given their experience handling defendant and his unusual
size and strength, it recognized that the decision to impose
restraints could not be based simply on what “somebody in the
jail” said. Thus, the court explained that, in its opinion,
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restraints were needed to protect the safety of everyone in the
courtroom from another violent outburst by defendant. The
court’s finding of manifest need is amply supported by the
record, which includes escalating instances of defendant’s
misconduct. The decision to restrain defendant was well within
the court’s discretion. (See, e.g., Lomax, supra, 49 Cal.4th at
p. 562.) To the extent defendant complains the court failed to
consider the “harmful psychological effects” of wearing a stun
belt (see People v. Mar, supra, 28 Cal.4th at pp. 1225-1230), our
discussion of this topic in Mar was offered for guidance “in future
trials” (id. at p. 1225, italics added). Because defendant’s trial
occurred over three years before we decided Mar, the court
cannot be faulted for failing to consider the potential
psychological consequences identified in that opinion. (See
People v. Covarrubias (2016) 1 Cal.5th 838, 871; Bryant, Smith
and Wheeler, at p. 391; Lomax, at p. 562.)
Defendant also claims the court erred in failing to instruct
the jury to disregard his restraints. He asserts the error was
compounded because, although the jury had previously been
instructed to disregard courtroom security measures, this
instruction was not repeated at the penalty phase and the jury
was directed to disregard guilt phase instructions that were not
repeated. The record does not support defendant’s claim, and
any error was harmless.
The trial court’s obligation to instruct depends on visibility
of the restraints. “In those instances when visible restraints
must be imposed the court shall instruct the jury sua sponte that
such restraints should have no bearing on the determination of
the defendant’s guilt. However, when the restraints are
concealed from the jury’s view, this instruction should not be
given unless requested by defendant since it might invite initial
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attention to the restraints and thus create prejudice which
would otherwise be avoided.” (People v. Duran, supra, 16 Cal.3d
at pp. 291-292 (Duran).) Nothing in the record demonstrates
that defendant’s restraints were visible to the jury. Although
the court observed that it could see a handcuff and the outline
of the belt from its vantage point on the bench, defense counsel
was skeptical that the jury could see the restraints. He
preferred to avoid drawing the jury’s attention to them with an
instruction. Because there is no evidence any juror actually saw
the stun belt or restraints, we cannot say the court erred in
failing to give an instruction against the wishes of defendant’s
attorney. (See Foster, supra, 50 Cal.4th at p. 1322; Ervine,
supra, 47 Cal.4th at p. 773; People v. Livaditis (1992) 2 Cal.4th
759, 775.) “In these circumstances, an instruction may have
achieved the opposite result than was intended by Duran by
calling attention to defendant’s restraints when, otherwise, the
jury would have been unaware of them.” (People v. Lopez (2013)
56 Cal.4th 1028, 1080 (Lopez).)
Moreover, any error in failing to instruct was clearly
harmless. “The purpose of requiring the instruction is to
prevent the jury from inferring that, because a defendant
charged with a violent crime is restrained, he is ‘a violent person
disposed to commit’ the charged crime. (Duran, supra, 16 Cal.3d
at p. 290.) Where, however, as here, a defendant has been
convicted of a special circumstance murder, the rationale
requiring a sua sponte instruction is no longer applicable.”
(Lopez, supra, 56 Cal.4th at p. 1081.) The jury had already
convicted defendant of murdering Simon Francis in the course
of a robbery. Under any standard, its penalty phase verdict
would not have been affected by the absence of an instruction on
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defendant’s restraints. (See ibid.; see also People v. Slaughter
(2002) 27 Cal.4th 1187, 1214.)
d. Ineffective Assistance of Counsel
Defendant argues his attorney rendered constitutionally
ineffective assistance in certain proceedings following the
courtroom outburst. “In order to establish a claim of ineffective
assistance of counsel, defendant bears the burden of
demonstrating, first, that counsel’s performance was deficient
because it ‘fell below an objective standard of reasonableness [¶]
. . . under prevailing professional norms.’ [Citations.] Unless a
defendant establishes the contrary, we shall presume that
‘counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.’ [Citation.] If the
record ‘sheds no light on why counsel acted or failed to act in the
manner challenged,’ an appellate claim of ineffective assistance
of counsel must be rejected ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.’ [Citations.] If a defendant
meets the burden of establishing that counsel’s performance was
deficient, he or she also must show that counsel’s deficiencies
resulted in prejudice, that is, a ‘reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” (Ledesma, supra, 39 Cal.4th at
pp. 745-746; see Strickland v. Washington (1984) 466 U.S. 668,
687-688, 694.) Defendant fails to show that his attorney’s
performance was constitutionally deficient or that the penalty
verdict would have been different absent counsel’s asserted
errors, whether considered individually or cumulatively.
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Defendant first argues his attorney was ineffective for
failing to object to the use of restraints, or at least to the court’s
decision to restrain him with both chains and a stun belt.
However, the violence of defendant’s courtroom outburst, and
the extreme difficulty deputies had in subduing him, made the
legitimacy of ordering these restraints manifest. A decision not
to pursue futile or frivolous motions does not make an attorney
ineffective. (People v. Thompson (2010) 49 Cal.4th 79, 122.)
Counsel wisely conceded the need for increased security
measures and focused his efforts on advocating for the least
visible forms of restraint. Defendant now argues having an
armed deputy stationed behind him would have been preferable
to the stun belt. It is difficult to conclude that such an overt
action would have been preferable to restraints that may not
have actually been seen by jurors. Counsel could well have
concluded this option would emphasize defendant’s perceived
dangerousness. A deputy standing or sitting close to him at all
times, in stark departure from earlier practice, would surely
have been more conspicuous than a slight bulge in defendant’s
clothing from the stun belt. As to the complaint that chains
were used in addition to a belt, it is unclear how defendant could
have been prejudiced by the lack of an objection because the
record does not establish that the jury could see either type of
restraint.
Defendant next complains his attorney did not seek
additional instructions regarding his absence from court the day
after the outburst. The court twice admonished the jury not to
speculate about defendant’s absence or consider it in any way in
reaching a decision. Defendant argues his counsel should have
sought an instruction explaining he was “voluntarily absent
from the courtroom for good cause.” It is unclear what this
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phrase means, and it would likely have been just as opaque to
the jury. Jurors might have mistakenly thought defendant had
been excluded from court for his disruptive behavior. Defense
counsel could reasonably have preferred the admonition that
was given. Any hints about why defendant was not present
risked emphasizing his upsetting behavior the previous day.
Finally, defendant asserts counsel should have objected to
the prosecution’s use of the courtroom outburst as aggravating
evidence under section 190.3, factor (b). Such an objection
would have been futile because defendant’s conduct was
admissible. Section 190.3, factor (b) directs the jury to consider,
at the penalty phase of a capital case, the “presence or absence
of criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied
threat to use force or violence.” Defendant struggled violently
with the nine deputies who tried to subdue him, injuring some
of them in the confrontation. This conduct constituted criminal
assault and battery and manifestly “involved the use or
attempted use of force or violence.” (§ 190.3, factor (b).) Counsel
was not ineffective for failing to raise a futile objection to this
relevant aggravating evidence. (See People v. Thompson, supra,
49 Cal.4th at p. 122.)
2. Victim Impact Evidence
Simon Francis had been married less than two months
when he was murdered. Over defendant’s objection, the court
admitted a redacted videotape of Francis’s wedding during the
penalty phase of trial. The prosecutor played a four-minute
excerpt, which shows Francis having cake, throwing the bride’s
garter, and dancing to the song “Tequila.” Defendant claims the
court abused its discretion in admitting the videotape because it
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was cumulative of other evidence and likely to provoke an
irrational response, especially considered in juxtaposition with
the surveillance video of the crime. The redacted videotape was
properly admitted.
“The federal Constitution bars victim impact evidence
only if it is ‘so unduly prejudicial’ as to render the trial
‘fundamentally unfair.’ ([Payne v. Tennessee (1991) 501 U.S.
808, 825.]) State law is consistent with these principles. Unless
it invites a purely irrational response from the jury, the
devastating effect of a capital crime on loved ones and the
community is relevant and admissible as a circumstance of the
crime under section 190.3, factor (a).” (Lewis and Oliver, supra,
39 Cal.4th at pp. 1056-1057; see People v. Pollock (2004) 32
Cal.4th 1153, 1180.)
Victim impact evidence presented through videotape “may
be relevant to the penalty determination, because it
‘humanize[s] [the victim], as victim impact evidence is designed
to do.’ (People v. Kelly (2007) 42 Cal.4th 763, 797.)” (People v.
Dykes (2009) 46 Cal.4th 731, 784 (Dykes).) It can also sometimes
be problematic. (See, e.g., People v. Sandoval (2015) 62 Cal.4th
394, 442.) We have advised trial courts to “exercise great
caution in permitting the prosecution to present victim-impact
evidence in the form of a lengthy videotaped or filmed tribute to
the victim. Particularly if the presentation lasts beyond a few
moments, or emphasizes the childhood of an adult victim, or is
accompanied by stirring music, the medium itself may assist in
creating an emotional impact upon the jury that goes beyond
what the jury might experience by viewing still photographs of
the victim or listening to the victim’s bereaved parents.” (People
v. Prince (2007) 40 Cal.4th 1179, 1289.) That said, “[t]here is no
bright-line rule pertaining to the admissibility of videotape
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recordings of the victim at capital sentencing hearings. (People
v. Prince, supra, 40 Cal.4th at p. 1288.) We consider pertinent
cases in light of the general understanding that the prosecution
may present evidence for the purpose of reminding the
sentencer that ‘ “the victim is an individual whose death
represents a unique loss to society and in particular to his
family” ’ (Payne[ v. Tennessee], supra, 501 U.S. at p. 825), but
that the prosecution may ‘not introduce irrelevant or
inflammatory material’ that ‘ “ ‘diverts the jury’s attention from
its proper role or invites an irrational, purely subjective
response.’ ” ’ (People v. Edwards [(1991)] 54 Cal.3d [787,] 836.)”
(Dykes, at p. 784.)
The four-minute wedding video shown here resembles
other videotape evidence held permissible. In Dykes, for
example, the prosecutor played a videotape of the victim and his
family visiting Disneyland. (Dykes, supra, 46 Cal.4th at p. 783.)
We approved of the trial court’s precautions, which included
reviewing the videotape itself and requiring that its audio track
be deleted. (Id. at p. 784.) After viewing that tape ourselves, we
observed that it showed only “ordinary activities” and family
interactions. (Id. at p. 785.) “The videotape is an awkwardly
shot ‘home movie’ depicting moments shared by [the victim]
with his family shortly before he was murdered. The videotape
does not constitute a memorial, tribute, or eulogy; it does not
contain staged or contrived elements, music, visual techniques
designed to generate emotion, or background narration; it does
not convey any sense of outrage or call for vengeance or
sympathy; it lasts only eight minutes and is entirely devoid of
drama; and it is factual and depicts real events.” (Ibid.) In
People v. Brady (2010) 50 Cal.4th 547, 579 (Brady), we upheld
the admission of a four-minute videotape of the victim
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celebrating Christmas with his family, only two days before he
was murdered. And in People v. Vines (2011) 51 Cal.4th 830,
888 (Vines), it was not error it admit a five-minute videotape “of
‘home movie’ quality” that showed the victim singing, dancing,
and rapping with family members and in a high school
performance.
The videotape here was similar. Although shot by a
wedding videographer, its quality resembles a “home movie”
more than a professional production. It depicts a real event in
the victim’s life, shortly before his murder. It is “not enhanced
by narration, background music, or visual techniques designed
to generate emotion,” nor does it “convey outrage or call for
vengeance or sympathy.” (Brady, supra, 50 Cal.4th at p. 579.)
It is a standard wedding video. It humanizes the murder victim
but contains nothing that would divert the jury from its proper
function. (See Vines, supra, 51 Cal.4th at p. 888.) Defendant
complains the videotape was cumulative of other evidence
because a bridesmaid testified that the victim had married
shortly before his death. However, the videotape conveyed more
than the simple fact of the victim’s marriage. The prosecution
was entitled to show the jury what the victim was like and
convey the loss suffered by his friends and family. (See Vines,
at p. 888; Brady, at p. 579.)
Defendant contends the wedding videotape was especially
problematic because the jury also saw a videotape that captured
surveillance footage of the victim’s death. Beyond asserting the
point, however, defendant does not explain why the mere
existence of other evidence in the same format would have a
“synergistic effect” rendering the videotape prejudicial.
Although video footage juxtaposing the victim in life and in
death might create prejudice in some circumstances, here the
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trial court took steps to ensure that the wedding video would not
inflame the jury’s emotions. The court first required the
prosecutor to reduce the videotape’s length. It carefully
reviewed the edited portion and ordered the prosecutor to
remove a segment that showed the bride receiving communion
during the ceremony. Finally, the court instructed the jury that
the videotape, along with other victim impact evidence, “ha[d]
been introduced for the purpose of showing the specific harm
caused by defendant’s crime” and could “not be considered . . . to
divert your attention from your proper role of deciding whether
or not the defendant should live or die. You must face this
obligation soberly and rationally, and you may not impose the
ultimate sanction as a result of an irrational, purely subjective
response to emotional evidence.” The court exercised
appropriate caution and ensured that the videotape was not
overly emotional or inflammatory. Its admission of the tape was
not an abuse of discretion.
3. “Gangsta Rap” During Carver’s Assault
While describing defendant’s assault on Patrick Carver,
Lawrence Smith testified that defendant asked a friend “to put
on a gangsta rap tape named Dr. Dre.” Defendant said, “ ‘You
know how I get when I hear my Dre.’ ” Once the music was
playing, defendant confronted Carver. Defendant now argues
the court abused its discretion and violated due process in
overruling his objections to this testimony about “gangsta rap.”
The evidence was relevant and not unduly prejudicial.
The court did not abuse its discretion in allowing the
witness’s brief reference to “gangsta rap.” As we have explained,
the court’s discretion to exclude evidence under Evidence Code
section 352 is somewhat narrower at the penalty phase than at
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the guilt phase of trial. (See People v. Jablonski (2006) 37
Cal.4th 774, 834-835.) The prosecution is entitled to present a
full picture of the circumstances surrounding a defendant’s prior
criminal acts under section 190.3, factor (b). (Jablonski, at
pp. 834-835; see Virgil, supra, 51 Cal.4th at p. 1276.)
Defendant’s request of a soundtrack for his beating of Carver
showed the callousness of his crime.
Defendant relies on various cases precluding admission of
evidence about a defendant’s gang membership, but these cases
are inapposite. No evidence suggested that defendant was
active in or involved with criminal street gangs. Nor was the
jury likely to draw this inference from his musical selection.
4. Constitutionality of Death Penalty Law
Defendant raises several challenges to the
constitutionality of California’s capital sentencing scheme. This
court has previously rejected all of these claims, and we do so
again. Specifically, we continue to hold the following:
“Section 190.2 adequately narrows the category of death-
eligible defendants and is not impermissibly overbroad under
the requirements of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.” (Winbush,
supra, 2 Cal.5th at p. 488; see People v. Wall (2017) 3 Cal.5th
1048, 1072.) Section 190.3, factor (a), directing the jury’s
consideration to circumstances of the crime, does not result in
an arbitrary and capricious imposition of the death penalty.
(People v. Thompson (2016) 1 Cal.5th 1043, 1129; see People v.
Salazar (2016) 63 Cal.4th 214, 255.) “ ‘ “Defendant’s argument
that a seemingly inconsistent range of circumstances can be
culled from death penalty decisions proves too much. What this
reflects is that each case is judged on its facts, each defendant
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on the particulars of his offense. Contrary to defendant’s
position, a statutory scheme would violate constitutional limits
if it did not allow such individualized assessment of the crimes
but instead mandated death in specified circumstances.” ’ ”
(Winbush, at p. 489.)
“The federal Constitution does not require that the court
designate which factors are aggravating or mitigating, or
instruct the jury that certain factors are relevant only in
mitigation.” (Winbush, supra, 2 Cal.5th at p. 490.) Moreover,
the use of restrictive adjectives such as “extreme” and
“substantial” in section 190.3’s description of mitigating
circumstances does not impermissibly limit the jury’s
consideration of mitigating factors. (People v. Rices (2017) 4
Cal.5th 49, 94; see People v. Jones (2017) 3 Cal.5th 583, 620
(Jones).)
The death penalty is not unconstitutional for failing to
require “findings beyond a reasonable doubt that an
aggravating circumstance (other than Penal Code section 190.3,
factor (b) or (c) evidence) has been proved, that the aggravating
factors outweighed the mitigating factors, or that death is the
appropriate sentence.” (People v. Rangel (2016) 62 Cal.4th 1192,
1235; see Winbush, supra, 2 Cal.5th at p. 489; People v. Clark
(2016) 63 Cal.4th 522, 643-644.) “This conclusion is not altered
by the decisions in Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), Ring v. Arizona (2002) 536 U.S. 584, and Hurst v.
Florida (2016) 577 U.S. __ [193 L.Ed.2d 504, 136 S.Ct. 616]
(Hurst).” (People v. Henriquez (2017) 4 Cal.5th 1, 45
(Henriquez).)
“The jury may properly consider evidence of unadjudicated
criminal activity involving force or violence under factor (b) of
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section 190.3 and need not make a unanimous finding on
factor (b) evidence.” (People v. Clark, supra, 63 Cal.4th at
p. 644; see Jones, supra, 3 Cal.5th at p. 617-618.) The use of
unadjudicated criminal activity as an aggravating factor does
not violate a defendant’s right to due process or a jury trial.
(Winbush, supra, 2 Cal.5th at p. 489.)
“The federal Constitution does not require that a burden
of proof be placed on the prosecution at the penalty phase.
[Citation.] ‘Unlike the guilt determination, “the sentencing
function is inherently moral and normative, not factual”
[citation] and, hence, not susceptible to a burden-of-proof
quantification.’ [Citation.] The trial court did not err in failing
to instruct the jury that the prosecution had the burden of
persuasion regarding the existence of aggravating factors or the
appropriateness of the death penalty. [Citation.] ‘Nor is an
instruction on the absence of a burden of proof constitutionally
required.’ ” (Jones, supra, 3 Cal.5th at p. 619.) “On the
contrary, trial courts should not instruct on any burden of proof
or persuasion at the penalty phase because sentencing is an
inherently moral and normative function, and not a factual one
amenable to burden of proof calculations.” (Winbush, supra, 2
Cal.5th at p. 489.)
“The lack of written findings by the jury during the
penalty phase does not violate the federal Constitution or
deprive a capital defendant of meaningful appellate review.”
(Winbush, supra, 2 Cal.5th at p. 490; see Henriquez, supra, 4
Cal.4th at p. 46.) Nor does the federal Constitution require
intercase proportionality review, assessing the relative
culpability of defendant’s case compared to other murders.
(Winbush, at p. 490; Jones, supra, 3 Cal.5th at p. 620.) The
death penalty statute does not violate equal protection by
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