People v. DelgadoPeople v. Delgado
I. FACTS
A. Guilt Phase
1. Murder of Frank Mendoza
On September 30, 1998, defendant and Frank Mendoza shared a cell. Around 11:15 p.m., an officer noted that both men were lying on their bunks watching television. About 25 minutes later, defendant called out, and Officer Carmona went to investigate. He saw Mendoza slumped forward on his knees between the two beds. Defendant calmly walked over to Mendoza, lifted him up by a cloth wrapped around his neck, and dropped him back to the ground. Mendoza had been strangled to death. A pillowcase covered his face, secured by a torn bed sheet. A white sock and second torn sheet were tied around his mouth. Written on the back of Mendoza‘s T-shirt were the words: “There‘s consequences to everything. He paid his and I‘m to pay mine, too. Toro.”
Defendant gave a taped statement about the killing and reenacted the crime. Mendoza had verbally abused defendant and bragged about his prior status as a lieutenant in the Nuestra Familia prison gang. Defendant warned he would “take [Mendoza] out” if he continued this behavior. Mendoza persisted, so defendant decided to kill him. Already serving a life sentence, defendant had nothing more to lose. Defendant “knew exactly when [he] was going to do it.” After nighttime
2. Murder of Kevin Mahoney
On July 2, 1999, defendant and inmate Kevin Mahoney, Jr., were placed in an exercise yard together. About two hours later, a security alarm summoned Officer Robert Todd to the yard. Mahoney was lying facedown in a pool of blood. He had no pulse or respiration. There were lacerations and bruises on his face and body, and a subdural hemorrhage at the back of his head. Two T-shirts were tied around his neck. A nearby wall bore blood splatters and a “happy face” drawn in blood. Defendant‘s feet and legs were covered in blood. While waiting in a holding cell, defendant told one officer, “You guys gave me Three Strikes on some chicken shit fight, so now I‘m going to earn mine. I got two now, and I got one more to go.”
A surveillance tape captured the attack. When defendant and Mahoney were placed in the yard, they shook hands, then walked and sat separately for several minutes. Later they walked together. Approximately 52 minutes after they entered the yard, defendant attacked Mahoney without warning, punching and kicking him repeatedly for about 30 seconds. After the attack, Mahoney sat on the ground as defendant paced back and forth. Defendant attacked again about 12
Mahoney was strangled to death. His blunt force injuries were consistent with having suffered repeated blows.
Again, defendant gave a taped statement and reenacted the crime. He decided to kill Mahoney as soon as they were put in the yard together, and put him at ease by telling him that he wanted no trouble. Defendant judged Mahoney an “[e]asy” mark. Defendant had planned to lunge at his victim and snap his neck, but he was unable to grip him securely. He resorted to punching and kicking instead. Defendant attacked Mahoney three times “until I was able to get him in a choke hold and drag him off into the corner. And that‘s where I wanted him.” Defendant explained that he moved Mahoney to that location because it would be more difficult for guards to shoot him. He choked the struggling man until he stopped breathing, then tied torn T-shirts around his neck. Defendant could hear Mahoney “gurgling in his [own] blood” which angered him. Intent on “caus[ing] as much injury . . . as I could,” he used his foot to repeatedly slam Mahoney‘s head into the concrete.
Defendant told an investigator, “I did it so what, what can you do to me[?] No one can do nothing to me.” As to motive, he said: “I‘ve [sic] snapped when . . . they gave me life for that stupid ass shit . . . a little over a[] year and a half ago. When they gave me three strikes for that shit, I told myself, made a deal with the devil, you give me the opportunity man to pick up each murder for each one of those strikes we‘re cool. So that‘s . . . my pack [sic] with the devil man, I already
3. Battery of Correctional Officer Erik Mares
Between the two murders, on October 20, 1998, defendant attacked Correctional Officer Eric Mares. As he was being handcuffed to be taken to the shower, defendant pulled away and ran to the middle of his cell with the handcuff attached to one wrist. Asked what was bothering him, defendant replied, “[T]his conversation‘s over and I‘m taking this to the next level.” Several officers assembled for a cell extraction. When they directed pepper spray into the cell, defendant rushed at the door holding his mattress to block the spray. An officer ran in, but slipped immediately because a slick substance covered the floor. A second officer also slipped and fell. Officer Mares managed to enter and grab defendant‘s legs. Defendant jabbed at Mares several times with a pointed object. Another officer pried the weapon from defendant‘s grasp. A sharp piece of plastic with a cloth handle was recovered from the cell floor. A second piece of sharpened plastic was found on defendant‘s bed. Mares had puncture holes in his protective vest and cuts on his shoulder.
Defendant admitted that he “[j]ust got bored,” and decided to provoke a cell extraction. He had two weapons ready for the confrontation and put shampoo in front of the cell door so entering officers would lose their footing. He admitted stabbing Officer Mares in the shoulder and trying to get “a nice good solid straight
4. Aggravated Assault by a Life Prisoner
Defendant was convicted of two counts of assault with a deadly weapon in 1994, and was serving a life sentence when the charged crimes occurred.
B. Penalty Phase
1. Prosecution
The prosecution introduced evidence of 10 incidents between 1997 and 2000 during which defendant possessed various weapons and assaulted correctional officers or another inmate. Several of these incidents are discussed in further detail, post, at pages 44-50. Evidence also established defendant wаs convicted of receiving stolen property in 1986, possession of a weapon by an inmate in 1986, and second degree burglary in 1990.
2. Defense
The youngest of nine children sired by four different fathers, defendant was neglected and abused by his alcoholic mother. As an infant, he was often left crying, soiled, and hungry after his mother passed out. His 11-year-old sister frequently assumed his care. As defendant got older, his mother would tie his hands and lock him in a dark closet for extended periods. She beat him often with a broom or a belt. She sometimes made him kneel on grains of rice, which cut his bare knees. The family had little to eat, but his mother punished him if he accepted food from neighbors.
Defendant‘s cousin, Inocencio Ortega, recalled defendant‘s mother beating him and locking him in the closet. Defendant sometimes hid at Ortega‘s house to escape. Once defendant‘s older brothers gave him glue to sniff.
II. DISCUSSION
A. Guilt Phase Issues
1. Presence of Correctional Officers During Attorney-Client Communications
After killing Kevin Mahoney, defendant vowed in an interview that he would kill again. (See ante, at pp. 4-5.) Concerned for defense counsel‘s safety, and with her express agreement, the trial court ordered two correctional officers to be present during all attorney-client consultations. They were bound by the attorney-client privilege. Defendant contends that the trial court exceeded its jurisdiction by accepting the parties’ stipulation and purporting to extend the attorney-client privilege to the correctional officers, who were unnecessary to the consultation. He criticizes the court for failing to consider alternative arrangements, such as physical restraints, that would have accomplished the same goal without jeopardizing confidentiality. He argues that the court-sanctioned intrusion deprived him of his federal and state constitutional rights to counsel, to present a defense, to be present during all proceedings, and to fundamental due process. He contends that the error was structural and reversible without a showing of prejudice. We reject his claims.
a. Proceedings Below
On August 6, 1999, the court held an in-chambers meeting with the prosecutor and prospective Defense Counsel Donna Tarter. The prosecutor observed that defendant had already killed two people and that he had reason to believe defendant would kill again. Voicing concerns for Tarter‘s safety, the prosecutor suggested that two correctional officers be present at all attorney-client meetings and that they be bound by the attorney-client privilege as to anything they might overhear. Tartar agreed, and the court made the order to the two correctional officers present. Thereafter, Tartar met privately with defendant and was appointed by the court to represent him. Initially, there was no discussion of the court‘s order in open court in defendant‘s presence.
On December 22, 1999, while defendant was present in open court, the prosecutor explained the security arrangements: “any communications that are overheard between Ms. Tarter and Mr. Delgado during any of the court proceeding[s] or when she is visiting him are to be encompassed within the attorney-client privilege. Given the nature of this case, we‘ve personally given that privilege to officers Masters and [Klose] so that they may be present during all communications just for the safety of all parties.” Defense counsel stated her agreement, and the trial court expressly admonished the officers “that you‘re each ordered not to disclose any information you might overhear in any of those conversations to anyone, including family members, coworkers, anyone.” Both officers affirmed their understanding. Defendant voiced no objection.
During trial, three correctional officers were stationed near defendant, one on either side and one directly behind. The record is not entirely clear if defendant and defense counsel sat next to each other or if a correctional officer sat between them. Defendant‘s hands were unrestrained so that he could write notes to counsel. Defense counsel expressly agreed to these security arrangements.
From the time he was first arraigned, defendant appeared personally in court approximately 23 times during pretrial and trial proceedings. He never complained to the court about the presence of officers at confidential attorney-client meetings. On April 14 and May 2, 2000, before trial began, the court inquired of defendant personally if there was any reason the trial could not go forward. He stated there was none. Defense counsel likewise answered ready for trial. Periodically thereafter, the court inquired of defense counsel if she had any objections or concerns. She, too, voiced no concern about the presence of officers at attorney-client meetings or in the courtroom.
Here, defendant advances both statutory and constitutional challenges to the court‘s order.
b. Attorney-Client Privilege and the Need for the Ordered Security Measures
Citing Evidence Code section 952, defendant argues that the correctional officers’ presence destroyed the confidentiality of his attorney-client communications because it was not reasonably necessary to further the purpose of the legal consultation. (See
These claims have been forfeited. Defense counsel expressly agreed to the officers’ presence at attorney-client meetings to ensure her safety, and both parties stipulated that the officers would be bound by the privilege. In the trial court, neither party challenged the necessity for the measures or the legality of the stipulation. Under these circumstances, defendant may not be heard to argue for the first time on appeal that the arrangement was unnecessary and that the privilege was destroyed. (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 696-697; see generally Ward v. Taggart (1959) 51 Cal.2d 736, 742.) Nor may he argue that the trial court abused its discretion in failing to devise a different solution. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 389 (Bryant); People v. Montes (2014) 58 Cal.4th 809, 843; People v. Duran (1976) 16 Cal.3d 282, 289). Similarly, defendant‘s jurisdiction argument is undermined by the absence of a challenge below. (See People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6 [acts in excess of jurisdiction are subject to waiver and forfeiture].)
Defendant argues that he should not be bound by his counsel‘s stipulation, which occurred before she was formally appointed. The timing here was immaterial. The stipulation was made to facilitate counsel‘s appointment. Counsel was appointed shortly thereafter, whereupon the stipulation became effective for all subsequent attorney-client meetings. There was one brief consultation in the interim. However, even if that meeting was outside the stipulation for purposes of our forfeiture analysis, defendant fails to identify anything of consequence that occurred to support his claims of error.
In addition, nothing prevented counsel from revisiting the terms of the stipulation after speaking with defendant.10 Defendant counters the record does not reveal whether or not counsel told him about the arrangement extending the attorney-client privilege to the attending officers. We will not presume counsel‘s omission. It is defendant‘s burden to show that counsel performed deficiently, by developing the record on habeas corpus if necessary. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope), overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; see generally People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)
Defendant further argues that counsel could not be counted on to object on his behalf to an order made solely for counsel‘s benefit and contrary to his rights and interests. His only authority involves a failure to object to an award of attorney‘s fees, a circumstance that is readily distinguishable. (Cf. People v. Viray (2005) 134 Cal.App.4th 1186, 1214.) Security risks occur with some frequency, and do not invariably create a conflict of interest for counsel. Defendant points to no evidence in the record that counsel labored under an actual conflict that adversely affected her performance. (Cuyler v. Sullivan (1980) 446 U.S. 335, 348.) On the contrary, counsel agreed to the arrangement only after receiving express assurances from the prosecution that it would not compromise the attorney-client privilege. Nor does defendant demonstrate that the potential risk to counsel‘s safety caused her to perform deficiently. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Further, it is not accurate to say the arrangement was made solely for counsel‘s benefit. Defendant was entitled to counsel. His own statements and admitted conduct made securing willing and capable counsel uniquely difficult. The court‘s action was taken to ensure that defendant‘s right to counsel was honored.
Even were we to overlook defendant‘s forfeiture and reach the merits, there is no basis for relief.
We likewise reject defendant‘s challenge to the necessity of the security arrangements, and the availability of less intrusive alternatives. “In general, the ‘court has broad power to maintain courtroom security and orderly proceedings’ [citation], and its decisions on these matters are reviewed for abuse of discretion.”
We emphasize, however, that we do not suggest such measures are necessary or appropriate in every circumstance. Ordering law enforcement officers to be present at attorney-client meetings is an unorthodox solution with obvious potential pitfalls. We hold only that, under these extreme circumstances, the court did not abuse its discretion. Trial courts are well advised to fashion security measures tailored to minimize the risk of intrusion on the defendant‘s constitutional rights. With these observations in mind, we turn to defendant‘s Sixth Amendment claim.
c. Deprivation of the Right to Counsel
Defendant argues that the right to confidential communications is “absolute and essential to both the federal and state right to representation by counsel.” (Citing In re Rider (1920) 50 Cal.App. 797, 799.) According to defendant, the officers involved here were members of the prosecution team, and their presence during attorney-client consultations destroyed confidentiality despite the parties’ stipulation to the contrary. Defendant claims that the officers’ presence had a chilling effect on his communications with counsel and his defense preparation, resulting in a “wholesale evisceration” of his right to counsel under both the Sixth Amendment and
As explained in Alexander, supra, 49 Cal.4th 846, the federal Constitution does not protect confidential communications between a defendant and his attorney for their own sake. “No federal constitutional provision . . . establishes an attorney-client communication privilege. Rather, the Sixth Amendment guarantees a criminal defendant the right to ‘assistance of counsel for his defense.’ (
Alexander held that interception of attorney-client communications does not constitute a complete denial of the right to counsel. (Alexander, supra, 49 Cal.4th at p. 888.) Citing Weatherford v. Bursey (1977) 429 U.S. 545 (Weatherford), we explained that the Supreme Court had “rejected a per se rule that ’ “whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.” ’ ” (Alexander, at p. 888, quoting Weatherford, at p. 549.) The high court made clear that “unless the record supports ‘at least a realistic possibility of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment violation.’ ” (Alexander, at p. 888, quoting Weatherford, at p. 558.)
Accordingly, we look to Weatherford, supra, 429 U.S. 545, to evaluate defendant‘s Sixth Amendment claim. Weatherford was an undercover agent for a state law enforcement agency. He vandalized a local office of the Selective Service with Bursey and two others. To maintain his undercover status, Weatherford was arrested and charged along with Bursey. Before trial, Weatherford was invited to two meetings where Bursey and his attorney discussed defense tactics. Weatherford did not share the dеtails of these meetings with
In evaluating the Sixth Amendment claim, the high court rejected the notion that a constitutional violation can be made out “whenever conversations with counsel are overheard” by a government agent. (Weatherford, supra, 429 U.S. at p. 551.) Rather, the court held that “the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial.” (Id. at p. 552.) The court identified several relevant factors, including whether: (1) a witness testifies at trial about the confidential conversations; (2) any of the state‘s evidence originated in these conversations; (3) the conversations were communicated to the prosecutor; or (4) the conversations were used in any other way to the defendant‘s substantial detriment. (Id. at p. 554.) The court noted that “[n]one of these elements is present here . . . . Weatherford‘s testimony for the prosecution about the events of March and April 1970 revealed nothing said or done at the meetings . . . that he attended. None of the State‘s evidence was obtained as a consequence of Weatherford‘s participation in those meetings.” (Id. at p. 555, fn. omitted.) Further, the district court expressly found that Weatherford had not communicated anything about the meeting to either his superiors or the prosecution. (Id. at p. 556.)
Applying the Weatherford factors to defendant‘s claim, he fails to establish a constitutional violation. The officers who provided security were expressly
Citing Ervine, supra, 47 Cal.4th 745, defendant argues that a Sixth Amendment violation can be predicated on a showing that confidential attorney-client information was intercepted by any member of the prosecution team. He argues that the officers who provided security at attorney-client meetings and in court were part of the prosecution team because the California Department of Corrections and Rehabilitation (CDCR) investigated the charged crimes and
First, we note that defendant‘s bald assertion that confidential communications were actually revealed is purely speculative. Further, defendant reads too much into Ervine. There, Sacramento County jail personnel entered the defendant‘s cell while he was in court and read his confidential defense documents. None of that information was communicated to the chief assistant Attorney General who prosecuted the case, or to the Lassen County District Attorney. (Ervine, supra, 47 Cal.4th at p. 763.) Applying Weatherford, supra, 429 U.S. 545, we concluded the lack of evidence that the sheriff‘s department “communicated any confidential information to anyone” defeated defendant‘s Sixth Amendment claim. (Ervine, at p. 765.) To support this conclusion, we drew an analogy to the scope of liability under Brady (see Ervine, at p. 768), and observed that “[t]he agency responsible for intruding on defendant‘s relationship with his attorney (the Sacramento County Sheriff‘s Department) was completely unrelated to the agency actually prosecuting defendant (the Lassen County District Attorney‘s Office)” (id. at p. 767). Nonetheless, because the relationship between the agencies in Ervine was tangential, we were not called upon to consider what degree of association would be sufficient to establish a Sixth Amendment violation
Weatherford, however, did consider that question, and rejected an argument similar to the one defendant advances here. Unlike the officers in this case, Weatherford was involved in the investigation and called as a prosecution witness. Bursey argued that Weatherford was therefore “a member of the prosecuting team whose knowledge of Bursey‘s trial plans was alone enough to violate Bursey‘s constitutional right to counsel and to vitiate Bursey‘s conviction. [Citation.]” (Weatherford, supra, 429 U.S. at p. 556.) The court disagreed: “Though imaginative, this reasoning is not a realistic assessment of the relationship of Weatherford to the prosecuting staff or of the potential for detriment to Bursey or benefit to the State that Weatherford‘s uncommunicated knowledge might pose.” (Ibid.) Rather, the court looked to whether the receipt of confidential information by persons other than the prosecutor resulted in testimony or other evidence against the defendant. (Id. at p. 554.) As noted, defendant made no such showing here.
Defendant asserts, “[b]ecause in this case all attorney-client conferences were conducted in the close proximity of [CDCR] employees,” this fact “establishes a very real possibility” of injury to defendant‘s case. People v. Rich (1988) 45 Cal.3d 1036, rejected the defendant‘s claim that the presence of an officer during psychiatric interviews violated his right to counsel, observing that the officer “was instructed not to repeat anything he heard during the interview” and that the officer assured defense counsel that he would not do so. (Id. at p. 1099, fn. 16.) Thеse officers were similarly instructed, and, as noted, defendant points to nothing in the record to show they violated the court‘s directive.
Defendant contends that the officers’ presence had a “chilling effect” on his communications with counsel and undermined his ability to assist in his defense.
So too here. Defendant observes that after he first met with defense counsel on August 6, 1999 in the presence of correctional officers, he told the court that he had “nothing to discuss” with counsel and that he had “no intentions to discuss anything with her.” He invites us to infer from these comments that he was reluctant to speak in the presence of officers. The remark is taken out of context. Immediately before defendant‘s statements, the court and counsel had been discussing dates for the preliminary hearing. Asked if he was willing to waive time, defendant responded that he wanted a preliminary hearing within 10 days so that it would be “done and over with.” The court noted that 10 days would not give defense counsel time to prepare, and asked defendant, “You don‘t wаnt [defense counsel] to have any time?” It was at this point that defendant responded he had nothing to discuss with counsel. Taken in totality, defendant‘s comments
In any event, any asserted reluctance to assist counsel was short-lived. On November 20, 1999, after the preliminary hearing, defendant was arraigned. Asked if he would like to have counsel appointed, defendant responded affirmatively. He voiced no objection when the court appointed Ms. Tarter to continue her representation. He also agreed to waive time to accommodate defense counsel‘s requested trial dates. On December 16, 1999, defense counsel stated on the record that she had been “talking [with Mr. Delgado] for about a half an hour or so” and that she was requesting additional time to investigate the case. On March 30, 2000, counsel conveyed defendant‘s request that he be allowed to view the videotape evidence. Counsel indicated that she would be consulting with defendant at the prison and that the prison litigation staff had been “very cooperative.”
Defendant also asserts that, during court proceedings, “he could not whisper to his attorney, nor pass her confidential notes, without also revealing his communications to the correctional officers who were ‘circling around’ him, between [defendant] and attorney Tarter.” The record before us is not entirely clear as to the officers’ positions in court. (See ante, at p. 8.) Significantly, there is no direct evidence that the officers’ presence impeded defendant‘s ability to whisper to counsel or pass her notes. On the contrary, the officer in charge of courtroom security confirmed that defendant‘s hands would be unrestrained and he would be given a pen so that he could communicate with his attorney in writing. This circumstance does not resemble People v. Zammora (1944) 66 Cal.App.2d 166, wherein reversiblе error was found because the 22 defendants were seated at some distance from counsel‘s table and were not allowed to approach or consult
The fact that neither defense counsel nor defendant voiced any concern about the officers’ presence further undercuts his claim of a chilling effect. Although defense counsel initially agreed to the arrangement, she was certainly free to revisit the issue if it proved unworkable. She did not thereafter object or otherwise alert the court that the arrangement negatively affected her ability to communicate with defendant. Likewise, at no time did defendant raise a concern with the court about the presence of the officers. Defendant counters that no inference may be drawn from his silence because the record does not show that counsel even told him about the arrangement. His argument is unpersuasive. First, there is no evidence that counsel failed to so advise defendant that the officers were bound by the privilege. It is defendant‘s burden to show that counsel performed deficiently. (Pope, supra, 23 Cal.3d at p. 425.) Second, and significantly, defendant was present in court on December 22, 1999 when the court admonished the officers that they were bound by the privilege and expressly ordered them not to disclose any overheard communications. Thereafter, on April 14 and again on May 2, 2000, the trial court asked defendant whether there was any reason the trial could not proceed. Defendant responded that there was not. Defendant‘s claimed inability to consult with counsel or assist in his defense is unsupported by any evidence in the record. (Ervine, supra, 47 Cal.4th at p. 769.) Accordingly, his Sixth Amendment claim fails. (Alexander, supra, 49 Cal.4th at p. 889.)
Defendant fares no better with his claim that his right to counsel under
Defendant argues that the interference here was even more pervasive than in Barber. Not so. In Barber, some of the content of attorney-client conversations was actually relayed to other officers, and there was a demonstrated chilling effect on attorney-client communications. (Barber, supra, 24 Cal.3d at p. 756.) Neither of those circumstances is present here. The court in Alexander, on a record similar to this case, questioned whether the defendant‘s state constitutional right to counsel was violated “notwithstanding broad language used in the much more egregious circumstances of Barber.” (Alexander, supra, 49 Cal.4th at p. 895; accord, Ervine, supra, 47 Cal.4th at p. 770 [distinguishing Barber].) Barber‘s holding that a violation of the right to counsel is shown “when a state agent is present at confidential attorney-client conferences” (Barber, at p. 752), must be understood in light of its facts, which differ markedly from those here.
For the same reasons that defendant has failed to prove his other constitutional claims, he has also failed to demonstrate a reasonable probability that, absent any alleged violation, the trial‘s outcome would have been more favorable. “No evidence establishes the prosecution gained anything from [the officers’ presence] or that the defense was affected negatively in a way that could have changed the trial‘s outcome.” (Alexander, supra, 49 Cal.4th at p. 899.)
d. Denial of the Right to Be Present
Defendant claims that his absence from the August 6 proceeding at which the court ordered that officers be present at attorney-client meetings violated his constitutional right to due process and his statutory rights (
We need not decide whether our state statutes or principles of due process entitled defendant to be present during the in-chambers conference on August 6, 1999. Any error in excluding him was harmless. (See People v. Thompson (2016) 1 Cal.5th 1043, 1098-1099.) Defendant had ample opportunity to raise these issues in subsequent proceedings during which he was present. He was obviously aware of the officers’ presence from the very first meeting with counsel. At arraignment, he voiced no concern about the officers’ presence; nor did he object to counsel‘s appointment оr ask to proceed pro se. Subsequently, defendant was present when the judge admonished officers in open court that they were bound by the attorney-client privilege. Again defendant raised no concerns about a chilling effect on his communications with counsel; nor did he request to proceed pro se. As noted, before trial the court twice asked defendant personally if there was any reason that trial could not begin. He voiced none. Defendant had ample and multiple opportunities to explore these security issues. His exclusion from the
Defendant further contends that he was denied his Sixth Amendment right ” ’ “to be personally present at any proceeding in which his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross-examination.’ ” ’ ” (Gonzales, supra, 54 Cal.4th at pp. 1253-1254.) He reasons that “while [he] was physically present during trial, he was unable to assist counsel with cross-examination without disclosing his comments to correctional officers at the same time, and thus, it was no different than if he had been tried in absentia.” This remarkable claim is without merit. Defendant was present during all trial proceedings where evidence was taken. The record discloses that defendant‘s hands were unrestrained and he was able to write notes to defense counsel. Additionally, there is no evidence other than defendant‘s bare assertion that he was unable to speak to defense counsel during trial due to the presence of correctional officers. At no time did defendant advise the court of his asserted concern. The record reveals no interference with defendant‘s opportunity to assist counsel in conducting effective cross-examination.
2. Multiple Convictions for First Degree Murder and Aggravated Assault by a Life Prisoner (§ 4500)
“While
“In deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (People v. Reed (2006) 38 Cal.4th 1224, 1229.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (Id. at p. 1227.) In other words, ” ‘[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” (Ibid., quoting People v. Lopez (1998) 19 Cal.4th 282, 288.)
Defendant reasons that
” ‘The words malice aforethought in
Defendant‘s argument overlooks the fact that he was convicted of first degree murder.
First degree murder also includes an unlawful killing with malice aforethought that is perpetrated by certain specified means (such as a destructive device, poison, lying in wait, torture, etc.), and an unlawful killing during the commission or attempted commission of certain listed felonies. (
Because it is possible to violate
3. Claims of Instructional Error
The trial court instructed the jury with CALJIC Nos. 2.01 (sufficiency of circumstantial evidence), 2.21.2 (willfully false testimony), 2.22 (weighing conflicting testimony), 2.27 (sufficiency of testimony of a single witness), 2.51 (motive) and 8.20 (willful, deliberate, and premeditated murder) at the guilt phase. It repeated all of thеse instructions except CALJIC No. 8.20 at the penalty phase. Defendant claims these standard instructions undermined the prosecution‘s burden
“CALJIC No. 2.01 does not alter the burden of proof, nor does it create a mandatory presumption of guilt.” (People v. Bonilla (2007) 41 Cal.4th 313, 338, and cases cited.) The instruction “properly direct[s] the jury to accept an interpretation of the evidence favorable to the prosecution and unfavorable to the defense only if no other ‘reasonable’ interpretation can be drawn. Particularly when viewed in conjunction with other instructions correctly stating the prosecution‘s burden to prove defendant‘s guilt beyond a reasonable doubt, [this] circumstantial evidence instruction[] do[es] not reduce or weaken the prosecution‘s constitutionally mandated burden of proof or amount to an improper mandatory presumption of guilt.” (People v. Kipp (1998) 18 Cal.4th 349, 375.)
Defendant counters that “[a]n instruction that dilutes the beyond-a-reasonable-doubt standard of proof on a specific point is not cured by a correct general instruction on proof beyond a reasonable doubt.” He overlooks the fact that CALJIC No. 2.01, as given, specifically referred to the reasonable doubt standard, stating that “each fact which is essential to complete a set of circumstances necessary to establish the defendant‘s guilt must be proved beyond a reasonable doubt.” It also provided: “if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the
CALJIC No. 2.21.2 does not reduce the prosecution‘s burden of proof. (People v. Beardslee (1991) 53 Cal.3d 68, 95.) As given, it informed the jury that “[y]ou may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” Defendant argues that the instruction “lightened the prosecution‘s burden of proof by allowing the jury to credit prosecution witnesses if their testimony had a ‘mere probability of truth.’ ” However, the instruction “says no such thing.” (People v. Nakahara (2003) 30 Cal.4th 705, 714 (Nakahara).) It ” ‘does nothing more than explain to a jury one of the tests they may use in resolving a credibility dispute.’ ” (Beardslee, at p. 95; quoting People v. Blassingill (1988) 199 Cal.App.3d 1413, 1419.) It does not speak to, nor does it conflict with, the ultimate burden of proof applicable to the elements of the charge. (People v. Hillhouse (2002) 27 Cal.4th 469, 493; see People v. Centeno (2014) 60 Cal.4th 659, 672.) The instruction ” ‘is unobjectionable when, as here, it is accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People‘s burden of proof.’ ” (People v. Kelly (2007) 42 Cal.4th 763, 792 (Kelly), quoting Nakahara, at p. 715; accord, People v. Riel (2000) 22 Cal.4th 1153, 1200.)
Defendant criticizes precedent that looks to the reasonable doubt instruction as a cure for an alleged ambiguity, particularly where the challenged instruction itself contains no such cross-reference. We have long held that “the correctness of jury instructions is to be determined from the entire charge of the court, not from a
CALJIC No. 2.22‘s direction to consider “the convincing force of the evidence” in weighing the testimony of a number of witnesses, did not lessen the prosecution‘s burden of proof where the instructions as a whole correctly instructed the jury on that burden. (People v. Cleveland (2004) 32 Cal.4th 704, 751 (Cleveland).) Contrary to defendant‘s argument, there is no reason to presume the jury would equate the word “convincing” with the lesser preponderance of the evidence standard, which was nowhere mentioned in the instructions given.
CALJIC No. 2.27, as given, told the jury that “[t]estimony by one witness which you believe concerning any fact is sufficient for the proof of that fact.” Contrary to defendant‘s argument, the instruction did not erroneously suggest that defendant had the burden of proving facts, rather than simply raising a reasonable doubt about the prosecution‘s case. The instruction ” ‘is unobjectionable when, as here, it is accompanied by the usual instructions on reasonable doubt, the
CALJIC No. 2.51, as given, told the jury that “[m]otive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.” Defendant arguеs that the instruction shifted the burden of proof to him to disprove motive in order to establish his innocence. “But the instruction did not shift the burden of proof. It merely told the jury it may consider the presence or absence of motive. [Citations.] The motive instruction did not itself include instructions on the prosecution‘s burden of proof and the reasonable doubt standard, but it also did not undercut other instructions that correctly informed the jury that the prosecution had the burden of proving guilt beyond a reasonable doubt.” (Cleveland, supra, 32 Cal.4th at p. 750.) Defendant further argues that the instruction improperly allowed the jury to convict based on the presence of motive alone. Because this argument merely goes to the clarity of the instruction, it is forfeited by defendant‘s failure to object below. (Ibid.) In any
Finally, CALJIC No. 8.20 did not mislead the jury regarding the prosecution‘s burden of proof at the guilt phase. The instruction told the jury that deliberation and premeditation “must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation.” Defendant argues that “the word ‘precluding’ could be interpreted to require the defendant to absolutely eliminate the possibility of premeditation, as opposed to raising a reasonable doubt.” However, when read in conjunction with the instructions on reasonable doubt, the presumption of innocence, and the People‘s burden of proof, there is no reasonable likelihood the jury would have interpreted CALJIC No. 8.20 in this manner. (Nakahara, supra, 30 Cal.4th at p. 715.) “These instructions make it clear that a defendant is not required to absolutely preclude the element of deliberation.” (Ibid.)
B. Penalty Phase Issues
1. Constitutionality of Lying-in-Wait Special Circumstance
“At the time of defendant‘s crime, the special circumstаnce of murder while lying in wait (former
As defendant acknowledges, we have repeatedly rejected these claims. (People v. Streeter (2012) 54 Cal.4th 205, 252-253 (Streeter); People v. Carasi (2008) 44 Cal.4th 1263, 1310; People v. Stevens (2007) 41 Cal.4th 182, 203-204; Nakahara, supra, 30 Cal.4th at p. 721; People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149; People v. Morales (1989) 48 Cal.3d 527, 557-558, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) These holdings were recently reaffirmed in Casares, supra, 62 Cal.4th 808, which explained, “we have differentiated between the lying-in-wait special circumstance
Casares also rejected defendant‘s challenge to the validity of the special circumstance on the ground that only three other states use lying in wait as a basis for death eligibility. We observеd, apart from noting “the rarity, among capital punishment jurisdictions, of lying in wait as a death-eligibility factor, defendant provides no historical information regarding any change, to or away from, the use of lying in wait for this purpose.” (Casares, supra, 62 Cal.4th at p. 851.) We observed that the high court had not held, “whether by discerning a national consensus on the issue or through some other mode of analysis, that a form of murder as defined by a state, when committed by one with a sufficient degree of participation and without a characteristic deemed to limit culpability as a matter of law was, per se, insufficiently aggravated to permit imposition of the death penalty under the Eighth Amendment.” (Id. at p. 852.) Finally, we emphasized that ” ‘[m]urder committed by lying in wait has been “anciently regarded . . . as a particularly heinous and repugnant crime.” ’ ” (Id. at p. 853, quoting People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) For these same reasons, we reject defendant‘s contentions here.
Defendant contends that
We recently considered and rejected similar claims in People v. Landry (2016) 2 Cal.5th 52 (Landry). For the reasons stated there, we reject defendant‘s constitutional challenge to
“To pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the сlass of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ ” (Lowenfield v. Phelps (1988) 484 U.S. 231, 244.)
As to the first requirement, Landry noted that “the class of individuals potentially subject to the death penalty under
Regarding the second requirement, Landry explained that “the Legislature has determined that death eligibility for life prisoners who commit an aggravated assault that leads to the victim‘s death is required to ‘protect[] [their fellow] prisoners . . . against the assaults of the vicious, and also to protect the officers who are required to mingle with the inmates, unarmed.’ ([People v.] McNabb [(1935)] 3 Cal.2d [441,] 458; accord, [People v. Superior Court (Bell) (2002)] 99 Cal.App.4th [1334,] 1341.) By imposing more severe penalties on those serving life sentences, ‘the Legislature was attempting to deter severely violent crime by those who might otherwise think themselves immune from punishment because they were already lifetime guests of the state penal system.’ (In re Carmichael (1982) 132 Cal.App.3d 542, 546.) Along with retribution, deterring attacks by life prisoners and thereby promoting the safety of inmates and correction officers are legitimate penal objectives. (See Kennedy v. Louisiana (2008) 554 U.S. 407, 420 (Kennedy) [‘punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution‘].) These rationales of institutional security, deterrence, and retribution provide a reasonable justification for distinguishing this category of murder from others to which the death penalty does not apply.” (Landry, supra, 2 Cal.5th at pp. 107-108.)
Defendant complains that inmates who are serving a life sentence “are not necessarily more culpable than those serving a determinate sentence and are therefore not necessarily more deserving of execution when they commit fatal assaults while incarcerated.” Landry rejected a similar argument, noting that
Landry further rejected the defendant‘s reliance on Sumner v. Shuman (1987) 483 U.S. 66, a case that struck down as unconstitutional a mandatory capital sentencing procedure for prisoners who committed murder while serving a sentence of life without the possibility of parole. As the Supreme Court noted, under those circumstances, “[w]ithout consideration of the nature of the predicate life-term offense and the circumstances surrounding the commission of that offense, the label ‘life-term inmate’ reveals little about the inmate‘s record or character.” (Sumner, at p. 81.) Landry found Sumner‘s holding inapposite to
Defendant argues that there are ways other than a death sentence to deter murder in prison, and that statistical evidence suggests capital punishment does not actually deter in-prison homicide. His arguments are misplaced. “The weight and validity of such studies involve policy questions within the Legislature‘s purview. So, too, do defendant‘s arguments regarding retributive steps short of death that might be taken against prisoners who kill. These studies do not establish that imposing death eligibility on life prisoners who commit fatal aggravated assaults is constitutionally impermissible.” (Landry, supra, 2 Cal.5th at p. 111.)
Finally, defendant urges that an interjurisdictional comparison demonstrates a lack of societal consensus that the death penalty is warranted for murder by a life prisoner. He argues that only three states, Alabama, Mississippi, and New Hampshire, have a statute equivalent to
Defendant‘s constitutional challenge to
3. Admission of Other Crimes Evidence in Aggravation (§190.3, factor (b) )
The prosecution introduced evidence in aggravation of 10 unadjudicated incidents during which defendant was extracted from his prison cell. Defendant argues that, for seven of these incidents, the evidence was legally insufficient to prove that he engaged in criminal activity involving the use or attemрted use of force or violence, or express or implied threats to use force or violence (hereafter use, attempt, or threat of violence). (
a. Forfeiture
Defendant failed to object at trial to admission of other crimes evidence on the ground that it did not meet factor (b)‘s criteria. He has thus forfeited his appellate claim. (People v. Livingston (2012) 53 Cal.4th 1145, 1175 (Livingston); People v. Lewis (2008) 43 Cal.4th 415, 529 (Lewis), disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919; People v. Montiel (1993) 5 Cal.4th 877, 928, fn. 23, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13;
Livingston, supra, 53 Cal.4th 1145, recently affirmed this principle. There the defendant argued that his claim should not be deemed to be forfeit because “he is not challenging the admission of the evidence but its sufficiency, a challenge a defendant may make on appeal from a conviction without an objection. But, as we explained in Montiel, here the evidence was admitted at the penalty phase of a capital trial as aggravating evidence, not to support a conviction for that crime.”
Defendant further argues that his challenge to the admission of the cell extractions that occurred on March 8, 1997 at High Desert State Prison, and on April 18, 2000 at Corcoran State Prison should not be deemed to be forfeit inasmuch as the court examined the admissibility of those two incidents on its own motion. He reasons that any further objection by counsel would have been futile because the trial court had already addressed the issue and there was no reason to think that a specific objection would have resulted in a different ruling. He cites People v. Hill (1998) 17 Cal.4th 800, but that case is distinguishable. In Hill, defense counsel was “subjected to a constant barrage of . . . unethical conduct” by the prosecutor that the trial court failed to control. (Id. at p. 821.) The atmosphere was “so poisonous,” and reflected so unfavorably on defense counsel in front of the jury, that counsel‘s failure to object was excused under the “unusual circumstances” of that case. (Ibid.) No similar circumstances are present here. Defendant points to no instance where the trial court precludеd his counsel‘s objections. On the contrary, at one point when discussing the admissibility of the aggravating evidence, the court expressly invited defense counsel‘s comments.
Additionally, defendant‘s arguments on appeal deviate from the concerns the trial court raised below. With respect to the April 18, 2000 incident, discussed further below, the court challenged the prosecutor‘s representation that defendant‘s possession of a pepper spray canister qualified a weapon under
b. The Evidence Was Properly Admitted
Although defendant‘s challenge was forfeited, we briefly address his claims on the merits. ” ’ “[A] trial court‘s decision to admit ‘other crimes’ evidence at the penalty phase is reviewed for abuse of discretion, and no abuse of discretion will be found where, in fact, the evidence in question was legally sufficient.” ’ ” (People v. Tully (2012) 54 Cal.4th 952, 1027 (Tully).) No abuse of discretion appears.
i. Incidents on March 8, 1997 at High Desert State Prison and on April 18, 2000 at Corcoran State Prison
Sergeant Dewall testified that on March 8, 1997, defendant and his cellmate covered their cell window, which prevented security checks. Dеspite repeated orders from staff, the inmates refused to remove the covering. Officers sprayed three bursts of pepper spray into the cell at two-minute intervals. Each time the inmates were given an opportunity to comply, but refused. The officers then fired six projectiles into the cell, again giving the inmates an opportunity to comply
Lieutenant James Gatto testified that on April 18, 2000, defendant was told he would have to move to a different cell. He refused to be handcuffed, and said that he was “going to go my way.” Lieutenant Gatto organized a cell extraction. He sprayed pepper spray through the food port. Defendant reached through the port and grabbed the canister, making contact with Gatto‘s hand. Defendant then struck the window of his cell 14 times with the large metal canister, shattering the glass. Defendant‘s contact with Gatto‘s hand as he snatched the canister constituted a battery.
Defendant argues that these incidents should not have been admitted because they “were simple assault and misdemeanor battery, not acts of violent criminality.” He maintains that criminal activity should only be admissible under
Additionally, the proper admission of evidence under factor (b) is not based оn the abstract, definitional nature of the offense, but on the conduct it involves.
As to the March 8, 1997 extraction, defendant argues “[t]here was no evidence that [he] intended to make any physical contact with the guards. His ‘charging’ out of the cell was in response to repeated orders to exit the cell. The mattress . . . held before him was used as a shield against the rubber bullets, not as a weapon, and also prevented harm to the correctional officers by blocking contact with [defendant‘s] hands and feet.” Defendant‘s claims of lawful compliance and actions in self-defense are belied by the evidence. The officers gave defendant ample opportunity to peaceably comply with their directives before resorting to pepper spray and projectiles. Given defendant‘s classification as a high security risk, the officers’ use of nonlethal force to remove him from the cell was not excessive. At the guilt phase the jury heard defendant‘s statement explaining his motivation for provoking cell extractions: “things build up man, it just builds up and I just get so angry I can‘t control it. I try to stay away from Cell Extractions because that‘s the last thing I want to do is have problems with the [correctional officers] when I‘m depending on them so much. But it get[s] to the point to where you know what it doesn‘t matter man. . . . You know so it‘s like I feel that I have to do something more than [arguing with or gassing18 the guards] you know I feel that I have to draw blood[;] I have to do something[;] I have to try to hurt one of them. You know in order to feel successful.” (Italics added.) “I do [cell
Under these circumstances, the trial court did not err in admitting the March 8 and April 18 incidents.
ii. Incidents on March 12 and 13, 1997 at High Desert State Prison and on November 13, 1999, March 29, 2000, and April 15, 2000 at Corcoran State Prison
On March 12, 1997, defendant and his cellmate Romo obscured the window of their cell and refused to remove the covering. When Sergeant Dewall tried to look into the cell through the food port, he was struck by two small cardboard milk containers containing a yellowish-brown substance that smelled of feces and urine. The substance splashed onto his face and arm. Dewall ordered the inmates to submit to handcuffing but they refused. Early the next morning, officers performed a cell extraction. The officers sprayed pepper spray into the cell three times. Each time they directed defendant and Romo to comply with their orders, but the inmates refused. When officers fired six rubber projectiles into the cells, defendant and Romo again refused to comply. The officers forcibly
The gassing incident and the subsequent fight with a correctional officer were admissible under
On November 13, 1999, Officer Jamie Tovar escorted inmate Lopez to the shower. As they passed by defendant‘s cell, Lopez kicked at something. Tovar saw an object protruding from defendant‘s food port. He pushed Lopez out of the way and kicked at the object, breaking it into two pieces. The object was a plastic spoon handle sharpened to a point and wrapped in rolled paper. During a subsequent search of defendant‘s cell, Officer Carlos Espinoza found a sharpened toothbrush wrapped in a paper handle. Defendant occupied the cell by himself. This evidence that defendant possessed a potentially dangerous weapon was admissible under factor (b). (People v. Wallace (2008) 44 Cal.4th 1032, 1081-1082 (Wallace); Lewis, supra, 43 Cal.4th at pp. 529-530.) Defendant argues that no witness saw him in possession of the sharpened spoon. However, the fact that defendant was alone in the cell when the item was seen protruding from the food port was sufficient circumstantial evidence that he possessed the weapon.
On March 29, 2000, defendant was in a cell talking with Officer Kenneth Pearson. Defendant reached out and placed a weapon on the ledge of the cell‘s food port. Another officer, Francisco Mascarenas, saw the weapon and videotaped the rest of the encounter. The tape shows the weapon sitting on the ledge. After Pearson walks away, defendant picks up the weapon and hides it in the waistband of his boxer shorts. Mascarenas ended the video, walked over to defendant, and told him to surrender the weapon. Defendant threw it into a trash can. The weapon was six inches long with a paper handle and a three-quarters’ inch sharpened metal point. This evidence that defendant possessed a potentially dangerous weapon was admissible under factor (b). (Wallace, supra, 44 Cal.4th at pp. 1081-1082; Lewis, supra, 43 Cal.4th at pp. 529-530.)
Defendant maintains that this incident was unreliable because the videotape evidence contradicted Pearson‘s testimony that he saw defendant place what he thought was a piece of paper in the food port, and then brush it onto the floor. This minor discrepancy is of no moment. The videotape and Mascarenas‘s testimony clearly show defendant in possession of the weapon. Defendant also argues that the weapon posed no threat of force or violence because he made no attempt to use it against Officer Pearson. It has been established for over two decades that possession of a potentially dangerous weapon in custody “is unlawful and involves an implied threat of violence even where there is no evidence defendant used or displayed it in a provocative or threatening manner.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 589, disapproved on another ground in People v. Harris (2008) 43 Cal.4th 1269, 1311; accord, Lewis, supra, 43 Cal.4th at pp. 529-530.) Notably, defendant did not surrender the weapon to Officer Pearson, but instead concealed it on his person after Pearson walked away. “The circumstances of defendant‘s possession of the [weapon], particularly when viewed together with his overall conduct while in custody . . . lead us to conclude that the trial court did not abuse its discretion in admitting the evidence . . . .” (Wallace, supra, 44 Cal.4th at p. 1082.)
On April 15, 2000, Officer William Henderson saw defendant standing on his bunk trying to cover the overhead light fixture with a blanket. Another correctional officer, William Butts, removed defendant from the cell and searched it. He found three metal weapons hidden under a blanket. One was a two-and-one-quarters’ inch long metal stock, sharpened to a point. A second was three inches long, sharpened on one side, and fixed to a paper handle. A third was approximately five inches long, sharpened to a point, with a handle fashioned from cloth and surgical tape. Grooves had been cut into the Plexiglas light fixture and defendant‘s bunk. Plastic shavings on the floor appeared to have come from the light fixture. Defendant occupied the cell alone. Again, this evidence that defendant possessed potentially dangerous weapons was admissible under factor (b). (Lewis, supra, 43 Cal.4th at pp. 529-530.) Defendant argues there was no evidence that he knew of the weapons or had control over them. No one saw him make the weapons or place them under the blanket. However, the fact that defendant was alone in the cell with weapons hidden under his blanket and fresh shavings on the floor was sufficient circumstantial evidence of knowing possession. (See ibid.)
Because each of the challenged incidents was admissible under
Defendant further argues that, as to these seven unadjudicated aggravating circumstances, the evidence presented was legally insufficient to prove them beyond a reasonable doubt. He contends that the penalty phase determination was impermissibly skewed by the jury‘s consideration of numerous aggravating incidents that the prosecution ultimately failed to prove. No error appears.
“To admit evidence of unadjudicated crimes under
Here, the court instructed on the elements of weapon possession by a prisoner (
Whether defendant‘s use of force was legally justified and the weight, if any, to be given to these incidents for purposes of the individualized penalty
4. Instruction with CALJIC No. 8.87 on the Use of Other Crimes Evidence as a Circumstance in Aggravation
The court gave CALJIC No. 8.87, regarding the use of other criminal activity as a circumstance in aggravation under
As defendant acknowledges, we have repeatedly held that the trial court determines as a matter of law whether the prosecution‘s proposed evidence is a crime involving the use, attempt, or threat of violence. The jury determines only whether the prosecution has proved beyond a reasonable doubt that the defendant committed the unadjudicated criminal act. (Bryant, supra, 60 Cal.4th at pp. 451-452; Streeter, supra, 54 Cal.4th at p. 266; People v. Taylor (2010) 48 Cal.4th 574, 656 (Taylor); People v. Burney (2009) 47 Cal.4th 203, 259; People v. Loker (2008) 44 Cal.4th 691, 745; People v. Monterroso (2004) 34 Cal.4th 743, 793; Nakahara, supra, 30 Cal.4th at p. 720.)
This interpretation is consistent with our long-standing understanding of the jury‘s role in evaluating unadjudicated crimes as a circumstance in aggravation. At the penalty phase, the jurors must ” ’ “make an individualized assessment of the character and history of the defendant to determine the nature of the punishment to be imposed.” ’ ” (Taylor, supra, 48 Cal.4th at p. 653.) “[T]he ultimate question for the sentencer is simply whether the aggravating
Dunkle, supra, 36 Cal.4th 861, stands not to the contrary. There we rejected the defendant‘s argument that the trial court erred in failing to define ” ‘express or implied threat to use force or violence’ ” in the context of an uncharged burglary. (Id. at p. 922.) We observed that the phrase “possesses a ’ “common-sense core of meaning . . . that criminal juries should be capable of understanding.” ’ ” (Ibid., quoting Tuilaepa v. California, supra, 512 U.S. at p. 975.) We also rejected the defendant‘s argument that ”the instruction on burglary for theft improperly permitted the jury to find an aggravating factor based on an offense not involving the use or threat of force or violence against a person.” (Dunkle, at p. 922, italics added.) We concluded that “the burglary instruction, the general
Notably, CALJIC No. 8.87 did not preclude counsel from arguing against the aggravating nature of such evidence based on the surrounding facts. Counsel in fact urged the jury to find this evidence insignificant because the cell extractions were prompted by minor rules violations and no correctional officers were injured.
5. Constitutionality of the Death Penalty Statute and Related Instructions
Defendant presents a multipronged general attack on the constitutionality of California‘s death penalty statute and related standard jury instructions. We have previously considered and consistently rejected these challenges. We decline to revisit the following holdings:
The use of the same jury at both the guilt and penalty phases does not deprive defendant of his constitutional right to an impartial and unbiased jury under the
“[T]he use of unadjudicated offenses [under
“The death penalty law is not unconstitutional for failing to impose a burden of proof—whether beyond a reasonable doubt or by a preponderance of the evidence—as to the existence of aggravating circumstances, the greater weight of aggravating circumstances over mitigating circumstances, or the appropriateness of a death sentence.” (People v. Thornton (2007) 41 Cal.4th 391, 469; accord, People v. Elliot (2005) 37 Cal.4th 453, 487-488 (Elliot).) Furthermore, there is no federal constitutional requirement that the jury unanimously agree on the existence of aggravating factors. (Taylor, supra, 48 Cal.4th at p. 651; Rogers, supra, 39 Cal.4th at p. 893.) The United States Supreme Court‘s decisions in Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S. 466, do not compel a different conclusion. (Taylor, at pp. 651-652; Rogers, at p. 893.)
“The trial court was not required to instruct the jury that . . . the beyond-a-reasonable-doubt standard and requirement of jury unanimity do not apply to mitigating factors.” (Streeter, supra, 54 Cal.4th at p. 268; accord, Kansas v. Carr (2016) __ U.S. __, __ [136 S.Ct. 633, 642] [“[O]ur case law does not require
“Use in the sentencing factors of such adjectives as ‘extreme’ (
“The trial сourt is not required to delete inapplicable sentencing factors from CALJIC No. 8.85.” (People v. McDowell (2012) 54 Cal.4th 395, 444 (McDowell).) Nor must the court instruct the jury that
CALJIC No. 8.88 adequately informs the jury that “the central determination is whether death is the ‘appropriate punishment.’ ” (McDowell, supra, 54 Cal.4th at p. 444; see Woodson v. North Carolina (1976) 428 U.S. 280, 305.) The instruction “properly explains to the jury that it may return a death verdict if the aggravating evidence ‘warrants’ death.” (McDowell, at p. 444.)
“The instructions were not impermissibly broad or vague in directing jurors to determine whether the aggravating factors were ‘so substantial in comparison with the mitigating factors that it warrants death instead of life without parole.’ [Citation.]” (People v. Valdez (2012) 55 Cal.4th 82, 180.)
CALJIC No. 8.88 properly conveys to the jury that life in prison without the possibility of parole is the appropriate punishment if the factors in mitigation outweigh those in aggravation. (People v. Jones (2012) 54 Cal.4th 1, 78-79.)
“Finally, we have repeatedly held that the death penalty does not violate the
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.