Filed 12/12/16




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S100735
           v.                        )
                                     )
DANIEL GARY LANDRY,                  )
                                     )                     San Bernardino County
           Defendant and Appellant.  )                    Super. Ct. No. FCH-02773
____________________________________)


        Defendant Daniel Gary Landry was convicted by a jury of first degree
murder (Pen. Code,1 § 187, subd. (a)), two counts of assault by a life prisoner with
malice aforethought (§ 4500), and one count of custodial possession of a weapon
(§ 4502, subd. (a)). Additionally, the jury found true allegations that defendant
personally used a deadly and dangerous weapon in the commission of the offenses
(former § 12022, subd. (b)(1)), and that he had suffered two prior strike
convictions for first degree residential burglary (§ 459). (§ 1170.12, subds. (a)-
(d).) Following a penalty trial, the jury returned a verdict of death. The trial court
denied the automatic application to modify the verdict (§ 190.4, subd. (e)), and
sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) For
the reasons set forth below, we strike the one-year enhancement imposed on count



1       All unspecified statutory references are to the Penal Code.




                                          1
3 (assault by a life prisoner) for personal use of a deadly weapon, and otherwise
affirm the judgment.
                                     I. FACTS

       A. Guilt Phase

            1. Prosecution Case

               a. Fatal Attack on Daniel Addis (Counts 1 and 2)
       In August 1997, defendant and the homicide victim, Daniel Addis, were
inmates at the California Institution for Men in Chino and housed in the
administrative segregation unit (ASU). That housing unit is reserved for inmates
who present safety or management concerns, including inmates awaiting
adjudication for violations of prison rules. Defendant, who was serving a sentence
of 25 years to life under the “Three Strikes law”, was a member of a White
supremacist gang called the Nazi Lowriders (NLR), as was his cellmate Gary
Green. Defendant and Green were housed on tier 3 of ASU.
       Addis, who was not a gang member, had been placed in ASU for assaulting
a staff member. He had previously been housed on tier 3, but in July, he had
asked to be moved to another tier. He told the guard to whom he made the request
that he had stolen tobacco from NLR gang members. Commission of this offense
by one who was not a member of the gang would have resulted in retaliation from
the gang. Addis was moved off tier 3 and eventually housed in a single cell on tier
1 of ASU.
       Although Addis was housed on a tier different from defendant and other
NLR members, he exercised in the same yard, one of four that were segregated by
race and gang affiliation. The procedure for moving inmates from their cells to
the exercise yards involved stringent security protocols. The yard was searched
for weapons before any inmate was allowed to enter. In addition, the inmates


                                         2
were subjected to repeated searches before they were allowed into the yard. These
included a visual strip search in their cells, passing through a metal detector, a
hand search of their person and effects and a final search by a hand-held metal
detector before they were admitted to the yard one at a time. As part of the strip
search, they were required to squat and cough to determine if they were trying to
smuggle contraband in their rectums. Once allowed into the yard, inmates were
required to line up against the fence until all inmates were in the yard.
Correctional officers in the guard tower could observe all four exercise yards.
       On Sunday, August 3, 1997, all of the White inmates, except Addis, had
entered their exercise yard. Defendant‟s cellmate, Gary Green, who was a “shot
caller” and leader of the NLR gang, started yelling at the gate guard, Rosamaria
Maldonado, to let Addis out into the yard. Inmates were subject to monthly
classification reviews to determine, among other matters, whether they were
eligible for the yard. If they were eligible, each decided whether to avail himself
of the yard privilege. Addis was eligible to go into the yard and had done so the
previous Thursday without incident.
       Maldonado went to her superior, Sergeant Arioma Sams, and told him the
other inmates were demanding that Addis be brought out into the yard. Sams
testified that he checked the yard for unusual activity but did not observe any.
Timothy Ginn, another guard on duty that day, testified he told Sams that if Addis
went out into the yard he might get “beat up.” Sams replied that their hands were
tied because Addis had a right to go into the yard if he wanted to. Ginn told Addis
“you don‟t have to go if you don‟t want to.” Addis replied, “Fuck that. I want to
go.” Laramie McAlmond, another guard, testified that she overheard Ginn‟s
conversation with Addis and confirmed that Addis said he wanted to go out to the
yard. She testified that Addis said, “Everything‟s squashed,” which is prison slang
for everything is settled and there are no problems.

                                          3
        Addis was released into the yard at 9:30 or 9:45 a.m., about 30 to 45
minutes after defendant and Green had entered the yard. Officer Frank Esqueda,
one of the two tower guards on duty, testified that Addis joined the other inmates
in exercises, and then walked around and talked to a few inmates. Esqueda
observed Green and defendant walking back and forth and talking, but despite the
fact that Green had demanded that Addis be brought out, Green initially ignored
Addis. Green acknowledged Addis at 11:15 a.m., when the showers typically
were turned on. Green and Addis were standing by the showers, and Green shook
his hand and told him, “It‟s all right, Danny. Go ahead and play cards.” Addis
then walked to a card table and sat down to play pinochle with other inmates.
About 10 or 15 minutes later, Green and defendant walked from the showers to the
table, talking back and forth. When they arrived at the table, defendant stood to
the left of Addis, and Green stood to the left of defendant. One or two minutes
later, Esqueda saw defendant make a sudden movement with his left hand to
Addis‟s neck.
        Another inmate, Ricky Rogers, who was playing at the same table, also
observed defendant approach and stand behind Addis. Rogers testified that
defendant and Addis had a friendly conversation about a third inmate. Rogers saw
defendant raise his arm “real fast,” and then heard a sound like a punch. Addis
stood up from the table and put his hand to his neck. When he pulled his hand
away, blood was streaming from his neck. He dropped to his knees and then fell
over.
        From the tower, Officer Esqueda also saw Addis reach for his neck and saw
blood flowing from it. Esqueda ordered the inmates in the yard to get down on the
ground. Everyone complied except defendant and Green, who continued running
across the yard. Defendant and Green complied only after Esqueda fired a “gas
launcher” that shot a wooden baton block into the yard. When defendant went on

                                          4
the ground, a weapon popped out of his left hand and landed in front of him. At
trial, the weapon was described as a stabbing instrument consisting of a sharpened
piece of metal covered by a sheath made from cellophane and cardboard and
wrapped with string.
       Addis was removed from the yard bleeding profusely, and died en route to
the hospital. An autopsy established the cause of death was massive blood loss
caused by the severance of his jugular and subclavian veins. A great deal of force
was required to inflict the fatal wound.
       After Addis was removed from the yard, correctional officers cleared it of
the inmates one at a time. The inmates remained prone until they were removed.
Defendant‟s left hand and the stabbing instrument found near his hand were
bloody. Defendant was giggling and laughing as he lay on the ground. Later he
was examined and photographed. He had blood on his left hand and boxer shorts,
but was uninjured. The stabbing instrument recovered near defendant was
consistent with a weapon that would inflict the fatal wound Addis received.
       Ten days after defendant attacked Addis, he threatened to flood the tier
where he was housed unless he was moved. The officer to whom he made the
statement told him he could not be moved because of the ongoing investigation
into Addis‟s killing. Defendant replied, “I killed him so I confess. The
investigation is over.”
       Defendant wrote two letters, one dated September 9, 1997, and the other
September 22, 1997, to Joseph Lowery, another NLR member imprisoned at
Corcoran State Prison. Glen Willett, a prison gang expert testified that
defendant‟s use of certain phrases identified him as an NLR gang member and that
other references were to the Addis homicide. The letters are described more fully
below in connection with defendant‟s challenge to the letters‟ admission into
evidence. (See post, pp. 34-40.)

                                           5
               b. Attack on Joseph Matthews (Count 3)
       On September 18, 1997, Officers Lourenco and Perez were escorting
inmate Joseph Matthews from the showers to his cell when defendant called out
from his cell, “Joe, want a cigarette.” Matthews broke away from the officers and
ran toward defendant‟s cell. Matthews, whose hands were cuffed behind his back,
turned his back toward defendant‟s cell door and put his hands at the porthole
opening of the door, reaching for something. Neither officer saw any object being
transferred. A moment later, Matthews stepped away and said, “I‟m cut.”
Matthews‟s back was bleeding from a deep gash 7 to 8 inches long and three-
quarters of an inch wide. Within seconds after Matthews stepped away from the
cell door, the officers heard the sound of defendant flushing the toilet. It was
impossible to retrieve items flushed down the toilet, but Jeffrey Killian, a medical
technician on the floor, testified that Matthews‟s wound was inflicted with a razor.
Fourteen stitches were required to close Matthews‟s wound. Three weeks after the
attack, Matthews told an investigator that defendant had pulled out a razor blade
attached to a toothbrush which he used to attack Matthews, and then flushed the
razor down the toilet.

               c. Custodial Possession of a Weapon (Count 4)
       On October 15, 1997, officers entered defendant‟s cell, of which he was the
sole occupant, to allow him out of the tier to exercise. When Officer Lopez
opened defendant‟s cell door, a sharp metal object fell to the floor. Defendant
smiled and shrugged. The object was a one-inch long piece of metal, shaped like a
dagger and known in prison as a “spearhead.” In a subsequent search of the cell,
officers also recovered a razor blade that had been removed from the disposable
razors given to inmates for shaving.




                                          6
               2. Defense Case
       The defense conceded defendant‟s guilt on counts 3 and 4, the attack on
Matthews and the possession of a weapon, and focused its efforts on counts 1
and 2, the killing of Addis. With respect to the attack on Addis, the defense
argued that defendant acted out of duress because he himself would have been
killed if he had not attacked Addis as ordered by Green and the NLR. As a
corollary, he maintained that the prison guards knew Addis was going to be
attacked and allowed it to happen in retaliation for Addis‟s assault on a prison
guard, thus foreclosing defendant from obtaining protection from prison
authorities. Defendant sought to establish his defense through the testimony of
Officer Rosamaria Maldonado, the guard who had expressed concern about
Addis‟s safety to Sergeant Sams, and two prison experts. Defendant himself did
not testify.
       By the time Rosamaria Maldonado testified, she had left the Department of
Corrections after filing a stress claim seeking workers‟ compensation benefits. In
that claim, she cited the Addis killing, among other incidents, as contributing to
her stress. With respect to the events of August 3, 1997, she testified that Green
had been insistent that Addis come out to the yard. She thought Addis might have
safety issues if he went out to the yard, and she told Addis, “You must be packing
for them because they‟re dying to see you.” By this, she meant that Addis must be
concealing drugs or weapons. He looked at her and smiled and she let him out
into the yard. After releasing Addis into the yard, Maldonado observed that Green
merely nodded and did not greet Addis as he usually did, with a hug and a kiss.
When Maldonado walked back into the building, she told Sergeant Sams, “You
know, Sarge, they‟re going to take him out.” Sams responded, “Come on, we got
a lot of work to do.” She and Sams left the area to conduct cell searches. About
two hours later, she heard a gas launcher in the exercise yard. She was one of the


                                          7
officers who responded to the yard to help Addis. In addition, after he was carried
out of the yard on a stretcher, she rode in the ambulance with him. Addis died as
she was performing CPR on him.
       At trial, Maldonado denied the existence of any conspiracy between the
guards and Green to kill Addis, and denied that her fear for Addis‟s safety was
anything other than a “gut feeling.” She had previously been unaware that Addis
had been placed in ASU because he had hit a guard. However, according to Dr.
David Friedman, from whom she sought counseling, Maldonado told him that they
knew “an inmate was to be killed. We all knew it. I told the supervisor that he
would be killed if we let him out of his cell.” She also told Dr. Friedman that she
had told her sergeant, “They are going to kill him.”
       Confronted with these statements at trial, Maldonado claimed that
Dr. Friedman had paraphrased what she told him, and that she did not make the
statements he attributed to her. She denied telling him “I tried to stop it,” or that
“They killed him because they thought he was giving information to us, which he
was. He used to talk to [Officer] Kaffenberger a lot.” She similarly testified that
statements attributed to her by Dr. Donald Feldman, who examined her in
connection with her workers‟ compensation claim, were also paraphrases. In the
statements attributed to her by Dr. Feldman, she allegedly said she had told
Sergeant Sams an inmate was likely to be killed if they let him out of his cell, and
that Sams had shrugged.
       The defense also called as a witness James Gleisinger, who assisted
Freidman in worker‟s compensation evaluations. Gleisinger testified that he
interviewed Maldonado and set forth in his report Maldonado‟s verbatim
statements to him. Among the statements in his report were: “ „She recalls “the
most dramatic thing was about 18 months ago an inmate was to be killed. We all
knew it. I told the supervisor that he would be killed if we let him out of his

                                           8
cell,” ‟ ” and “ „ “That inmate was let out even though everyone knew he would be
killed if he was let out. I tried to stop it. That could open up a big can of worms.
I told my sergeant that they‟re going to kill him. [¶] „She states that Sergeant
Sams “shrugged his shoulders.” ‟ ”
       Two prison experts testified for the defense. Steven Rigg, a 17-year
veteran of the Department of Corrections, from which he had retired in 1998 as an
acting captain, reviewed materials relevant to the attack on Addis and testified that
the guards had repeatedly mishandled the situation. In Rigg‟s opinion, Green
should have been removed from the yard and disciplined for causing a disturbance
by demanding that Addis be brought out. Rigg also testified that the guards
should have known Green‟s demand that Addis be brought to the yard indicated
trouble because Addis was not an NLR member and had been moved to a different
tier under circumstances that showed he was in trouble with the NLR. The fact
that Addis had stolen tobacco and “rolled off the tier” put him at risk. Rigg
testified that once Maldonado informed Sergeant Sams that “they‟re going to take
him out,” the tower guard should have been instructed to remove Addis from the
yard. According to Rigg, the fact that Addis was yard eligible should not have
prevented Sams from removing him from the yard once he received information
that Addis might be assaulted or killed. Rigg further testified that Green‟s initial
failure to greet Addis, followed by his attempt to engage him, showed a “setup.”
Under those circumstances, the tower guard should have ordered the inmates to
the ground and searched for weapons when he saw Green and defendant approach
Addis as he was playing cards.
       Rigg also testified about prison gangs generally. According to Rigg, if a
gang member received an order from a gang leader to carry out an assault, he was
expected to do so. If he failed, the inmate would put himself at risk to be assaulted
or killed. Further, after carrying out the assault, the gang would expect the inmate

                                          9
not to show any concern for the victim. To do so would be considered a sign of
weakness.
       Applying these observations to defendant‟s situation, Rigg opined that, had
defendant failed to assault Addis, he would have been “a walking dead man.” He
could not have obtained assistance from the correctional staff without requesting
protective custody, and even in protective custody, inmates have been assaulted
and killed. Moreover, Rigg testified, the sequence of events showed that Sergeant
Sams “possibly wanted [Addis] assaulted,” in that Sams failed to take action to
protect Addis. Furthermore, the light administrative punishment imposed on
Green for his involvement in the attack — a 360-day credit loss without a term in
ASU — showed, in effect, that the Department of Corrections “did not punish him
for being involved in the conspiracy as charged, yet they found him guilty.”2
       Anthony L. Casas also testified as a prison expert. Casas had worked for
over 22 years in the Department of Corrections, retiring as associate warden at San
Quentin. He was particularly involved in dealing with prison gangs. Casas
testified that inmates become involved in prison gangs in various ways. A gang
may offer a new inmate protection in return for which the inmate will be expected
to do the gang‟s bidding. If the inmate refuses, the gang will tell him he cannot
disrespect the gang after it helped him. While some inmates who are big and

2       Sergeant Sams accused Green of involvement in a conspiracy to assault
Addis, and of ordering the “hit” on Addis. The hearing officer found the
allegations to be true. On Ocrober 10, 1997, Green was given a warning and a
reprimand, and was assessed 360 days of credit. He was also referred to the
institutional classification committee for a program review and to the Bureau of
Prison Terms (now Board of Parole Hearings) regarding his rule violation.
Sergeant Sams did not recommend that Green be given a term in a security
housing unit or any other special type of confinement. Green was paroled on
October 30, 1997, 20 days after this punishment was imposed.




                                         10
strong may be able to avoid gangs, someone like defendant, who is five feet six
inches tall, and then weighed 150 pounds, might need the gang‟s protection.
Additionally, an inmate serving a long prison term will do what he can to be
protected in prison.
          Casas testified that with most gangs, the only way out is death. If a gang
orders a member to commit a crime and he fails to do so, “[h]e can easily be
killed. As a matter of fact, in most cases where your gangs are disciplined enough,
that‟s precisely what happens . . . . You follow or you‟re gone.” Once an inmate
has carried out an order to commit an assault, he is expected to show pride and
brag about the crime. Any show of regret would be seen as a sign of weakness,
and the inmate could be thrown out of the gang or killed. Casas testified further
that inmates observe staff. Based on his review of how staff handled Addis, Casas
opined that an inmate would have concluded it was useless to rely on staff for
safety.
          Like Rigg, Casas criticized the staff‟s handling of the situation in this case.
He agreed that once Sams had been warned by Maldonado about the danger to
Addis, Addis and Green should have been removed from the yard and an
investigation should have been conducted. Like Rigg, Casas testified that Addis‟s
yard eligibility would not have prevented Sams from removing him from the yard
once Sams learned of the threat to Addis‟s safety.

          B. Penalty Phase

              1. Prosecution Case
          The prosecution‟s penalty case in aggravation relied on multiple incidents
of prior criminal activity by defendant involving “the use or attempted use of force
or violence or the express or implied threat to use force or violence.” (§ 190.3,
factor (b).) To that end, the prosecution presented evidence that, while in prison,



                                             11
defendant had committed multiple stabbings and attempted stabbings, and assaults
on staff. It also presented evidence of numerous instances of assault and of
possession of a weapon, all of them independent of those in the current case,
including eight occasions on which he possessed a weapon, four instances of
stabbing another inmate and one attempted stabbing of another inmate, a battery
on an officer, and an assault on a staff member.
       Additionally, the prosecutor‟s cross-examination of a defense witness
brought out details of defendant‟s juvenile criminal record, which included two
theft-related charges. The same witness also testified that when defendant was 19
years old, he pleaded guilty to three counts of residential burglary, one count of
second degree burglary, and one count of grand theft of an automobile. In the
same proceeding, six other theft-related counts were dismissed. Defendant was
committed to the California Youth Authority for these offenses. The jury also
heard about defendant‟s plea to one count of escape from the California Youth
Authority, after which he was transferred to an adult prison.

           2. Defense Case
       As described by defendant in his appellate briefing, the defense case in
mitigation “chronicled [defendant‟s] physical, sexual, and mental abuse as a child
and the long-term consequences of those experiences, including posttraumatic
stress disorder, multiple suicide attempts, schizoid personality disorder and bipolar
disorder. [Defendant] also presented evidence that his criminal activity in state
prison resulted from the denial of adequate mental health care and treatment by
prison staff.”
       Testimony regarding defendant‟s family history was provided by his two
maternal aunts, his maternal grandparents and his father. Both of defendant‟s
parents were deaf. His mother, Linda, was described as having severe “mental



                                         12
problems” that manifested themselves in the out-of-control behavior she displayed
beginning in adolescence. For example, between the ages of 11 and 13, she set “a
lot” of fires, including to the garage and to curtains in the living room. She once
threatened one of her sisters with a knife. Later, she attacked a pregnant neighbor
with a knife while the woman was showering and her husband was mowing the
lawn. After that incident, she was removed from her parents‟ home and lived in a
series of foster homes.
       Linda married Gary Landry when she was 20 or 21. Their marriage was
marked by constant fighting over what Gary perceived as Linda‟s deficiencies as a
wife and a mother. When Gary learned that Linda was having affairs with women,
he painted “bad wife” and “bad mother” on the walls of their residence. Linda
drew graphic pictures of women having sex with each other on the walls above
defendant‟s crib.
       Neither parent nurtured or provided the basic necessities to defendant when
he was an infant and toddler. Gary was a hard worker, but when he got home
from work, he ignored defendant and instead spent time with his friends in the
garage. Linda was a drug user and extremely neglectful mother. When members
of her family would visit, they would discover defendant alone in his play pen,
hoarse from crying and yelling. No one had responded to his cries. Linda‟s
family installed a light-flickering system to alert her when defendant was crying.
The house was filthy and defendant crawled on a floor littered with broken glass
and curdled milk. When he was old enough to walk, defendant would get out of
his crib and wander the neighborhood. His grandparents, who lived nearby, once
discovered him asleep beneath their car. Another time, he was found scavenging
for food in the neighbor‟s garbage cans.
       When defendant was four years old, he went to live with his grandparents.
A year later, his mother regained custody, but a few months later she returned him

                                           13
to her parents permanently. When defendant first went to live with his
grandparents, he did not talk, but grunted and pointed. He had nightmares and
hoarded food beneath his bed. When he returned to his grandparents, they took
him to mental health professionals because he seemed inaccessible. He continued
to receive psychiatric care, including hospitalization, throughout his childhood and
adolescence.
         Nonetheless, defendant had problems outside the home, starting with being
disruptive in kindergarten. He was repeatedly suspended in high school. At 15
years old, he and a friend burglarized the friend‟s house. When he was 16 or 17
years old, he stole a car, after which he entered the juvenile justice system and
never again lived with his grandparents. He spent the rest of his adolescence at
various juvenile camps from which he periodically attempted to escape. During
this period, defendant was diagnosed as suffering from atypical depression and
attention deficit hyperactivity disorder, for which he was medicated. It also
emerged during his interviews with mental health professionals that he had been
sexually abused by his father‟s best friend and by a friend of his mother‟s.
Defendant was described by these mental health professionals as depressed and
suicidal. All of these issues were related to the trauma he suffered in his first four
years.
         Defendant‟s adult criminal history began when, at 19 years old, he pleaded
guilty to three counts of theft-related first degree residential burglary, one count of
grand theft auto, and one count of second degree commercial burglary. In lieu of
prison, he was sent to the California Youth Authority where he was evaluated by
James Cueva, a casework specialist, who testified at defendant‟s trial. According
to Cuevas, defendant was depressed and suicidal, and had no goals, plans, or
expectations for life. Cuevas recommended intensive treatment for defendant to
address his severe mental and emotional problems.

                                          14
       Dr. Joseph Lantz, a clinical psychologist, interviewed and tested defendant.
He reviewed statements by defendant‟s aunts and spoke to his grandparents.
Lantz testified that defendant‟s early years were akin to those of “a feral child,”
and produced the mental problems that plagued him into adulthood. He diagnosed
defendant as suffering from “schizoid personality disorder,” which is characterized
by a “marked detachment from relationships.” Victims of this disorder prefer
solitude to human contact and are easily manipulated by other people. Lantz
testified that, despite defendant‟s history, he was not “a character[o]logically
violent person.”
       Dr. Frank Gawin, a psychiatrist, reviewed defendant‟s medical records and
concluded that defendant suffered from bipolar disorder. He testified that prison
officials were well aware that defendant suffered from this disorder as well as
other emotional and psychological problems. Both defendant‟s grandmother and
defendant himself had written to prison officials and elected officials requesting
treatment for his mental health issues. According to Gawin, any treatment
defendant received was “entirely inadequate.”
       Dr. Glenn Lipson, a forensic psychologist, testified about inmate mental
health services in general, as well as defendant‟s particular case. He met with
defendant and also reviewed records related to his mental health and treatment in
custody. Lipson concluded defendant suffered from schizoid personality disorder
and bipolar disorder. He testified that prison aggravated defendant‟s mental
disease, and he attributed defendant‟s acts of violence in prison to the “diathesis-
stress model” of behavior, i.e., the violent and stressful atmosphere of
incarceration pushed defendant, who already suffered from mental illness, “over
the edge.” Based on his review of defendant‟s prison records, Lipson testified that
the treatment defendant received failed to meet the standards required for inmate
mental health services.

                                          15
       Finally, Anthony Casas, who had testified at the guilt phase, returned at the
penalty phase to testify about conditions at Calipatria State Prison where
defendant‟s first violent actions occurred. He testified that prison was staffed by
inexperienced guards and less-than-qualified supervisors. The prison developed a
reputation as being violent and out of control. Casas also testified that in 2000 he
attempted to broker a deal in which defendant would provide information about
the NLR to prison officials, but the officials concluded his information was stale.
A similar deal with the Federal Bureau of Investigation failed to materialize
because the San Bernardino District Attorney declined to participate.
                             II. GUILT PHASE CLAIMS

       A. Review of Sealed Records

           1. Introduction
       Defendant requests that this court review certain records to which the trial
court denied him access in whole or in part following an in camera review, and
determine whether the trial court abused its discretion in denying him discovery of
those records. The records fall into three categories: (1) the confidential
correctional inmate files maintained by the Department of Corrections for Daniel
Addis, Gary Green and defendant himself (the C-files); (2) the personnel files of
Correctional Officers Esqueda, Sams and Maldonado; and (3) additional medical
and personnel files of Officer Maldonado pertaining to her medical retirement
from the Department of Corrections.

           2. Background

               a. C-files
       Before trial, defendant served a subpoena duces tecum on the Department
of Corrections, in which he sought his own C-file. (§ 1326.) Thereafter, he filed a
pretrial motion for discovery in which he requested, among other things, the C-


                                         16
files for Green and Addis. (§ 1054 et seq.) Defendant argued that discovery of the
C-files was necessary for him to determine whether the hearing officer who
conducted Green‟s rules violation hearing arising out of his participation in the
assault on Addis had relied upon “undisclosed sources.” He contended the files
might (1) contain information to support his duress defense; (2) lead to evidence
that correctional staff knew, or should have known, about the attack on Addis; and
(3) disclose whether there were any internal investigations regarding the attack on
Addis and if any correctional staff had been disciplined as a result of such
investigations.
       The Attorney General, representing the Custodian of Records for California
State Prison at Corcoran, moved to quash the subpoena or, alternatively, for the
court to conduct an in camera hearing to determine whether the files should be
disclosed. The Attorney General argued that the files were presumptively
privileged, and disclosure of them would be contrary to the public interest. (See
Evid. Code, § 1040, subd. (b)(2) [a public entity may refuse to disclose
confidential information if “[d]isclosure of the information is against the public
interest because there is a necessity for preserving the confidentiality of the
information that outweighs the necessity for disclosure in the interest of justice”].)
He asserted the discovery request was overbroad, and cited the need to protect
individuals, such as informants, who would be endangered if their identities were
disclosed. He further noted that if informants‟ identities were not kept
confidential, inmates would be reluctant to cooperate in investigations. Finally, he
urged that to protect the privacy rights of prisoners, confidential information
regarding prisoners should not be released indiscriminately.
       The trial court agreed to examine the three C-files in camera before trial to
determine what, if anything, in them was discoverable. Following its review, the
court granted defendant partial access to all three C-files, most extensively those

                                          17
of Green, and to a lesser extent, defendant‟s own file. It disclosed a single page of
Addis‟s file. During trial, defendant renewed his request to examine Addis‟s file
after the prosecution turned over to him an incident report detailing Addis‟s
assault on a correctional officer. The trial court denied the request.

                b. Officer Personnel Records
       By subpoena duces tecum and an accompanying discovery motion,
defendant sought the personnel files of 14 correctional officers. Defendant sought
material from the files reflecting: (1) lack of credibility;
(2) “dishonesty/untruthfulness/veracity/false arrest/conduct unbecoming an
officer/neglect of duty”; and (3) acts of moral turpitude. The Attorney General,
representing the California Department of Corrections, moved to quash the
subpoena. The trial court preliminarily granted the discovery motion as to
Officers Esqueda and Maldonado and Sergeant Sams. It denied the request for the
personnel files of the remaining 11 officers based on defendant‟s failure to meet
the threshold requirement of good cause for disclosure of police personnel records.
(See Evid. Code, § 1043, subd. (b)(2); Garcia v. Superior Court (2007) 42 Cal.4th
63, 70-71.)3 The trial court later reviewed the personnel files of Esqueda,
Maldonado and Sams and concluded they contained no discoverable material.

                c. Records Related to Officer Maldonado’s Retirement
       After the trial had commenced, the prosecutor informed defense counsel
that Officer Maldonado had retired a year after the assault on Addis because of
“significant emotional and mental health issues” arising from her involvement in
that incident. Defendant then served subpoenas on the State Compensation

3      On appeal, defendant does not argue the trial court erred in concluding he
had failed to show good cause for the personnel records of the other 11 officers.




                                          18
Insurance Fund (SCIF) and the California Institution for Men (CIM), seeking
records related to Maldonado‟s retirement from the Department of Corrections.
The Attorney General, representing the California Department of Corrections,
opposed the discovery request, arguing that the records were part of Maldonado‟s
police personnel files as to which the court had already found no discoverable
material.
       The trial court conducted a hearing on the motion. It stated it had received
records from SCIF and CIM related to Maldonado‟s retirement. Additionally, the
records of Dr. Friedman, the psychiatrist who examined Maldonado in connection
with her retirement, were produced by Dr. Friedman in response to a defense
subpoena. Following an in camera review of the records, the court allowed
counsel for both parties to copy any records from the Friedman file they found
relevant. It denied the discovery motion as to the SCIF and CIM records, finding
there was nothing relevant in those records that was not also contained in the
Friedman file. Defendant later sought to discover records of an investigation into
Maldonado‟s workers‟ compensation claim made by an entity called Singleton
Investigations at the request of the SCIF. The trial court reviewed the records and
found nothing discoverable.

            3. Discussion
       Evidence Code section 1040, subdivision (b)(2), authorizes the trial court to
decline to disclose confidential records maintained by a public entity when it finds
“the necessity for preserving the confidentiality of the information . . . outweighs
the necessity for disclosure in the interest of justice.” (See People v. Suff (2014)
58 Cal.4th 1013, 1059; People v. Avila (2006) 38 Cal.4th 491, 606.) This
provision is applicable to prison inmate records. (Ochoa v. Superior Court (2011)
199 Cal.App.4th 1274, 1281.) As the Ochoa court observed, the state has a valid



                                          19
interest in maintaining the confidentiality of such records to “(1) protect
individuals, including informants inside and outside of prison, (2) ensure
institutional security, and (3) encourage candor and complete disclosure of
information concerning inmates from both public officials and private citizens.”
(Id. at p. 1280.) In addition, disclosure of police personnel records requires a
threshold showing of good cause after which the trial court “screen[s] law
enforcement personnel files in camera for evidence that may be relevant to a
criminal defendant‟s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225.)
In either case, the trial court‟s ruling is reviewed for abuse of discretion. (Avila, at
p. 607 [no abuse of discretion where trial court withheld access to a witness‟s
parole records]; People v. Hughes (2002) 27 Cal.4th 287, 330 [“A trial court‟s
ruling on a motion for access to law enforcement personnel records is subject to
review for abuse of discretion”].)
       Defendant asks that we review all records not disclosed to him by the trial
court — the C-file records of defendant, Addis and Green, the personnel records
of Officers Esqueda and Maldonado and Sergeant Sams, and the files of SCIF,
CIM and Singleton Investigations related to Maldonado‟s retirement — and assess
whether the trial court‟s rulings were proper. “Parties who challenge on appeal
trial court orders withholding information as privileged or otherwise
nondiscoverable „must do the best they can with the information they have, and
the appellate court will fill the gap by objectively reviewing the whole record.‟ ”
(People v. Price (1991) 1 Cal.4th 324, 493.) We have reviewed the record and
conclude that the trial court did not abuse its discretion in rejecting disclosure of
the materials.
       We also conclude that the trial court‟s inadvertent failure to provide
defendant with one document from Addis‟s C-file did not require the court to
allow defendant to review Addis‟s entire C-file. As noted above, during trial,

                                          20
defendant renewed his request for access to Addis‟s file after the prosecution
turned over to the defense an incident report regarding Addis‟s assault on a
correctional officer. According to the prosecution, it had obtained the document
from the person who investigated the assault by Addis, but the prosecution
apparently did not realize the document was relevant until it heard defendant‟s
opening statement, which reflected a theory that correctional officers were
complicit in the attack on Addis. Because the trial court had also failed to disclose
the document, the defense asked to be allowed to review Addis‟s entire C-file to
see if it contained other relevant documents. The trial court responded that it had
reviewed the file two more times, “page by page,” and had discovered that the
incident report at issue had been attached to a different report that involved a
different incident. The court further stated that it found no other documents that
were discoverable, and it denied defendant‟s request. We find no abuse of
discretion in the court‟s decision and, as noted above, we have reviewed the file
and found no discoverable documents.
       Finally, defendant requests that the court allow appellate counsel to review
Addis‟s C-file in accordance with appellate counsel‟s duty to “preserve evidence
that comes to the attention of appellate counsel if that evidence appears relevant to
a potential habeas corpus investigation.” (Cal. Supreme Ct., Supreme Court
Policies Regarding Cases Arising from Judgments of Death (2008) policy 3, std.
1-1.) We decline his request. The files are preserved in the appellate record.

       B. Denial of Motion to Sever Counts
       Defendant contends the trial court abused its discretion in denying his
motion to sever counts 1 and 2 (the attack on Addis) from counts 3 (the attack on
Matthews) and 4 (possession of a weapon by an inmate). He further contends the
denial of severance violated his rights to due process, a fair trial, a trial by jury,



                                           21
and reliable capital case proceedings. (U.S. Const., 5th, 6th, 8th, & 14th Amends.;
Cal. Const., art. I, §§ 7, subd. (a), 15, 16, & 17.) His contentions are without
merit.
         In the trial court, defendant argued that separate trials were required
because (1) there was an absence of cross-admissible evidence between counts 1
and 2 (the killing of Addis) and counts 3 and 4 (the attack on Matthews and the
custodial possession of a weapon); (2) the evidence supporting counts 3 and 4 was
weaker than the evidence supporting counts 1 and 2; (3) consolidation would
inhibit defendant‟s willingness to testify with respect to counts 1 and 2; (4) the
Eighth Amendment required heightened scrutiny of joinder because counts 1 and 2
rendered him death eligible; and (5) judicial economy would be served by separate
trials because counts 3 and 4 involved distinct incidents and distinct evidence. At
defendant‟s request, the trial court also considered an in camera offer of proof
regarding defendant‟s testimony and how consolidation might affect his
willingness to testify.
         In denying the motion, the trial court found that defendant had failed to
make an adequate showing of a substantial danger of prejudice. The court found
further that “the four charges involved conduct by the defendant while in prison in
the California Institution for Men within a two-month period. Each occurred at
[the] Palm Hall unit of [the] California Institute for Men. [¶] The offenses are of
the same class of crime, either assaultive conduct by a prisoner or the possession
of a prison-made weapon necessary to commit similar assaults. Each of the
offenses involved prison-made weapons. Each of the assaults [was] committed
with prison-made weapons against fellow prisoners. None of the charges appear
to be weak in relation to the other. And the prejudice to the defendant would be
small.”



                                           22
       The joinder of charges is addressed in section 954: “An accusatory
pleading may charge two or more different offenses connected together in their
commission . . . or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . ; provided, that the court in which a case is
triable, in the interests of justice and for good cause shown, may in its discretion
order that the different offenses or counts set forth in the accusatory pleading be
tried separately or divided into two or more groups and each of said groups tried
separately.” The legislative preference for consolidation under either of the two
circumstances set forth in section 954 is intended to promote judicial efficiency.
(People v. Capistrano (2014) 59 Cal.4th 830, 851.)
       Defendant presents two theories of error. First, he contends count 4 was
not properly joined with the first three counts because count 4, custodial
possession of a weapon, did not involve assaultive conduct, and therefore was not
of the same class as count 1 (premeditated murder) and counts 2 and 3 (assault by
a life prisoner). Second, he contends the trial court abused its discretion in
declining to sever counts 1 and 2, which arose from the assault on Addis, from
counts 3 and 4, which arose from the assault on Matthews and the possession of a
weapon.
       Joinder of the four counts was proper because the counts were all of the
same class. “Offenses of the same class are offenses which possess common
characteristics or attributes.” (People v. Smallwood (1986) 42 Cal.3d 415, 424,
fn. 5; see People v. Kemp (1961) 55 Cal.2d 458, 476.) With respect to the joinder
of count 4 to the other counts, the trial court noted that all four offenses occurred
in the custodial context and involved a prison-made weapon. In addition, sections
4500 (assault by a life prisoner) and 4502 (custodial possession of a weapon) serve
an identical purpose — to prevent assaults by armed prisoners on prison staff and
other inmates. (See People v. Custodio (1999) 73 Cal.App.4th 807, 812 [“By

                                          23
prohibiting prison inmates from possessing any instrument or weapon of the kind
specified in the statute, section 4502, subdivision (a) is intended to protect inmates
and correctional staff „from the peril of assaults with dangerous weapons
perpetrated by armed prisoners‟ ”]; People v. Superior Court (Gaulden) (1977) 66
Cal.App.3d 773, 778 [“Section 4500 was enacted for the purpose of promoting
prison safety by discouraging assaults by prison inmates”].) Therefore, despite the
fact that section 4502 does not require an intent to use the weapon (People v.
Rodriguez (1975) 50 Cal.App.3d 389, 395), that offense as charged shares
common characteristics with the assaultive offenses charged in this case, and is,
therefore, of the same class.
       Joinder was also proper because the offenses were “connected together in
their commission.” (§ 954.) “[O]ffenses which are committed at different times
and places against different victims are nevertheless „connected together in their
commission‟ when they are, as here, linked by a „ “common element of substantial
importance.” ‟ [Citations.]” (People v. Lucky (1988) 45 Cal.3d 259, 276.) Here,
the common thread among all four offenses is the use or possession by defendant
of a prison-made stabbing weapon. Defendant contends the common element
factor requires that the same weapon be involved in each crime. We rejected a
similar argument in Alcala v. Superior Court (2008) 43 Cal.4th 1205, in which the
defendant claimed “only physical or objectively measurable factors, such as use of
a specific individual weapon, can suffice” to establish the common element factor.
(Id. at p. 1220.)
       Accordingly, we conclude that count 4 was properly joined with the other
three offenses under section 954.
       In addition, because the evidence that defendant committed count 4 was
strong and stood on its own without reference to the remaining counts, the
evidence related to the other counts would not have improperly bolstered the

                                         24
evidence pertaining to count 4. In light of the strength of the evidence related to
each charge, “we cannot conclude that it is reasonably probable an outcome more
favorable to defendant would have resulted” (People v. McLain (1988) 46 Cal.3d
97, 106) if count 4 had not been joined with the other counts. For the same reason,
any misjoinder did not result in such gross unfairness as to deprive defendant of
his right to due process. (People v. Soper (2009) 45 Cal.4th 759, 784 [“Appellate
courts have found „ “no prejudicial effect from joinder when the evidence of each
crime is simple and distinct, even though such evidence might not have been
admissible in separate trials” ‟ ”].)
       As noted, defendant also contends the trial court abused its discretion by
not severing counts 3 and 4 from counts 1 and 2. When charges are properly
joined, a “ „ “defendant must make a clear showing of prejudice to establish that
the trial court abused its discretion in denying defendant‟s severance motion.” ‟
[Citation.] That is, defendant must demonstrate the denial of his motion exceeded
the bounds of reason.” (People v. Capistrano, supra, 59 Cal.4th at p. 848.)
“ „Refusal to sever may be an abuse of discretion where (1) evidence of the crimes
to be jointly tried would not be cross-admissible in separate trials; (2) certain of
the charges are unusually likely to inflame the jury against the defendant; (3) a
“weak” case has been joined with a “strong” case or with another “weak” case, so
that the “spillover” effect of aggregate evidence on several charges might well
alter the outcome of some or all of the charges; and (4) any one of the charges
carries the death penalty or joinder of them turns the matter into a capital case.‟ ”
(People v. Romero and Self (2015) 62 Cal.4th 1, 30.) Even if a defendant fails to
demonstrate the trial court‟s joinder ruling was an abuse of discretion when it was
made, reversal may nonetheless be required if the defendant can demonstrate that
“the joint trial resulted in such gross unfairness as to amount to a due process
violation.” (Capistrano, at p. 853.)

                                          25
       Applying the four-part standard outlined above, defendant first contends
evidence was not cross-admissible among the four counts. The trial court did not
expressly refer to cross-admissibility in its ruling denying severance, but its
comments focused on the similarities among the counts — within a two and one-
half month period, while housed in the Palm Hall unit of the CIM, defendant
committed offenses involving prison-made weapons. As defendant acknowledges,
the trial court‟s ruling reflects the view that there was a common plan or scheme to
commit assaults with prison-made weapons.
       To be admissible to prove a common plan or scheme, evidence of other
misconduct “must demonstrate „not merely a similarity in the results, but such a
concurrence of common features that the various acts are naturally to be explained
as caused by a general plan of which they are the individual manifestations.‟ ”
(People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The first three counts involved
conduct to lull another inmate into a false sense of security followed by a surprise
attack with a prison-made weapon. The fact that the attack on Addis occurred in
the exercise yard in front of numerous witnesses and seemed to involve Green in
the plan, whereas the attack on Matthews occurred while defendant was alone in
his cell and with no participation by any other inmate, does not negate the
significant similarities. (See Alcala v. Superior Court, supra, 43 Cal.4th at
p. 1225 [the similarity required to admit evidence to prove a common plan “can be
met despite the existence of some factual differences between or among the
charged offenses”].) Thus, the trial court did not abuse its discretion in implicitly
finding the evidence in these three counts to be cross-admissible. Like the other
three counts, count four involved the possession of a prison-made stabbing
weapon. Therefore, the other counts were admissible to establish a common plan
to possess a prison-made weapon such as the sharpened metal object that fell to
the floor when the gate to defendant‟s cell was opened.

                                          26
       In addition, as defendant concedes, “even the complete absence of cross-
admissibility does not, by itself, demonstrate prejudice from a failure to order a
requested severance.” (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221.)
Rather, we look to the remaining three factors. (Ibid.) An examination of those
factors does not reveal an abuse of discretion.
       First, none of the joined charges was unusually likely to inflame the jury
against defendant. Defendant asserts the evidence of the attack on Matthews and
the possession of a weapon would lead the jury to infer improperly that defendant
“had a general disposition to violence,” and would “undercut his defense of duress
and staff complicity and/or negligence in the Addis homicide based on the facts
peculiar to that case.” The fact that evidence of two violent crimes might lead a
jury to infer that a defendant is violent does not establish that any of the charges
were unusually likely to inflame the jury. In addition, to the extent defendant‟s
attack on Matthews and his possession of a weapon tended to show he repeatedly
acted pursuant to a common plan rather than due to duress or negligence, or with
the complicity of staff, such inferences were proper.4 Finally, as explained below,
duress is not a defense to murder, nor does duress reduce murder to manslaughter.
(See post, pp. 42-49.)


4       Although it does not appear that the trial court was aware at the time it
ruled on the severance motion of what defenses, if any, defendant would present to
counts 3 and 4, we note, for purposes of evaluating whether the joint trial of these
charges resulted in gross unfairness, that the defense presented evidence at trial
that staff was complicit in the attack on Matthews. In particular, the defense
elicited testimony from Matthews that he thought the officers allowed him to go to
defendant‟s cell and “put [him] in a position for it to happen,” and it presented
expert testimony concerning how the officers should have escorted Matthews so
he could not get away from them. Also, as noted above, the defense ultimately
conceded guilt with respect to counts 3 and 4.




                                          27
       Second, counts 1 and 2 were not supported by evidence that was so
measurably stronger than the evidence supporting counts three and four that it
would likely have had an improper spillover effect on counts 3 and 4. Defendant
contends the evidence of the attack on Addis was stronger because there were
eyewitnesses to it, but the circumstantial evidence that he attacked Matthews was
just as strong. Defendant called him over, Matthews complied and turned his back
to the porthole of defendant‟s cell door, and then Matthews staggered away from
defendant‟s cell bleeding while guards heard defendant evidently flushing his
weapon down the toilet. Similarly, the discovery of a prison-made weapon in a
cell solely occupied by defendant constituted strong circumstantial evidence that
he possessed that weapon.
       Third, “[t]he capital charges were not the result of joinder of the various
incidents.” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) Contrary to
defendant‟s arguments, we do not apply a heightened standard in assessing
severance issues in capital cases. (People v. Trujeque (2015) 61 Cal.4th 227, 260.)
       Defendant further contends that the trial court should have granted
severance because denial of the motion assertedly prevented him from taking the
stand. He claims he could have offered a defense to the Addis counts that was
inapplicable to the remaining counts, but would then have also had to testify
concerning the remaining counts.
       Defendant‟s theory of prejudice has been recognized by federal courts in
interpreting their rule of procedure regarding severance, rule 14(a) of the Federal
Rules of Criminal Procedure (18 U.S.C.). We noted in People v. Sandoval (1992)
4 Cal.4th 155, that we have not addressed this theory, and we concluded that the
“[d]efendant‟s showing fell far short of anything that would have satisfied the
federal standards or any standard this court might adopt.” (Id. at p. 174.) We have
subsequently considered this theory without adopting it as part of our severance

                                         28
analysis. (See People v. Johnson (2015) 61 Cal.4th 734, 752; People v. Thomas
(2012) 53 Cal.4th 771, 800.) Although the federal courts‟ test is based on their
interpretation of the federal rule and is not grounded in constitutional mandate, we
will assume, without deciding, that the type of prejudice recognized by the federal
courts could justify a trial court‟s decision to sever otherwise properly joined
charges under California law.
       Although federal courts have interpreted their rule to permit severance
when a defendant can show prejudice because he or she “ „wishes to testify to one
charge but to remain silent on another‟ ” (U.S. v. Archer (7th Cir. 1988) 843 F.2d
1019, 1022), they recognize that “ „severance is not mandatory every time a
defendant wishes to testify to one charge but to remain silent on another. If that
were the law, a court would be divested of all control over the matter of severance
and the choice would be entrusted to the defendant.‟ ” (Ibid.) Under the two-part
test devised by the federal courts, “severance is required when a defendant
demonstrates that he has both (1) important testimony to give concerning some
counts and (2) a strong need to refrain from testifying with regard to other counts.”
(U.S. v. Ely (7th Cir. 1990) 910 F.2d 455, 457, italics added.) To satisfy the
second part of the test, the defendant must demonstrate that his or her testimony
on the counts about which he or she did not wish to testify was essential to the
prosecution‟s meeting its burden of proof on those charges. (Id. at p. 460; Archer,
at p. 1022; U.S. v. Williamson (5th Cir. 1973) 482 F.2d 508, 513.)
       As noted, the trial court conducted an in camera hearing concerning
defendant‟s desire to testify about the Addis attacks and how consolidation might
affect his willingness to testify. At defendant‟s request, we have reviewed the
sealed transcript of that hearing. The People have asked that the transcript be
unsealed in the event it appears the trial court abused its discretion in denying
severance. It is unnecessary to unseal the transcript, as defendant has failed to

                                          29
satisfy the second part of the federal test. There was ample independent evidence
of his attack on Matthews (count 3) and his possession of the prison-made weapon
(count 4), quite apart from any testimony he may have offered or declined to offer
regarding those counts. Accordingly, he fails to show he was prejudiced on this
ground by the trial court‟s denial of his severance motion.
       Defendant makes several related arguments that can be quickly dispatched.
First, he claims the trial court failed to instruct the jury to consider and decide each
count separately, but as he concedes, the trial court did not have a duty to give the
instruction without a request. (People v. Beagle (1972) 6 Cal.3d 441, 456.)
Second, he claims the prosecutor committed misconduct by arguing that the jury
could indiscriminately use the evidence of all counts to prove each count. But
defendant neither objected to the argument, thus forfeiting any claim of
misconduct, nor did he request a limiting instruction. (People v. Lopez (2013) 56
Cal.4th 1028, 1073; Evid. Code, § 355.) Third, he claims judicial economy would
have been served by severing counts 1 and 2 from counts 3 and 4 because counts 3
and 4 involved evidence that was not relevant to counts 1 and 2, and “there was
every reason to believe that a verdict on the capital/murder charges would have led
the parties to reach a disposition on other charges.” Evidence of the counts was
cross-admissible, as explained above, and he cites no legal authority to support his
novel and speculative theory regarding a disposition of the less serious charges.
       Finally, defendant contends denial of his severance motion resulted in such
gross unfairness as to amount to a violation of his federal due process rights.
(People v. Capistrano, supra, 59 Cal.4th at p. 853.) Other than the asserted
prejudice we have already discussed and rejected, defendant points to no
additional unfairness assertedly resulting from the joint trial. We therefore
conclude that defendant has failed to show a due process violation as the result of



                                          30
the denial of his severance motion, or any violation of his rights to a fair trial, a
trial by jury, and reliable capital case proceedings.

       C. Juror Questionnaire
       Defendant contends the trial court erroneously rejected two questions he
asked to be included on the jury questionnaire pertaining to the prospective jurors‟
attitudes about aspects of prison life. He contends the court‟s ruling violated his
state and federal rights to due process, a fair trial, an impartial jury, and to a
reliable determination of guilt and penalty in a capital case. (U.S. Const., 5th, 6th,
8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, & 17.)5 The claim
is meritless.




5       “With respect to this and virtually every other claim raised on appeal,
defendant urges that the error or misconduct he is asserting infringed various of
his constitutional rights to a fair and reliable trial. In most instances, insofar as
defendant raised the issue at all in the trial court, he failed explicitly to make some
or all of the constitutional arguments he now advances. In each instance, unless
otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g.,
failure to instruct sua sponte; erroneous instruction affecting defendant‟s
substantial rights) that required no trial court action by the defendant to preserve it,
or (2) the new arguments do not invoke facts or legal standards different from
those the trial court itself was asked to apply, but merely assert that the trial
court‟s act or omission, insofar as wrong for the reasons actually presented to that
court, had the additional legal consequence of violating the Constitution. To that
extent, defendant‟s new constitutional arguments are not forfeited on appeal.”
(People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, applying People v. Partida
(2005) 37 Cal.4th 428, 433-439.) “In the latter case, no separate constitutional
discussion is required or provided where rejection of a claim that the trial court
erred on the issue presented to that court necessarily leads to rejection of any
constitutional theory or „gloss‟ raised for the first time here.” (People v.
Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We apply this principle here and
elsewhere where defendant asserts on appeal constitutional claims not advanced
below.




                                           31
           1. Background
       Defendant proposed the following multipart question (question No. 40) to
be included in the juror questionnaire:
       “What are your views on the prison system in the State of California?
       “A. To what extent can you consider evidence that living in the prison
system, that is to say being a prisoner, is an ongoing experience entirely different
from living in society as you know it?
       “B. Please indicate which statement best describes your opinion of life in
the prison system prior to hearing evidence in this case:
       “____ Prisoners are safer on the inside that they would be on the outside
       “____ Prisoners are about as safe on the inside as they would be on the
outside
       “____ Prisoners are less safe on the inside than they would be on the
outside
       “C. Whatever your opinion as to the safety of living in the prison system
may be, how willing are you to consider evidence that many prisoners‟ primary
task on the inside is staying alive?”
       The prosecutor objected to subparts B and C, asserting they were
argumentative and called upon the prospective jurors to prejudge the case. The
prosecutor also asserted that the questions were vague as to what was meant by
prisoner safety. The trial court declined to include subparts B and C. Regarding
the latter, even defense counsel conceded it was a “little argumentative,” and
proposed an alternative the trial court also declined to include. The court
expressed its belief that the defense could ask follow up questions to subpart A “to
get somewhat the same information, assuming it‟s an appropriately asked
question.” At the defense‟s request, a space was provided after subpart A with the
words “Please explain.” In its final form, subpart A (renumbered question No. 96,


                                          32
subpart b on the questionnaire) read: “Would you be willing to consider evidence
that living in the prison system, that is to say, being a prisoner, is an ongoing
experience entirely different from living in society as you know it? Please
explain.”

            2. Discussion
       Defendant contends the trial court‟s rejection of his questions regarding
prisoner safety denied him the opportunity to “expose juror bias about prison
inmate safety and survival, to lay the foundation for challenges for cause, and to
explore prospective jurors[‟] views on issues related to the circumstances of the
charged capital offense that would be important to the decision of whether or not
to impose the death penalty.” As explained below, we find no abuse of discretion.
       Preliminarily, we dispose of the People‟s claim that defendant forfeited this
issue because, after further discussion and further revision of the questionnaire,
defense counsel agreed the questionnaire could be used. By then, however, the
trial court had already rejected subparts B and C, and it would have been futile for
defense counsel to renew the argument. Accordingly, we find no forfeiture and
proceed to the merits.
       “There is no constitutional right to voir dire per se. Nor is there any
constitutional right to conduct voir dire in a particular manner. [Citation.] Rather,
the voir dire process serves as a means of implementing the defendant‟s Sixth
Amendment right to an impartial jury. [Citations.] [¶] Consistent with applicable
statutory law, the trial court has wide latitude to decide the questions to be asked
on voir dire [citation], and to select the format in which such questioning occurs
[citation]. The court likewise has broad discretion to contain voir dire within
reasonable limits.” (People v. Contreras, supra, 58 Cal.4th at p.143; fn. omitted;
see Code Civ. Proc., § 223.) Thus, “ „ “content” questions,‟ even ones that might



                                          33
be helpful, are not constitutionally required. [Citation.] To be an abuse of
discretion, the trial court‟s failure to ask questions „must render the defendant‟s
trial fundamentally unfair.‟ [Citation.] „Such discretion is abused “if the
questioning is not reasonably sufficient to test the jury for bias or partiality.” ‟
[Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 737; see also People v.
Leon (2015) 61 Cal.4th 569, 586.) It is not the purpose of voir dire to “ „educate
the jury panel to the particular facts of the case, to compel the jurors to commit
themselves to vote a particular way, to prejudice the jury for or against a particular
party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of
law.‟ ” (People v. Crowe (1973) 8 Cal.3d 815, 824.)
       As defendant asserts, the issue of inmate safety and survival was “central to
the defense to the capital/murder charges.” The principal purpose of the rejected
questions appears to have been to begin educating the jurors about the defense.
Moreover, as the prosecutor pointed out, the rejected questions were vague in that
they did not specify what kind of threats to inmate safety and survival were at
issue. This vagueness itself created an opening for defendant to fill in the blanks
with, again, the objective of previewing the defense and inviting agreement with
his view of inmate safety and survival. Finally, the trial court did not foreclose all
questioning on this subject, but indicated it would allow the defense to pursue the
subject should a prospective juror raise it in his or her answer to subpart A.
Accordingly, we conclude that the trial court acted well within its discretion in
rejecting the questions. We conclude further that the rejection of the proposed
questions did not implicate the issue of death-qualification voir dire. (See
Wainwright v. Witt (1985) 469 U.S. 412; Witherspoon v. Illinois (1968) 391 U.S.
510; People v. Butler (2009) 46 Cal.4th 847, 859 [the purpose of Witherspoon-
Witt voir dire is to determine only the views of prospective jurors about capital
punishment].)

                                           34
       D. Admission of Defendant’s Letters
       Defendant contends the admission of jailhouse letters he wrote to another
NLR gang member violated his federal and state constitutional rights to due
process, a fair trial, a trial by jury, and to reliable capital proceedings. (U.S.
Const. 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16,
17.) We disagree.

           1. Background
       Prison officials intercepted two letters defendant wrote to fellow NLR gang
member, Joseph Lowery, who had once been defendant‟s cellmate. The officials
photocopied the letters and then allowed them to be delivered to Lowery. The two
letters were denominated People‟s exhibits Nos. 66 and 67. Exhibit No. 66
consisted of a photocopied envelope and a letter dated September 9, 1997, sent
from CIM, at Chino, where defendant was then housed. The envelope had
defendant‟s name, prison number and address. Exhibit No. 67 was an undated
photocopied letter that was faxed to David Lacey, the investigating officer in this
case, at CIM from an Officer Harrison at Corcoran State Prison on December 22,
1997, when defendant was housed at that institution. Glen Willett, the
prosecution‟s prison gang expert, testified that prison authorities monitor prison
gang members by intercepting their mail and reading it before passing it on.
Lacey testified that outgoing letters by inmates are not allowed to be sealed. First,
they are collected and read. If they contain information pertinent to an ongoing
investigation, they are photocopied and the copies passed on to a supervisor.
Finally, the original letters are delivered to their recipients. That was how Lacey
obtained defendant‟s letters.
       Willett, the prison gang expert, testified concerning the contents of the
letters for purposes of identifying defendant as either an associate or a member of
the NLR. With respect to exhibit No. 66, he testified that Lowery was a known


                                           35
NLR gang member and that defendant‟s use of the phrase “dawg o‟ mine,” was an
endearment used among gang members. He testified further that the sentence,
“Yeah, this 187 kinda put me at ease, had to earn it,” meant that defendant had “to
work hard” to commit the “murder,” presumably the Addis homicide, and that
committing the murder would elevate defendant‟s status with higher ranking NLR
gang members like Lowery. With respect to exhibit No. 67, Willett testified
defendant had signed it with his gang moniker “Smurf,” and had made reference to
being relocated. He testified the phrase “so the KGB has been befuddled once
again,” referred to prison authorities. He also noted defendant had again used the
gang phrase “dawg o‟mine,” and well as the phrase “I hope this finds you in good
health and strong mind,” which is a reference to racial purity. Defendant also
referred to Gary Green‟s gang moniker, “Mop,” and to an Aryan Brotherhood
gang member named Joseph Hayes who was then incarcerated at Pelican Bay.6
Willett also testified that defendant‟s use of the word “homeplate,” was another
gang endearment that was the “same as „homey.‟ ”
       Later in the trial, when the prosecutor moved for the admission of exhibit
Nos. 66 and 67, the defense objected that there was no foundation that defendant
wrote them. The prosecutor responded that the evidence showed Lowery and
defendant were cellmates at one point, that defendant‟s prison number and address
were written on the envelope in exhibit No. 66, and that “these are self-
authenticating letters because of the content” and also because they were signed
with defendant‟s gang moniker Smurf. Defense counsel argued there was no
evidence regarding how prison officials obtained the letters. The prosecutor


6     Willett testified that the NLR had begun as a feeder gang to the Aryan
Brotherhood.




                                         36
countered that Lacey‟s testimony regarding the interception and copying of inmate
letters provided a proper foundation. She acknowledged, however, that it was not
possible to establish who had originally collected the letters. The trial court
admitted the letters.

           2. Discussion
       Defendant‟s argument regarding the admissibility of the letters is two-
pronged. First, he contends the letters were inadmissible under the secondary
evidence rule codified in Evidence Code section 1521. Second, he argues the
letters were not properly authenticated under Evidence Code section 1401.
       Evidence Code section 1521 provides in part: “The content of a writing
may be proved by otherwise admissible secondary evidence. The court shall
exclude secondary evidence of the content of writing if the court determines either
of the following: [¶] (1) A genuine dispute exists concerning material terms of
the writing and justice requires the exclusion. [¶] (2) Admission of the secondary
evidence would be unfair.” Enacted in 1998 — and thus applicable to defendant‟s
2001 trial — the secondary evidence rule replaced the best evidence rule, which
was repealed. “Under the secondary evidence rule, the content of a writing may
now be proved either „by an otherwise admissible original‟ ([Evid. Code,] § 1520
or by „otherwise admissible secondary evidence‟ ([Evid. Code,] § 1521, subd. (a);
[citation]).” (People v. Goldsmith (2014) 59 Cal.4th 258, 269.)
       Here, as noted, photocopies of the letters and the one envelope were
admitted rather than the originals because, as Lacey explained, once the
photocopies were made, the originals were delivered to their intended recipient.
Defendant now asserts the admission of the copies was error. At no time did
defendant object to admission of the documents under the secondary evidence
rule. Rather, his objection went to their authenticity.



                                         37
       “ „As a general rule, “the failure to object to errors committed at trial
relieves the reviewing court of the obligation to consider those errors on appeal.”
[Citation.] . . .‟ This rule applies equally to any claim on appeal that the evidence
was erroneously admitted, other than the stated rule for the objection at trial.”
(People v. Kennedy (2005) 36 Cal.4th 595, 612; accord, Evid. Code, § 353.) This
principle applies with particular force here, because before the trial court can
exclude otherwise admissible secondary evidence, Evidence Code section 1521
requires the court to make specific factual determinations. These include whether
a genuine dispute exists concerning material terms of the writing, and whether
admission of the evidence would be unfair. The trial court cannot make such
findings if a party fails to make a proper, specific, and timely objection, nor can
we review the basis of the trial court‟s determination where no findings were made
due to defendant‟s failure to have lodged the appropriate objection. Therefore,
contrary to defendant‟s view, his various objections to Willett‟s interpretation of
certain phrases in the letters did not amount to a proper objection under the
secondary evidence rule. Accordingly, the claim is forfeited.
       As noted above, defendant also contends the letters were not properly
authenticated. A writing that qualifies for admission under the secondary evidence
rule must, nonetheless, be authenticated before it can be admitted. “The
Secondary Evidence Rule does not „excuse[] compliance with [Evidence Code]
Section 1401 (authentication).‟ ([Evid. Code] § 1521, subd.(c).) Thus, to be
„otherwise admissible,‟ secondary evidence must be authenticated.” (People v.
Skiles (2011) 51 Cal.4th 1178, 1187, fn. omitted; see Evid. Code § 1401, subd. (b)
[“Authentication of a writing is required before secondary evidence of its content
may be received in evidence”].)
       “Authentication is to be determined by the trial court as a preliminary fact
([Evid. Code,] § 403, subd. (a)(3)) and is statutorily defined as „the introduction of

                                          38
evidence sufficient to sustain a finding that it is the writing that the proponent of
the evidence claims it is‟ or „the establishment of such facts by any other means
provided by law‟ ([Evid. Code,] § 1400).” (People v. Goldsmith, supra, 59
Cal.4th at p. 266.) “The means of authenticating a writing are not limited to those
specified in the Evidence Code. ([Evid. Code,] § 1410 [„[n]othing in this article
shall be construed to limit the means by which a writing may be authenticated or
proved‟]; [citation].) For example, a writing can be authenticated by
circumstantial evidence and by its contents.” (People v. Skiles, supra, 51 Cal.4th
at p. 1187.)
       The testimony of Glen Willett and Officer Lacey was sufficient to sustain
the trial court‟s finding of authenticity. Both men testified to the general protocol
by which inmate letters are monitored and, when appropriate, copied and turned
over to prison authorities as possible evidence in ongoing investigations.
Defendant‟s letters were of obvious interest to Lacey, who was investigating
defendant‟s attack on Addis. The envelope that was part of exhibit No. 66 showed
as its return address defendant‟s address, along with his inmate number, and was
sent while he was at CIM. Similarly, exhibit No. 67, the letter faxed to Lacey in
December 1997 from Corcoran State Prison, was written while defendant was
housed at that institution and refers to his having been relocated; he had in fact
been transferred from CIM to Corcoran. The contents of the letter, about which
Willett testified, lends further support for its authenticity. The reference to a
“187,” that is, a murder, and the context in which the reference is made, are
inferentially references to the attack on Addis by defendant, for which he is
claiming credit. Other references in the letters, to mutual acquaintances like Gary
Green and Joseph Hayes, and defendant‟s familiar tone with the recipient, Lowery,
his one-time cellmate, as well as his use of his own gang moniker, Smurf, also
provide circumstantial support that he authored the letters. (See Evid. Code,

                                          39
§ 1421: “A writing may be authenticated by evidence that the writing refers to or
states matters that are unlikely to be known to anyone other than the person who is
claimed by the proponent of the evidence to be the author of the writing.”)
       Defendant argues that all of this information was known to individuals
other than himself, making it possible that the letters were forged. However,
“ „[a]s long as the evidence would support a finding of authenticity, the writing is
admissible. The fact conflicting inferences can be drawn regarding authenticity
goes to the document‟s weight as evidence, not its admissibility.‟ [Citation.]”
(People v. Goldsmith, supra, 59 Cal.4th at p. 267.)
       Accordingly, we conclude the trial court did not abuse its discretion in
admitting exhibit Nos. 66 and 67 into evidence.

       E. Excusal of Sick Juror
       On the day set for closing arguments and instruction, the court, over
defendant‟s objection, excused a sick juror and seated an alternate. Defendant
contends the trial court‟s decision to replace the sick juror was an abuse of
discretion and also violated his federal and state constitutional rights to a fair and
impartial jury trial and a reliable penalty determination. (U.S. Const., 5th, 6th, 8th
& 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, 17.) The claim is
meritless.

             1. Background
       On the morning of April 18, 2001, the day set for closing arguments and
instructions, the trial court informed counsel that Juror No. 10 had called in sick
with the flu. The court indicated it was inclined to replace the juror because the
“flu that‟s going around does not seem to be something that will get well [sic] in a
day or two.” Defense counsel requested and was granted a recess to review his
jury list and consult with defendant. When the proceedings resumed, defense



                                          40
counsel objected to replacing the sick juror and asked the court to wait for a day to
see whether the juror had recovered. The prosecutor suggested the court speak to
the juror directly. With consent of both counsel, the trial court telephoned the
juror and put her on speakerphone. The juror reported she had been vomiting all
night and did not anticipate recovering that week. The judge asked if she would
be available on Monday, to which she said yes, although she acknowledged she
had not been to the doctor.
       After speaking to the juror, the court noted that a delay from Wednesday to
Monday would result in the loss of three court days. Defense counsel stated “it‟s
reasonable to wait for that person until Monday.” The trial court, however,
excused Juror No. 10 and replaced her with an alternate.

            2. Discussion
       Section 1089 states in pertinent part that “[i]f at any time, whether before or
after the final submission of the case to the jury, a juror . . . becomes ill . . . , the
court may order the juror to be discharged” and replaced by an alternate juror.
“We review such a decision for abuse of discretion.” (People v. Smith (2005) 35
Cal.4th 334, 348-349.) “The court‟s discretion is not unbounded: it must
determine whether good cause exists to discharge the juror, and its reasons for
discharge must appear in the record as a demonstrable reality.” (People v. Roberts
(1992) 2 Cal.4th 271, 325.) The trial judge is not required, however, to “elicit
conclusive proof of the length of future incapacitation; judges are lawyers, not
doctors.” (People v. Duff (2014) 58 Cal.4th 527, 560, fn. omitted.) Nor must the
incapacitation exceed a specific length of time. “[I]n the right circumstances, an
absence of a day or less may warrant excusal. [Citations.] Whether a juror‟s
illness can best be accommodated by a continuance or replacement with an
alternate is a matter committed to the trial court‟s discretion.” (Id. at pp. 560-561.)



                                            41
       Here, there is no dispute the juror was ill. Although she believed she might
be well the following Monday, five days and three court days later, this was
merely an estimate on her part. Meanwhile, as defendant acknowledges, the trial
had gone on for almost two months and was set to enter its final phase of closing
argument and instruction on the day the juror called in sick. Whether, as he
insists, a three-day continuance would have been reasonable is not the question we
must answer. The question is whether, under these circumstances, the trial court‟s
decision to proceed with an alternate juror was an abuse of discretion. In light of
the uncertainty of the juror‟s prognosis and the crucial point at which the trial had
arrived, we conclude the trial court did not abuse its discretion.

       F. Claims of Instructional Error

           1. Instructions Regarding Duress
       Defendant contends the trial court‟s denial of four proposed defense
instructions concerning duress violated his federal constitutional rights to due
process, effective assistance of counsel and a reliable penalty determination. (U.S.
Const., 5th, 6th, 8th and 14th Amends.) The claim is meritless.
       The defense of duress is set forth in section 26, which states in relevant
part: “All persons are capable of committing crimes except those belonging to the
following classes: [¶] . . . [¶] Six — Persons (unless the crime be punishable
with death) who committed the act or made the omission charged under threats or
menaces sufficient to show that they had reasonable cause to and did believe their
lives would be endangered if they refused.” As noted above, defendant argued
that his attack on Addis, the basis of counts 1 and 2, was committed under duress
because the attack was ordered by the NLR and, had defendant failed to carry it
out, he himself would have been killed.




                                          42
       To establish the defense, defendant requested four duress instructions, two
pertaining to the first degree murder charge (count 1) and two to the charge of
assault by a life prisoner with malice aforethought (count 2.)7 The trial court

7       The four requested instructions were as follows:
        1. “In this case, you may consider evidence showing the existence of threats,
menaces or compulsion that played a part in inducing the unlawful killing of a human
being for such bearing as it may have on the question of whether the murder alleged
in Count 1 was of the first or second degree. If you find from the evidence that at the
time the alleged crime was committed the defendant honestly and reasonably held a
belief that his own life was in danger, you must consider what effect, if any, this
belief had on the defendant and whether he formed any of the specific mental states
that are essential elements of murder. [¶] Thus if you find he had an honestly and
reasonably held belief that his life was in peril and as a result did not maturely and
meaningfully premeditate, deliberate and reflect on the gravity of his contemplated
act or form an intent to kill, you cannot find him guilty of a willful, deliberate and
premeditated murder of the first degree.” [¶] Also, if you find the defendant did not
form the mental state constituting express malice, you cannot find him guilty of
murder of either the first or second degree. You may however, find him guilty of the
crime of voluntary manslaughter as defined in these instructions.”
        2. “The distinction between murder and manslaughter is that murder requires
malice while manslaughter does not. [¶] When the act causing death, though
unlawful, is done under the actual and reasonable belief in the necessity to act
because of imminent peril to life or great bodily injury, the offense is manslaughter.
In that case, even if an intent to kill exists, the law is that malice, which is an essential
element of murder, is absent. [¶] To establish that a killing is murder and not
manslaughter, the burden is on the People to prove beyond a reasonable doubt each of
the elements of murder and that the act which caused death was not done under the
actual and reasonable belief in the necessity to act because of imminent peril to life or
great bodily injury.”
        3. “With respect to Count 2, the crime of Assault By A Life Prisoner With
Malice Aforethought is not committed unless the element of malice aforethought is
proved. [¶] If you find that the defendant acted under the actual and reasonable
belief in the necessity to act because of imminent peril to life or great bodily injury,
there is no malice aforethought and the crime alleged in Count 2 is not committed.
[¶] As to this alleged offense, the burden is on the People to prove beyond a
reasonable doubt each of the elements of the offense and that the act which caused
death was not done under the actual and reasonable belief in the necessity to act
because of imminent peril to life or great bodily injury.”
        4. “In this case, you may consider evidence showing the existence of
threats, menaces or compulsion that played a part in inducing the unlawful assault
                                                                (footnote continued on next page)


                                             43
rejected the instructions on the ground that there was insufficient evidence that
defendant personally entertained a good faith belief that his action — attacking
Addis — was necessary because his own life was in danger.
        Nonetheless, in response to the prosecutor‟s request that the court “say
something about” duress, the court gave a modified version of CALJIC No. 4.40
(Threats and Menaces) as follows: “A person is not guilty of a crime other than
Assault by a Life Prisoner as alleged in Count 2 when he engages in conduct,
otherwise criminal, when acting under threat and menace under the following
circumstances: [¶] 1. Where the threat and menace are such that they would cause
a reasonable person to fear that his life would be in immediate danger if he did not
engage in the conduct charged, and [¶] 2. If this person then believed that his life
was so endangered. [¶] This rule does not apply to threats, menaces, and fear of



(footnote continued from previous page)

upon inmate Addis resulting in death of the inmate as alleged in Count 2, for such
bearing as it may have on the question of whether that crime was committed. If
you find from the evidence that at the time the alleged crime was committed the
defendant honestly and reasonably held a belief that his own life was in danger,
you must consider what effect, if any, this belief had on the defendant and whether
he formed any of the specific mental states that are essential elements of this
particular crime. Thus if you find he had an honestly and reasonably held belief
that his life was in peril and as a result did not form the mental state constituting
malice aforethought, which is an element of the crime, you may not find him
guilty of said crime. [¶] You may however, find him guilty of the crime of any
lesser included offenses such as assault with a deadly weapon as defined in these
instructions.”
        Defendant acknowledges the proposed instructions are erroneous in two
respects: first, the requirement that a defendant maturely and meaningfully reflect
upon his or her act had been eliminated from section 189 prior to defendant‟s trial
and, second, the instruction erroneously stated express malice was required for
murder when section 189 states that such malice may be either express or implied.




                                          44
future danger to his life, nor does it apply to the crime of Assault By a Life
Prisoner as alleged in Count 2.”8
       We need not decide whether the trial court was correct that there was
insufficient evidence to support the requested instructions, because we have since
held that duress is not a defense to murder, nor does duress reduce murder to
manslaughter. (People v. Anderson (2002) 28 Cal.4th 767, 772-785 (Anderson);
see People v. Burney (2009) 47 Cal.4th 203, 249-250; People v. Hinton (2006) 37
Cal.4th 839, 882-883; People v. Wilson (2005) 36 Cal.4th 309, 331-332; People v.
Maury (2003) 30 Cal.4th 342, 421-422.)
       In Anderson, supra, 28 Cal.4th 767, the defendant urged the court to
construe section 26 to exempt only capital crimes from the defense of duress. In
response, we noted that at common law, duress was not a defense to killing an
innocent person. (Id. at p. 772.) We further observed that when California
recognized the defense in 1850, all murder was punishable by death. We
concluded that as enacted, “section 26 effectively adopted the common law”
(Anderson, supra, at p. 774), thereby barring duress as a defense to murder. In the
course of our discussion, we observed that “[i]f duress is recognized as a defense
to the killing of innocents, then a street or prison gang need only create an internal

8       The instruction‟s exclusion of the crime of assault by a life prisoner reflects
section 26‟s exclusion of “crime[s] punishable by death” from the defense of
duress. (See § 4500.) In the trial court, defense counsel acknowledged that his
proposed instructions on the effect of duress on count 2, which charged assault by
a life prisoner in violation of section 4500, was foreclosed by the explicit language
of section 26. For this reason, we reject defendant‟s claim that the trial court erred
in failing to instruct that duress could serve as a basis for the jury to reduce count
2 to assault with a deadly weapon. For this purpose, we assume, without deciding,
that defense counsel‟s acknowledgement that section 26 did not apply to count 2,
and his agreement to the modified duress instruction given, which specifically
excluded count 2, did not forfeit the claim.




                                          45
reign of terror and murder can be justified, at least by the actual killer.” (Id. at
p. 777, italics added.)
       We also rejected the defendant‟s theory that even if duress is not a complete
defense to murder, “at least it reduces the crime to manslaughter by negating
malice.” (Anderson, supra, 28 Cal.4th at p. 781.) We noted that for purposes of
voluntary manslaughter — an unlawful killing without malice — the absence of
malice is limited to two circumstances: “ „ “when the defendant acts in a „sudden
quarrel or heat of passion‟ (§ 192, subd. (a)), or when the defendant kills in
„unreasonable self-defense‟ — the unreasonable but good faith belief in having to
act in self-defense [citations].” ‟ ” (Ibid.) We observed that “[n]either of these
two circumstances describes the killing of an innocent person under duress.”
(Ibid.) We declined to carve out a third circumstance negating malice, based on
duress. Unlike a person who has an unreasonable belief it is necessary to kill in
self-defense, and therefore intends to kill lawfully, “a person who kills an innocent
believing it necessary to save the killer‟s own life intends to kill unlawfully, not
lawfully.” (Id. at p. 783.) We recognized that policy arguments could be made to
recognize duress as a factor reducing culpability, but observed that “because
duress can often arise in a criminal gang context, the Legislature might be
reluctant to do anything to reduce the current law‟s deterrent effect on gang
violence. These policy questions are for the Legislature, not a court, to decide.”
(Id. at p. 784.) Defendant sets forth no argument that persuades us to reconsider
these conclusions.
       Defendant seeks to avoid Anderson‟s holding on the basis that Anderson
did not consider whether duress may be a defense to murder as a matter of federal
constitutional law. He maintains that evolving standards of decency and
heightened requirements of a reliable death penalty pursuant to the Eighth
Amendment require recognition of duress as a defense to murder. Defendant does

                                           46
not cite any case that has so held, and we are not persuaded that his citation to
legal commenters represents a national consensus that has developed against the
rule we announced in Anderson. (Cf. Atkins v. Virginia (2002) 536 U.S. 304, 313-
317 [tracing legislative actions prohibiting the execution of intellectually disabled
persons as evidence of a national consensus against that practice].)
       Defendant also asserts that his federal constitutional rights to due process
and to present a defense required the trial court to give his proposed instructions
and allow the jury to consider whether his claim of duress created a reasonable
doubt regarding malice. The high court has acknowledged, however, that “dealing
with crime is much more the business of the States than it is of the Federal
government, [citation], and [it] should not lightly construe the Constitution so as to
intrude upon the administration of justice by the individual States. (Patterson v.
New York (1977) 432 U.S. 197, 201 [New York statute allocating burden on
defendant to prove affirmative defense of extreme emotional disturbance does not
violate the due process clause].) “When a State‟s power to define criminal
conduct is challenged under the Due Process Clause, we inquire only whether the
law „offends some principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.‟ [Citation.]” (Montana v. Egelhoff
(1996) 518 U.S. 37, 58 (conc. opn. of Ginsberg, J.) [Montana statute eliminating
voluntary intoxication as a defense does not violate due process].)
       Consistent with these principles, the United States Court of Appeals for the
Fifth Circuit rejected a claim that Louisiana‟s statute excluding duress as a defense
to murder violated the defendant‟s federal due process rights.9 “The state

9      The Louisiana statute permits a justification defense “[w]hen any crime,
except murder, is committed through the compulsion of threats by another of death
or great bodily harm, and the offender reasonably believes the person making the
                                                           (footnote continued on next page)


                                         47
legislatures have vast powers to establish the elements of crimes, subject to the
substantive provisions of the Constitution. [Citations.] Where a fundamental right
is involved, the state‟s legislative authority must yield. [Citation.] Obviously,
there is no fundamental right to commit murder, even under duress. Substantive
due process is not implicated.” (Glass v. Blackburn (5th Cir. 1986) 791 F.2d
1165, 1171.)
        As we noted in Anderson, section 26 represents a legislative decision to
adopt the common rule excluding duress as a defense to murder. (Anderson,
supra, 28 Cal.4th at p. 774.) California‟s position is consistent with the majority
of states that have considered the issue and adopted the common law rule. (U.S. v.
LaFleur (9th Cir. 1992) 971 F.2d 200, 205, and statutes and cases cited therein.)
The Legislature‟s adoption of the venerable common rule excluding duress as a
defense to murder does not implicate a fundamental right. Accordingly, we reject
defendant‟s claim that federal constitutional law required the trial court to give the
requested instructions.
        Finally, defendant contends the trial court should have instructed the jury
that evidence of duress could negate premeditation and deliberation, thereby
resulting in second degree murder. (See Anderson, supra, 28 Cal.4th at p. 784
[“We agree that a killing under duress, like any killing, may or may not be
premeditated, depending on the circumstances”].) In Anderson, we concluded this
concept was sufficiently addressed by language in CALJIC No. 8.20 (Deliberate
and Premeditated Murder) instructing the jury that “a killing „upon a sudden heat

(footnote continued from previous page)

threats is present and would immediately carry out the threats if the crime were not
committed . . . .” (La. Rev. Stat. § 14:18(6) available from La. State Legis. Online
at https://legis.la.gov/Legis/Law.aspx?d=78335 [as of December 12, 2016].)




                                          48
of passion or other condition precluding the idea of deliberation‟ would not be
premeditated first degree murder.” (Anderson, supra, at p. 784.) Not only was
CALJIC No. 8.20 given in this case, but, as noted, defendant received the
unwarranted benefit of a modified duress instruction. We reject defendant‟s
contention that these instructions were inadequate on this point.

           2. CALJIC No. 8.20
       Defendant contends that the use of the word “precluding” in CALJIC
No. 8.20 (Deliberate and Premeditated Murder) in referring to circumstances that
would negate the element of deliberation effectively lowered the prosecution‟s
burden of proof and violated his federal and state constitutional rights to due
process, trial by jury and a reliable penalty determination. (U.S. Const., 5th, 6th,
8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, 17.)
       As given in this case, CALJIC No. 8.20 provided:
       “All murder which is perpetrated by any kind of willful, deliberate and
premeditated killing with express malice aforethought is murder of the first
degree. The word „willful,‟ as used in this instruction, means intentional. [¶] The
word „deliberate‟ means formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against the proposed
course of action. The word „premeditated‟ means considered beforehand. [¶] If
you find that the killing was preceded and accompanied by a clear, deliberate
intent on the part of the defendant to kill, which was the result of deliberation and
premeditation, so that it must have been formed upon pre-existing reflection and
not under a sudden heat of passion or other condition precluding the idea of
deliberation, it is murder of the first degree.” (Italics added.)
       Defendant contends that, in context, the instruction required the jury to find
evidence that would have entirely prevented deliberation before the jury could find



                                          49
the crime to be less than first degree murder, a more onerous standard than
requiring merely that the evidence raise a reasonable doubt. He asserts: “The jury
should have been instructed that, if it found evidence of a sudden heat of passion
or other condition sufficient to giv[e] rise to a reasonable doubt of deliberation, it
must give the defendant the benefit of the doubt and find him not guilty of first
degree murder.” He relies on various legislative, dictionary and judicial usages of
the word “precluding” to support his view that the jury would have understood the
word to mean “prevent entirely.”
       The People respond that the claim is forfeited by defendant‟s failure to seek
modification of the instruction or by his attorney‟s agreement to the instruction.
Assuming defendant‟s argument challenges the correctness of the instruction and
therefore is not forfeited (see § 1259), it is nonetheless meritless.10
       As defendant acknowledges, we have previously considered and rejected an
identical challenge to CALJIC No. 8.20. In People v. Nakahara (2003) 30 Cal.4th
705 (Nakahara), the defendant contended that the word “precluding” in CALJIC
No. 8.20 was “too strong and could be interpreted as requiring him to absolutely
preclude the possibility of deliberation, as opposed to merely raising a reasonable
doubt on that issue.” (Nakahara at p. 715.) We concluded that “this 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.
These instructions make it clear that a defendant is not required to absolutely
preclude the element of deliberation.” (Ibid.; accord, People v. Pearson (2012) 53
Cal.4th 306, 326; People v. Morgan (2007) 42 Cal.4th 593, 620-621.)

10     Pursuant to section 1259, an appellate court may “review any instruction
given, refused or modified, even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby.”



                                          50
       Defendant asserts that Nakahara should not control because it did not
consider the various usages of “precluding” that he presents here and that he has
drawn from sources other than jury instructions. In considering a claim of
instructional error, however, we do not look far and wide for all possible usages of
a word the defendant has singled out as error nor do we focus solely on that single
word. Rather, “[t]he relevant inquiry here is whether, „in the context of the
instructions as a whole and the trial record, there is a reasonable likelihood that the
jury was misled to defendant‟s prejudice.‟ [Citation.] Also, „ “ „we must assume
that jurors are intelligent persons and capable of understanding and correlating all
jury instructions which are given.‟ [Citation].” ‟ ” (People v. Sattiewhite (2014)
59 Cal.4th 446, 475.) This was the standard we applied in Nakahara as is evident
by our references to the others instructions pertinent to CALJIC 8.20. We apply
the same standard here and again reject this challenge to CALJIC No. 8.20.

           3. Implied Malice Second Degree Murder Instruction
       Defendant contends the trial court erred by failing to instruct the jury, on its
own motion, concerning the lesser included offense of implied malice second
degree murder.11 He asserts the error violated his rights to due process and a trial
by jury, and the proscription against cruel and unusual punishment. (U.S. Const.,
5th, 6th, 8th & 14th Amends.) We find no error.

11      Defendant contends the trial court should have instructed the jury with
CALJIC No. 8.31 (Second Degree Murder — Killing Resulting From Unlawful
Act Dangerous To Life), as follows:
        “Murder of the second degree is also the unlawful killing of a human being
when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural
consequences of the act are dangerous to human life, and [¶] 3. The act was
deliberately performed with knowledge of the danger to, and with conscious
disregard for, human life. [¶] When the killing is the direct result of such an act,
it is not necessary to prove that the defendant intended that the act would result in
the death of a human being.” (CALJIC No. 8.31.)



                                          51
       “A trial court has a sua sponte duty to „instruct on a lesser offense
necessarily included in the charged offense if there is substantial evidence the
defendant is guilty only of the lesser.‟ [Citation.] Substantial evidence in this
context is evidence from which a reasonable jury could conclude that the
defendant committed the lesser, but not the greater, offense. „The rule‟s purpose
is . . . to assure, in the interest of justice, the most accurate possible verdict
encompassed by the charge and supported by the evidence.‟ [Citation.] In light of
this purpose, the court need instruct the jury on a lesser included offense only
„[w]hen there is substantial evidence that an element of the charged offense is
missing, but that the accused is guilty of‟ the lesser offense.” (People v. Shockley
(2013) 58 Cal.4th 400, 403-404, italics added.)
       A finding of express malice requires evidence of an intent to kill, whereas a
finding of implied malice requires only an “intent to do an act dangerous to human
life with conscious disregard of its danger.” (People v. Breverman (1998) 19
Cal.4th 142, 188.) Here, there is no substantial evidence that defendant intended
only to commit an action that was dangerous to human life, and did not intend to
kill. The evidence reflects that Gary Green ordered a hit on Addis, and defendant
contended at trial that if he had not carried out the hit, he would have been killed.
After Green demanded that Addis be let into the yard, Green and defendant
walked around together in the yard and ignored Addis. Thereafter, defendant told
Addis, “It‟s all right, Danny. Go ahead and play cards.” Ten or 15 minutes later,
Green and defendant walked together to the card table, and defendant stood to the
left of Addis. One or two minutes after that, defendant, with one strong blow to
Addis‟s neck, severed his jugular and subclavian veins. In a letter to another gang
member, defendant stated that he had to work to earn this murder, and that
committing the murder would elevate his status with higher ranking NLR gang



                                            52
members. These facts reflect an intent to kill, and cannot be construed to reflect
only an intent to commit a dangerous act with conscious disregard of its danger.
       Defendant directs us to cases in which courts found sufficient evidence of
implied malice based on an assault with a knife. (see, e.g., People v. Pacheco
(1981) 116 Cal.App.3d 617, 627.) He also points to evidence that he and Addis
were “having words” just before defendant stabbed him, and that Addis had
previously threatened harm to defendant. Although it is true that an assault with a
knife may reflect implied malice, the issue here is whether there is substantial
evidence that defendant acted with only a conscious disregard for human life. He
does not explain how the evidence he cites — his use of a knife, “words” before
the assault, and a threat on some prior occasion — constituted substantial evidence
that he acted only with conscious disregard for human life. On the contrary, all of
the relevant evidence reflects an intent to kill.

            4. Voluntary Manslaughter Instruction
       As previously noted, defendant requested voluntary manslaughter
instructions on a duress theory that the trial court rejected. On appeal, he contends
the trial court had a duty to instruct the jury, on its own motion, regarding three
other theories of voluntary manslaughter: sudden quarrel or heat of passion;
imperfect self-defense; and assault with a deadly weapon without malice
aforethought. He claims the trial court‟s failure to do so violated his state and
constitutional rights to due process, trial by jury, a fair trial, and a reliable penalty
determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const. art. I, §§ 7,
subd. (a), 15, 16.) The claim is meritless.
       As noted above in our discussion of defendant‟s claim of instructional error
regarding duress (ante, pp. 42-49), the element of malice may be negated by
evidence that (1) the defendant acted in a sudden quarrel or heat of passion, or (2)



                                           53
the defendant unreasonably but in good faith believed it was necessary to act in
self-defense. If either of these circumstances is found, an unlawful killing will be
voluntary manslaughter rather than murder. “Only these circumstances negate
malice when a defendant intends to kill.” (People v. Manriquez (2005) 37 Cal.4th
547, 583.)
       The heat of passion sufficient to reduce murder to manslaughter “exists
only where „the killer‟s reason was actually obscured as a result of a strong
passion aroused by a “provocation” sufficient to cause an “ „ordinary [person] of
average disposition . . . to act rashly or without due deliberation and reflection, and
from this passion rather than from judgment.‟ ” ‟ ” (People v. Carasi (2008) 44
Cal.4th 1263, 1306.) The belief required to support imperfect self-defense is that
the defendant “was in imminent danger of death or great bodily injury.” (People
v. Booker (2011) 51 Cal.4th 141, 182.) This doctrine is a “ „narrow‟ ” one and
“will apply only when the defendant has an actual belief in the need for self-
defense and only when the defendant fears immediate harm that „ “ „must be
instantly dealt with.‟ ” ‟ ” (People v. Rogers (2006) 39 Cal.4th 826, 883.)
       A trial court must instruct a jury regarding lesser included offenses
“ „ “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.” ‟ ” (People v. Sattiewhite, supra, 59 Cal.4th at p. 477.)
       Defendant identifies the same evidence to support each of these two
theories of voluntary manslaughter. First, Richard Allen, a former inmate,
testified that he heard defendant and Addis “having words” just before the fatal
attack. Second, one of defendant‟s letters to Joseph Lowery included a statement
that the victim had decided to “disrespect me, and threaten harm to me” and “to

                                          54
kill me on the yard.” Undermining this evidence, however, is the fact that Allen
also testified that the victim, who was seated at a table playing cards when
defendant approached him from behind, did not threaten defendant. Furthermore,
Allen‟s belief that the two were arguing was based solely on the tone of
defendant‟s voice, which “sounded angry.” Finally, Allen did not hear what the
two men were saying to each other. Regarding the letter, defendant did not
identify when the alleged threat occurred. This evidence, even if credited, does
not begin to demonstrate either provocation for purposes of heat of passion
voluntary manslaughter or imminence of danger of death for purposes of imperfect
self-defense voluntary manslaughter. Accordingly, the trial court was not required
to instruct on either theory.
       Last, defendant cites People v. Garcia (2008) 162 Cal.App.4th 18, in
support of his contention that the trial court should have instructed the jury
concerning voluntary manslaughter because there was evidence he committed an
assault with a deadly weapon without malice aforethought. His reliance on Garcia
is in vain, that decision having been disapproved by this court in People v. Bryant
(2013) 56 Cal.4th 959, 970, on the very point for which he cites it. In Bryant, we
held that a killing without malice in the commission of an inherently dangerous
assaultive felony “cannot be voluntary manslaughter because voluntary
manslaughter requires either an intent to kill or a conscious disregard for life.”
(Ibid.) Accordingly, this argument is foreclosed by Bryant.

            5. Expert Testimony as Circumstantial Evidence
       Defendant contends the trial court erred by failing to instruct the jury, on its
own motion, that its instructions on circumstantial evidence applied specifically to
expert testimony. He asserts the error violated his federal and state federal
constitutional rights to due process, trial by jury, a fair trial, and a reliable penalty



                                           55
determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal Const., art. I, §§ 7,
subd. (a), 15, 16, 17.) The claim is both forfeited and meritless.
       The trial court gave two standard instructions on circumstantial evidence,
CALJIC Nos. 2.01 and 2.02, neither of which expressly refers to expert
testimony.12 Characterizing expert testimony as a form of circumstantial
evidence, defendant contends the trial court should have informed the jury that the


12      As given here, CALJIC No. 2.01 stated in full: “However, a finding of
guilt as to any crime may not be based on circumstantial evidence unless the
proved circumstances are not only (1) consistent with the theory that the defendant
is guilty of the crime, but (2) cannot be reconciled with any other rational
conclusion. [¶] Further, 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. In other words, before an inference essential to establish guilt
may be found to have been proved beyond a reasonable doubt, each fact or
circumstance on which the inference necessarily rests must be proved beyond a
reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular
count permits two reasonable interpretations, one of which points to the
defendant‟s guilt and the other to his innocence, you must adopt that interpretation
that points to the defendant‟s innocence, and reject that interpretation that points to
his guilt. [¶] If, on the other hand, one interpretation of this evidence appears to
you to be reasonable and the other interpretation to be unreasonable, you must
accept the reasonable interpretation and reject the unreasonable.”
        CALJIC No. 2.02, as given here, stated in full: “The specific intent and/or
mental state with which an act is done may be shown by the circumstances
surrounding the commission of the act. However, you may not find the defendant
guilty of the crime charged in Counts 1, 2, or 3 unless the proved circumstances
are not only (1) consistent with the theory that the defendant had the required
specific intent and/or mental state but (2) cannot be reconciled with any other
rational conclusion. [¶] Also, if the evidence as to specific intent and/or mental
state permits two reasonable interpretations, one of which points to the existence
of the specific intent and/or mental state and the other to its absence, you must
adopt that interpretation which points to its absence. If, on the other hand, one
interpretation of the evidence as to the specific intent and/or mental state appears
to you to be reasonable and the other interpretation to be unreasonable, you must
accept the reasonable interpretation and reject the unreasonable.”




                                          56
principles expressed in those instructions applied to expert testimony. More
specifically, he contends the court should have instructed that “if the expert
testimony permitted two reasonable inferences, one of which points to defendant‟s
innocence and the other to his guilt, the jury must adopt that interpretation that
points to the defendant‟s innocence, and reject that interpretation that points to his
guilt.”
          Defendant does not assert that the circumstantial evidence instructions were
incorrect statements of law. “A party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying
language.” (People v. Lang (1989) 49 Cal.3d 991, 1024; accord, People v.
Livingston (2012) 53 Cal.4th 1145, 1166; People v. Lewis (2001) 26 Cal.4th 334,
380.) Accordingly, the claim is forfeited.
          The claim is also without merit. Defendant cites no authority for the
proposition that a trial court is required to specify the evidence or the issues to
which the instructions regarding circumstantial evidence apply. And for good
reason: how a general instruction applies to specific evidence or theories is an
argument for counsel to make.

              6. Refused Modification of CALJIC No. 2.11.5
          Defendant contends the trial court erred when it denied his proposed
modification to CALJIC No. 2.11.5 (Unjoined Perpetrators of the Same Crime).
His asserts the error violated his federal and state constitutional rights to a fair
trial, to a trial by jury, to present a defense, and to a reliable penalty determination.
(U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal Const. art. I, §§ 7, subd. (a). 15,
16, 17.) The claim is meritless.




                                           57
       The trial court gave CALJIC No. 2.11.5 as follows: “There has been
evidence in this case indicating that a person other than defendant was or may
have been involved in the crime for which that defendant is on trial. [¶] There
may be many reasons why that person is not here on trial. Therefore, do not
speculate or guess as to why the other is not being prosecuted in this trial or
whether he has been or will be prosecuted. Your sole duty is to decide whether
the People have proved the guilt of the defendant on trial.”
       The instruction was intended to apply to defendant‟s cellmate, Gary Green,
who participated in the attack on Addis, but was not on trial. An internal rules
violation investigation by the Department of Corrections concluded that Green
was involved in the conspiracy to assault Addis and noted there was information
that Green had ordered the hit on Addis. Green was assessed a 360-day credit
loss. However, 20 days after this disciplinary hearing, he was paroled. Based on
this record, defendant‟s gang expert, Steven Rigg, testified that Green was not
punished for his participation in the conspiracy.
       In light of this evidence, defense counsel requested a modification of
CALJIC No. 2.11.5 to include the following language: “You may, however,
consider the actions taken against Mr. Green by members of the Department of
Corrections to the extent same have been proved in this case as they bear upon
issues of fact which you are asked to determine.” The prosecutor, while noting the
defense was free to argue its theory that correctional officers were complicit in the
assault on Addis, objected to the modification of CALJIC No. 2.11.5 because it
“takes away what this jury instruction is saying.” That is, it invited speculation as
to why Green had not been prosecuted for the Addis murder. Defense counsel
argued the modification “clarif[ied] the behavior of the Department of Corrections
toward Mr. Green, independent of any prosecutorial decisions that may be relevant
to the facts in this case.” The trial court rejected the proposed modification.

                                          58
        There was no error. Defendant does not contend, nor could he, that
CALJIC 2.11.5 was either inapplicable to this case or flawed as given. (See
People v. Brown (2003) 31 Cal.4th 518, 560 [purpose of the instruction “ „is to
discourage the jury from irrelevant speculation about the prosecution‟s reasons for
not jointly prosecuting all those shown by the evidence to have participated in the
perpetration of the charged offenses, and also to discourage speculation about the
eventual fates of unjoined perpetrators‟ ”].) The proposed modification would
have simultaneously instructed the jury it could not consider the prosecution‟s
reasons for not prosecuting Green, but it could consider the actions of the
Department of Corrections in giving him assertedly lenient punishment for his part
in the attack on Addis. As the prosecutor here noted, this conflation of the actions
of the District Attorney‟s Office and the Department of Corrections could only
have confused the jury and potentially eviscerated the instruction. Accordingly,
the trial court properly rejected the proposed modification.
        Moreover, even without the proposed modification, nothing prevented the
defense from making its argument that the assertedly lenient treatment of Green by
the Department of Corrections was evidence of complicity by some correctional
officers in the attack on Addis. Therefore, his claims of error and prejudice both
fail.

        G. Cumulative Error
        Because we have found no error in the guilt phase, there is no cumulative
prejudice to address.




                                         59
                            III. PENALTY PHASE CLAIMS

       A. Claims Related to Defendant’s Convictions for Assault by a Life
          Prisoner with Malice Aforethought

            1. Applicability of Section 4500 to Defendant at the Time of the
                Offenses
       Defendant contends his two convictions of assault by a life prisoner with
malice aforethought must be reversed because he was not “undergoing a life
sentence” (§ 4500) at the time he assaulted Addis (count 2) and Matthews (count
3). Citing section 1170.1, which addresses when a consecutive term imposed for a
felony committed in prison commences, defendant claims that at the time he
committed the assaults, he was still serving a sentence for burglary, and his life
sentence had not yet begun. He contends that his state and federal constitutional
rights to due process, trial by jury, and a reliable penalty determination require
reversal of his convictions. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal.
Const., art. I, §§ 7, subd. (a), 15, 16, 17.)
       Preliminarily, the People assert that defendant has forfeited this claim
because he failed to make the argument below and, indeed, did not contest
evidence presented by the prosecution in the form of prison records to prove he
was a life prisoner at the time of the offenses. Defendant casts his claim as one of
sufficiency of the evidence to support his convictions, and on that basis, maintains
that such a claim may be raised for the first time on appeal. (See People v. Butler
(2003) 31 Cal.4th 1119, 1126 [substantial evidence claim can be raised on appeal
even if it was not argued at trial].) Assuming, without deciding, that the claim is
properly raised, it is without merit.
       Section 4500 states in pertinent part: “Every person while undergoing a life
sentence, who is sentenced to state prison within this state, and who, with malice
aforethought, commits an assault upon the person of another with a deadly weapon


                                            60
or instrument, or by any means of force likely to produce great bodily injury is
punishable with death or life imprisonment without possibility of parole” if the
victim dies. (Italics added.) Section 1170.1, subdivision (c) (hereinafter section
1170.1(c)) addresses when such a sentence commences if it is consecutive to a
term already being served. It provides that when “any person [is] convicted of one
or more felonies committed while the person is confined in the state prison . . . and
the law either requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions that the person
is required to serve consecutively shall commence from the time the person would
otherwise have been released from prison.” (§ 1170.1(c), italics added.)
        Here the evidence shows the following: In June 1992, defendant was
sentenced to an eight-year prison term after he pleaded guilty to first degree
burglary. The Department of Corrections calculated his earliest release date for
this offense would be February 10, 2000. In September 1995, while still serving
his burglary sentence, defendant pleaded guilty to possession of a deadly weapon
by an inmate (§ 4502) which, because it was his third strike, resulted in a sentence
of 25 years to life with the possibility of parole, consecutive to his burglary
sentence. In defendant‟s chronological history log maintained by the Department
of Corrections, an entry dated November 13, 1995, states: “Life term begins
2/10/2000.” Defendant‟s assaults on Addis and Matthews were committed in
1997.
        Based on this record, defendant contends he was not “undergoing a life
sentence” when he assaulted his fellow inmates in 1997; rather, he was still
serving his burglary sentence. We rejected a similar argument in People v.
McNabb (1935) 3 Cal.2d 441 (McNabb), which involved section 4500‟s
predecessor, former section 246. While McNabb was on parole for two robberies
for which he had been sentenced to two determinate sentences, he committed two

                                          61
more robberies, for which he was sentenced to two terms of five years to life.
Upon his conviction for these later robberies, his parole was revoked and he was
required to serve the rest of the two determinate sentences. Thereafter, while
trying to escape from prison, he killed a fellow inmate. McNabb was tried and
sentenced to death under former section 246, which provided: “ „Every person
undergoing a life sentence in a state prison of this state, who, with malice
aforethought, commits an assault upon the person of another with a deadly weapon
or instrument, or by any means of force likely to produce great bodily injury, is
punishable with death.‟ ” (McNabb, at p. 444.)
       On appeal, McNabb contended that he was not serving a life sentence when
he attempted to escape because his life sentences for the later robberies, being
consecutive to the determinate sentences for the earlier robberies on which his
parole had been revoked, had not yet commenced. We rejected his argument:
“The fact that appellant McNabb was returned to prison upon two convictions of
first degree robberies committed while released on parole and was required to
serve out the uncompleted terms of imprisonment by reason of breaking the terms
of his parole did not suspend the force of commitments upon which he was held.
Had he been discharged or released from serving the uncompleted terms by a writ
of habeas corpus or by pardon he would have still been held as a prisoner serving
a life term on said later commitments. We think the contention . . . to the effect
that a person is not undergoing a life sentence within the purpose and meaning of
the law, when imprisoned on a judgment which imposes the longest term known to
the law and to which nothing further may be added, because, forsooth, he is also
held on a prior uncompleted sentence for years does not stand the test of reason.”
(McNabb, supra, 3 Cal.2d at p. 457.)
       We dismissed the defendant‟s reliance on former section 669, which
provided that when a person was convicted of multiple crimes, the imprisonment

                                         62
for each term was to “commence at the termination of the [preceding] term of
imprisonment.” (Former § 669, as amended by Stats. 1927, ch. 626, § 1, p.
1056.)13 “Section 669 . . . is not germane to the subject. It has to do with time
served in terms less than life. It does not purport to say that a person is not
undergoing a life sentence when delivered on a certified copy of the judgment of
conviction to the warden of the state prison. The prisoner is undergoing a life
sentence whatever may happen and he is held as such a prisoner by virtue of said
judgment.” (McNabb, supra, 3 Cal.2d at p. 457.)
       Finally, we pointed out that former section 246 “was enacted as a
disciplinary regulation and as a means of protection to prisoners themselves
against the assaults of the vicious, and also to protect the officers who are required
to mingle with the inmates, unarmed. . . . It is applicable to the facts of
[McNabb‟s] case in every sense.” (McNabb, supra, 3 Cal.2d at p. 458.)
       In reliance on our decision in McNabb, the Court of Appeal in People v.
Superior Court (Bell) (2002) 99 Cal.App.4th 1334 (Bell), rejected a claim that a
defendant‟s attack on another inmate did not occur while he was “undergoing a
life sentence” (§ 4500) because he was serving a determinate term at the time of
the attack. The court noted that the phrase “undergoing a life sentence” has
remained constant from the enactment of former section 246 through various

13     In 1929, when McNabb was convicted of the two later robberies, former
section 669 provided: “When any person is convicted of two or more crimes the
former imprisonment to which he is sentenced upon the second or other
subsequent conviction must commence at the termination of the first term of
imprisonment to which he shall be adjudged, or at the termination of the second or
other subsequent term of imprisonment, as the case may be; provided, that in
exceptional cases the judgment, in the discretion of the court, may direct that such
terms of imprisonment, or any of them, shall run concurrently.” (Stats. 1927,
ch. 626, § 1, p. 1056.)




                                          63
amendments to section 4500, and the Legislature‟s intent has also remained the
same — protecting guards and other prisoners from inmates who think they have
“ „nothing left to lose‟ ” by committing crimes in prison. (Bell, supra, 99
Cal.App.4th at p. 1341; see id. at pp. 1340-1341, citing McNabb, supra, 13 Cal.2d
441.) Bell further observed that in In re Cowen (1946) 27 Cal.2d 637, we
explained that former section 669, which required that judgments provide whether
multiple terms shall be served concurrently or consecutively, does “ „not . . .
require that for all purposes, when consecutive sentences are directed, the
defendant shall be regarded as imprisoned on only one charge at a time.‟ ” (Bell,
at p. 1343, quoting Cowen, at p. 648.) Bell acknowledged that former section 669
was amended after In re Cowen was decided, but concluded that “[a]ccording to
the plain language of section 669, the mandate that a determinate sentence be
served before a consecutive life sentence is for the purpose of calculating parole
eligibility, and not for the purpose of determining whether the prisoner is
undergoing a life sentence within the meaning of section 4500.” (Bell, at p. 1343.)
       Defendant attempts to distinguish McNabb and Bell on the basis that this
case is governed by section 1170.1(c), which specifically addresses consecutive
sentences with respect to crimes committed while in prison, rather than section
669, which more generally addresses concurrent and consecutive sentences. As
noted above, section 1170.1 provides that when an individual is convicted of
felonies in prison and consecutive sentences are imposed, “the term of
imprisonment for all [such] convictions . . . shall commence from the time the
person would otherwise have been released from prison.” (§ 1170.1(c).) Based on
this language, defendant reasons that his life term under the Three Strikes law for
possession of a weapon in prison would not have begun until the earliest date on
which he could have been released with respect to his determinate term for the



                                         64
burglaries that led to his imprisonment. He contends that date would have been
February 10, 2000, more than two years after he assaulted Addis.
       Defendant‟s argument is unpersuasive for at least two reasons. First, it
ignores the different language and functions of the two statutes. Section 1170.1(c)
addresses when an inmate begins “to serve” consecutive sentences, whereas
section 4500 addresses the punishment to be imposed for specified assaults
committed “while undergoing a life sentence.” Section 1170.1, like section 669, is
a technical sentencing statute that addresses the time during which an inmate is
actually serving a particular prison term, and does not purport to have any bearing
on the question of whether an individual is undergoing a life sentence for purposes
of section 4500. Furthermore, we presume that in enacting section 1170.1(c), the
Legislature was aware of not only section 4500, but also the case law broadly
interpreting the phrase “undergoing a life sentence” in that statute. Had the
Legislature intended for section 1170.1(c) to modify in any way the latter statute,
it could have said so.
       Second, defendant‟s argument would undermine the shared purpose of
sections 1170.1(c) and 4500 — deterring inmates from committing crimes in
prison. “Section 1170.1(c) applies to felonies committed when the defendant is
confined in a state prison. The statutory scheme makes clear that such felonies,
i.e., those felonies committed in prison, are exempt from the general sentencing
scheme.” (People v. White (1988) 202 Cal.App.3d 862, 869.) The reason such
felonies are treated differently is that “[t]he Legislature wanted in-prison crimes to
be punished more severely than crimes committed „on the „outside.‟ ” (Ibid.) It
would be inconsistent with the legislative purpose of these statutes to construe
section 1170.1(c) to preclude the application of section 4500 to inmates who have
not yet begun serving an imposed and pending life sentence because they are still
serving a determinate sentence.

                                         65
       Finally, defendant contends that because his Three Strikes conviction could
have been overturned on appeal before he began to serve it, he was not a person
undergoing a life sentence when he assaulted Addis. Of course, any life sentence
consecutive to a determinate sentence could potentially be modified by
commutation, pardon, a statutory change, an ultimately successful appeal or
habeas corpus petition, or even avoided by the death of the inmate during the
determinant term. Such speculative outcomes do not undermine the core
reasoning of McNabb and Bell that the phrase “undergoing a life sentence” was
intended to encompass an inmate who is subject to such a sentence, even if he or
she has not begun “serving” that sentence.

           2. Whether Section 4500 Sufficiently Narrows the Class of Individuals
              Eligible for the Death Penalty
       Defendant contends that section 4500 fails to sufficiently narrow the class
of individuals eligible for the death penalty in violation of his rights to a due
process, and a fair trial, and the proscription against cruel and unusual punishment.
(U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const. art. I, §§ 7, subd. (a), 15,
16, 17.) We disagree.
       Under section 4500, a person undergoing a life sentence is eligible for a
death sentence if found guilty of an assault with a deadly weapon or with force
likely to produce great bodily injury, with malice aforethought, leading to the
death of the victim. In effect, it authorizes imposition of the death penalty for
what could be a second degree murder, i.e., an unlawful killing with malice
aforethought. In contrast, the vast majority of offenses eligible for the death
penalty are various forms of first degree murder. (§ 190.2.) Nonetheless, as
discussed below, the legislative determination that life prisoners who commit fatal
aggravated assaults are potentially deserving of death is a venerable one; versions
of this statute have existed for more than a century. (See former § 246, added by


                                          66
Stats. 1901, ch. 12, § 1, p. 6.) Moreover, the statute is based on rationales
involving security and deterrence in prison settings (see McNabb, supra, 3 Cal.2d
at p. 457; Bell, supra, 99 Cal.App.4th at pp. 1339-1340), and California is scarcely
alone in recognizing that killings committed by life prisoners in prison constitute a
special class of homicide as to which the severest penalty should potentially apply.
       Section 4500 is a death eligibility statute as opposed to a death selection
statute. (See Tuilaepa v. California (1994) 512 U.S. 967, 971-972.) A defendant
convicted of the offense defined by section 4500 becomes eligible for the death
penalty or its alternative, life without the possibility of parole. Thereafter, the jury
selects the penalty following a penalty phase trial at which it considers evidence in
aggravation and mitigation under section 190.3. The selection process requires an
“ „individualized determination‟ ” of the appropriate penalty based on “ „the
character of the individual and the circumstances of the crime.‟ ” (Tuilaepa, at p.
972.) This “requirement is met when the jury can consider relevant mitigating
evidence of the character and record of the defendant and the circumstances of the
crime.” (Ibid.) The requirement of an individualized determination does not,
however, apply to the eligibility stage. (Id. at p. 973.)
       The distinction between the eligibility and selection phases is significant in
terms of the “differing constitutional treatment [the United States Supreme Court
has] accorded those two aspects of capital sentencing. It is in regard to the
eligibility phase that [the court has] stressed the need for channeling and limiting
the jury‟s discretion to ensure that the death penalty is a proportionate punishment
and therefore not arbitrary or capricious in its imposition. In contrast, in the
selection phase, [the court has] emphasized the need for a broad inquiry into all
relevant mitigating evidence to allow an individualized determination.”
(Buchanan v. Angelone (1998) 522 U.S. 269, 275-276.)



                                          67
       “To pass constitutional muster, a capital sentencing scheme [1] must
„genuinely narrow the class of persons eligible for the death penalty and [2] 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.) With respect to the first requirement, we note that the class of
individuals potentially subject to the death penalty under section 4500 is quite
circumscribed: persons serving a life sentence who, with malice aforethought,
assault another with a deadly weapon or instrument, or by any means of force
likely to produce great bodily injury, resulting in the death of the victim within a
year and a day. (See Woodson v. North Carolina (1976) 428 U.S. 280, 287, fn. 7
[describing as “an extremely narrow category of homicide” “murder [committed]
by a prisoner serving a life sentence”].) The statute easily satisfies the
requirement that an eligibility factor “apply only to a subclass of defendants
convicted of [homicide].” (Tuilaepa v. California, supra, 512 U.S. at p. 972.)
       With respect to the second requirement — reasonable justification for a
more severe sentence — we reiterate 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.” (McNabb, supra, 3 Cal.2d at p. 458; accord, Bell,
supra, 99 Cal.App.4th at p. 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

                                           68
(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.
       Defendant contends section 4500 fails to sufficiently narrow the subclass of
defendants eligible for the death penalty because it does not distinguish between
different types of life prisoners, such as those serving a life term for murder and
someone like him whose life sentence was imposed under the Three Strikes law
for nonviolent felonies.14 There is no requirement at the eligibility stage that a
narrowly circumscribed class of defendants for whom the death penalty is
reasonably justified be further distinguished according to the particular
circumstances that led to their eligibility. Rather, that is a question that goes to the
selection stage and its individualized determination requirement. Only at that
point does the Eighth Amendment require “a broad inquiry into all relevant
mitigating evidence to allow an individualized determination.” (Buchanan v.
Angelone, supra, 522 U.S. at p. 276.) Although the reason why a defendant was a
life prisoner at the time of the violation of section 4500 may be a relevant
consideration for the jury at the selection stage, that reason is irrelevant to the
justification for including such persons in the death-eligible class; the reasons
underlying section 4500 apply with equal force to life prisoners who have




14      Defendant‟s life sentence was imposed as a result of his 1995 guilty plea to
a third strike of possession of a weapon in prison (§ 4502) and his admission to
two prior felony convictions for burglary.




                                           69
committed prior violent crimes and those who face lifetime imprisonment for
nonviolent offenses.15
       Defendant next argues that “[d]evelopments since [prior] decisions
upholding [earlier versions of] section 4500 and its predecessor statutes have
undermined the retribution, deterrence and safety rationales offered to justify
death eligibility on life prisoner status.” In essence, defendant‟s claim is that,
because prior versions of section 4500 would not pass constitutional muster in
light of evolving Eighth Amendment jurisprudence, the underlying legislative
justifications for punishing life prisoners who, with malice aforethought, commit
fatal assaults in prison have also been eroded over time. As explained below, the
argument fails because the legislative justifications remain valid.
       Until 1977, section 4500 and its predecessor, former section 246, mandated
the death penalty for life prisoners who committed an aggravated assault,
regardless of whether the victim died. The original statute, enacted in 1901,
provided: “Every person undergoing a life sentence in a state prison of this state,
who, with malice aforethought, commits an assault upon the person of another
with a deadly weapon or instrument, or by any means of force likely to produce
great bodily injury, is punishable with death.” (Stats. 1901, ch. 12, § 1, p. 6.) In


15      Defendant‟s reliance on Tuilaepa v.California, supra, 512 U.S. 967, is
misplaced. As he concedes, Tuilaepa concerns death selection, not death
eligibility. Moreover, Tuilaepa‟s observation that some sentencing factors may be
unconstitutionally vague if they lack “some „common-sense core of meaning . . .
that criminal juries should be capable of understanding‟ ” (id. at p. 975) does not
support defendant‟s assertion that section 4500 is unconstitutionally vague. As
Tuilaepa itself notes, “[t]he eligibility decision fits the crime within a defined
classification.” (Id. at p. 973.) Section 4500 meets this standard. Similarly,
Godfrey v. Georgia (1980) 446 U.S. 420, also cited by defendant, involved a
vagueness challenge to a sentencing factor. (Id. at pp. 422-423.)




                                          70
1941, section 246 was repealed and reenacted, renumbered as section 4500, but
textually remained substantially the same. (Stats. 1941, ch. 106, §§ 1, 15, pp.
1080, 1124.) In 1977, following the restoration of the death penalty in California
(see People v. Frierson (1979) 25 Cal.3d 142, 172-175), section 4500 was
amended to its present form. The amendment eliminated the mandatory death
penalty provision and limited eligibility for the death penalty to aggravated
assaults with malice aforethought resulting in death, with the alternative of life
without the possibility of parole. (Stats. 1977, ch. 316, § 21, p. 1264.)
       Defendant cites a number of decisions by this court upholding those earlier
and now superseded versions of the statute against various constitutional
challenges (see, e.g., People v. Vaughn (1969) 71 Cal.2d 406, 418 [imposition of
death penalty under section 4500 for an assault that did not result in the death of
the victim did not violate the Eighth Amendment‟s proscription against cruel and
unusual punishment]; People v. Wells (1949) 33 Cal.2d 330, 337 [holding that
mandatory death penalty imposed under section 4500 on prisoner serving an
indeterminate sentence “infringes no constitutional limitation”]; People v. Finley
(1908) 153 Cal. 59 [upholding mandatory death penalty imposed on a life term
defendant convicted under former section 246 against an equal protection
challenge to the statute]), and asserts that none of these earlier decisions would
survive scrutiny under current Eighth Amendment jurisprudence because the
Eighth Amendment now prohibits the death penalty for nonfatal assaultive crimes,
and also prohibits mandatory death penalty statutes. (See, e.g., Kennedy, supra,
554 U.S. 407 [striking down a statute authorizing the death penalty for rape of a
child]; Woodson v. North Carolina, supra, 428 U.S. 280 [striking down statute
making the death penalty mandatory for first degree murder]; Graham v. Superior
Court (1979) 98 Cal.App.3d 880 [declaring unconstitutional a 1973 version of
section 4500 that contained a mandatory death penalty provision].) From this

                                         71
premise, he contends that the legislative justifications offered in support of the
statute in our earlier opinions — deterrence, retribution, and institutional security
— have been eroded and are now constitutionally suspect.
       Defendant‟s logic is flawed and the cases on which he relies are inapposite.
Decisions rejecting constitutional challenges to prior versions of the statute
containing elements that would no longer be constitutionally permissible are
obviously not controlling in our examination of the current version of the statute.
Nonetheless, the discussions in those earlier decisions of the threats of violence
posed by prisoners sentenced to life terms as justification for the policy of
potentially imposing the death penalty on them remain valid and support the
current version of section 4500.16 The United States Supreme Court continues to
recognize that penal statutes may legitimately rest on one or more of “three
principal rationales: rehabilitation, deterrence, and retribution” (Kennedy, supra,
554 U.S. at p. 420.) Section 4500, as already noted, singles out a particular
subclass of defendants who commit lethal assaults with malice aforethought —
those imprisoned for life — and makes them eligible for the death penalty because
the Legislature has determined their particular status as life prisoners requires this
exceptional measure to protect correctional officers and other inmates. With the

16      For example, in People v. Finley, supra, 153 Cal. at page 61, this court
observed that “it has long been a part of judicial knowledge, of legislative
knowledge, and, indeed, of general knowledge, that convicts in penal institutions
undergoing sentences for life, constitute a most reckless and dangerous class. The
conditions of their sentences destroy their hopes and with the destruction of hope
all bonds of restraint are broken and there follows a recklessness leading to brutal
crimes. . . . They were crimes of violence committed not alone against fellow
inmates, but upon the custodians, officers, and guards of the institutions. . . .
Under this well-recognized condition of affairs it seemed expedient to the
legislature to meet the situation by the enactment of section 246 of the Penal
Code.”




                                          72
growth in the prison population and prison gangs, this rationale applies with equal
or greater force today compared to when it was first articulated over a hundred
years ago. Accordingly, we reject defendant‟s assertion that the statute‟s rationale
has been superseded or undermined merely because earlier versions of the statute
would no longer pass constitutional muster.
       The opinion upon which defendant places primary reliance, Sumner v.
Shuman (1987) 483 U.S. 66, is inapposite. In Sumner, the United States Supreme
Court declared unconstitutional a Nevada statute that mandated the death penalty
for prisoners who committed murder while undergoing a sentence of life without
the possibility of parole. Under Nevada law, life without the possibility of parole
could be imposed for crimes other than murder, such as kidnapping, rape and
battery with substantial bodily harm. (Id. at pp. 80-81.) The Supreme Court noted
that 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.” (Id. at p. 81.) The court further noted that “a guided-discretion
sentencing procedure does not undermine any deterrent effect that the threat of the
death penalty may have” (id. at p. 83), and that a guided-discretion procedure does
not necessarily allow an inmate to avoid retribution (id. at pp. 83-84). The court
did not, however, question the legitimacy of deterrence and retribution as
rationales. In short, the statute in Sumner differs from section 4500 in crucial
respects, and defendant‟s reliance on Sumner is misplaced.
       Defendant also cites two studies assertedly demonstrating that the death
penalty has an insignificant deterrent effect on prison murders.17 The weight and

17    Defendant cites Sorensen & Pilgrim, An Actuarial Risk Assessment of
Violence Posed by Capital Murder Defendants (2000) 90 J. Crim. L. &
                                                            (footnote continued on next page)


                                          73
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.
        Next, defendant contends that an “interjurisdictional comparison
demonstrates a lack of societal consensus that a murder by a life prisoner”
deserves the death penalty. We are not persuaded.
        In evaluating whether there was a consensus against making the crime of
rape of a child punishable by death, the United States Supreme Court examined
both “[t]he history of the death penalty for the crime of rape” and the current
status of such statutes in the United States. (Kennedy, supra, 554 U.S. at p. 422.)
The court traced an historical movement away from imposing the death penalty for
rape from its high point in 1925 when 18 states, the District of Columbia and the
federal government had such statutes, to the post-Furman (Furman v. Georgia
(1972) 408 U.S. 238) landscape, when only Louisiana and five other states had
reenacted such statutes. The court further noted that the statutes of four of those
states were more restrictive than Louisiana‟s law, because they required a prior
conviction for rape as a condition for death eligibility while the remaining state,
Georgia, required aggravating circumstances including, but not limited to, a prior
conviction. (Kennedy, supra, 554 U.S. at p. 423.) “By contrast, 44 States have
not made child rape a capital offense. As for federal law, Congress in the Federal

(footnote continued from previous page)

Criminology 1251, and Marquart & Sorensen, A National Study of the Furman-
Commuted Inmates: Assessing the Threat to Society from Capital Offenders
(1989) 23 Loyola L.A. L.Rev. 5.




                                          74
Death Penalty Act of 1994 expanded the number of federal crimes for which the
death penalty is a permissible sentence, including certain nonhomicide offenses;
but it did not do the same for child rape or abuse. [Citation.] Under 18 U.S.C.
§ 2245, an offender is death eligible only when the sexual abuse or exploitation
results in the victim‟s death.” (Ibid.)
       The court drew comparisons between these statistics and those it had
examined in three earlier cases in which it had held the death penalty
unconstitutional when imposed upon certain types of aiders and abettors to felony
murder (Enmund v. Florida (1982) 458 U.S. 782), the intellectually disabled
(Atkins v. Virginia, supra, 536 U.S. 304), and juveniles (Roper v. Simmons (2005)
543 U.S. 551). (Kennedy, supra, 554 U.S. at pp. 425-426.) As in those cases, the
court‟s survey led it to conclude that the “evidence of a national consensus with
respect to the death penalty for child rapists . . . shows divided opinion but, on
balance, an opinion against it.” (Id. at p. 426.) The court concluded: “After
reviewing the authorities informed by contemporary norms, including the history
of the death penalty for this and other nonhomicide crimes, current state statutes
and new enactments, and the number of executions since 1964, we conclude there
is a national consensus against capital punishment for the crime of child rape.”
(Id. at p. 434.)
       As an initial matter, it is significant that the court in Kennedy explicitly and
repeatedly referred to the fact that the statute at issue authorized the death penalty
for a crime that, while still devastating for the victim, did not result in the victim‟s
death. (See, e.g., Kennedy, supra, 554 U.S. at p. 435 [acknowledging that “there
are moral grounds to question a rule barring capital punishment for a crime against
an individual that did not result in death”]; id. at p. 437 [“the death penalty should
not be expanded to instances where the victim‟s life was not taken”]; id. at p. 439
[recognizing the possibility of arbitrary results in cases of heinous crimes that may

                                           75
“overwhelm a decent person‟s judgment” and refusing to “sanction this result
when the harm to the victim, though grave, cannot be quantified in the same way
as death of the victim”].) Of course, for a violation of section 4500 to be death
eligible, the victim must die (within a year and a day) from the assault.
Accordingly, a major aspect of the court‟s reasoning in Kennedy does not apply
here.
        Defendant nonetheless contends that there is no “societal consensus” to
support imposition of death for a life prisoner who kills. In support of his claim,
he cites the high court‟s decisions in Kennedy, Roper, Atkins, and Enmund, but his
analysis bears only a superficial resemblance to those opinions‟ rigorous
examination of historical, judicial, and legislative trends regarding the existence of
an evolving national consensus against authorization of imposition of the death
penalty on a class of defendants. Instead, he rests his argument solely on his
assertion that 75 percent of American jurisdictions have rejected using prisoner
status to determine death eligibility. His statistical reading is tendentious. In fact,
based on his statistics, it is more accurate to say that the vast majority of
jurisdictions with the death penalty regard custody status as a significant factor in
either death penalty eligibility or death penalty selection, or for both purposes. Of
the 31 states and the federal government whose laws currently authorize
imposition of the death penalty, the laws of 29 states and the federal government
use custody status as a death-eligibility or a death-selection factor, or both. It
appears that only Nebraska and South Carolina do not explicitly include custodial
status as a death-eligibility or selection factor.
        Defendant does not cite, nor has our research found, a single judicial
decision from any death penalty jurisdiction that has held that the use of custodial
status as either an eligibility or a selection factor for the death penalty violates the
Eighth Amendment. Nor has defendant shown that any jurisdiction that reenacted

                                           76
the death penalty following Furman v. Georgia, supra, 408 U.S. 238, omitted
custodial status as either an eligibility or selection factor for purposes of the death
penalty. Thus, defendant fails to demonstrate the existence of an historical
trajectory supporting a conclusion that the majority, or, indeed, any, of the death
penalty jurisdictions has abandoned custody status as a factor for imposing the
death penalty.
       Instead, defendant attempts to parse the statistical evidence to argue that we
should look only at states whose statutes mirror section 4500, that is, statutes that
use life term status as an eligibility factor and apply the death penalty to killings
that do not rise to the level of first degree murder. Using this metric, defendant
concludes that only eight states have a law comparable to section 4500.
       However, the question here is whether custodial status is used by a majority
of jurisdictions as a basis for potentially imposing the death penalty, not how
individual jurisdictions use that factor. In other words, is there a consensus that
the death penalty is not an appropriate punishment for a fatal aggravated assault by
a life prisoner? Moreover, in this case, where defendant was also convicted of
first degree murder, he would have faced the death penalty in every jurisdiction
that uses custodial status as either an eligibility or selection factor. Even granting
that only a few states have statutes mirroring section 4500, this number is
meaningless without a rigorous analysis of the type undertaken by the United
States Supreme Court, which examines not simply numbers, but statutory history
and relevant judicial and legislative actions, to answer the national consensus
question. Defendant provides none of that, and as mentioned, we have uncovered
nothing that suggests a majority of the country rejects the death penalty in
circumstances covered by section 4500.
       Finally, defendant asserts the status of life prisoner is overbroad because it
does not further distinguish between those inmates whose life sentence was the

                                          77
result of a violent crime and those, like himself, whose life sentence is premised
on a Third Strike as to which the predicate crimes were nonviolent felonies.
        As noted earlier, however prisoners subject to life sentences came to hold
that status, they are a small and distinct subclass of those who commit homicides
punishable as murder. Additionally, the rationale for making such defendants
death eligible — to deter and punish crimes by individuals acting under the belief
they have nothing left to lose — applies to all life prisoners regardless of the
reason for their life sentences. Furthermore, to the extent the reasons for a
defendant‟s life sentence might mitigate his or her punishment, that is an issue that
can be raised at the penalty phase.
        For these reasons, we reject defendant‟s constitutional challenge to section
4500‟s death eligibility provision.

        B. Prosecutorial Discretion in Seeking Death Penalty
        Defendant contends that prosecutorial discretion in seeking the death
penalty violates his federal and state constitutional rights to due process and equal
protection, and constitutes “the arbitrary and capricious enforcement of the death
penalty.” (U.S. Const., 5th, 8th & 14th Amends.; Cal. Const., art. I, § 7, subd,
(a).)
        We have consistently held that “prosecutorial discretion to select those
eligible cases in which the death penalty actually will be sought does not, in and of
itself, evidence an arbitrary and capricious capital punishment system, nor does
such discretion transgress the principles underlying due process of law, equal
protection of the laws, or the prohibition against cruel and unusual punishment.”
(People v. Crittenden (1994) 9 Cal.4th 83, 152.) As we explained in an early
decision addressing the issue: “Many circumstances may affect the litigation of a
case chargeable under the death penalty law. These include factual nuances,



                                          78
strength of evidence, and, in particular, the broad discretion to show leniency.
Hence, one sentenced to death under a properly channeled death penalty scheme
cannot prove a constitutional violation by showing that other persons whose
crimes were superficially similar did not receive the death penalty. [Citations.]
The same reasoning applies to the prosecutor‟s decisions to pursue or withhold
capital charges at the outset.” (People v. Keenan (1988) 46 Cal.3d 478, 506.) In
subsequent cases, we rejected the argument that we should reexamine this holding
in light of the high court‟s voting rights decision in Bush v. Gore (2000) 531 U.S.
98. (People v. Bennett (2009) 45 Cal.4th 577, 629, fn. 19.) We continue to adhere
to that holding. (See, e.g., People v. Bryan, Smith and Wheeler (2014) 60 Cal.4th
335, 469; People v. Scott (2011) 52 Cal.4th 452, 495; People v. Gamache (2010)
48 Cal.4th 347, 406.) Nothing in defendant‟s arguments persuades us that our
earlier rulings were incorrect. Furthermore, the reasoning of those cases applies
with equal force to the exercise of prosecutorial discretion to seek the death
penalty under section 4500.

       C. Admission of Evidence of Defendant’s Criminal History
       Defendant contends the trial court abused its discretion when it allowed the
prosecutor to elicit from a defense expert on cross-examination details of
defendant‟s theft-related prior offenses and juvenile adjudications. He contends
the ruling also violated his federal and state constitutional rights to due process, a
fair trial, trial by jury, and a reliable penalty determination. (U.S. Const., 5th, 6th,
8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a). 15, 16, 17.) The claim is
meritless.

             1. Background
       James Cuevas testified for the defense in his capacity as a casework
specialist for the California Youth Authority (CYA), now known as the California



                                           79
Division of Juvenile Justice, a position he likened to that of a social worker.
Cuevas described his function as providing “diagnostic evaluations for the court”
and the CYA. Although not a psychologist, his academic credentials included
courses in psychology and “some basic understanding of various mental health
issues.” His formal degree was a masters in social work.
       In 1987, defendant, then 19 years old, pleaded guilty to two counts of
burglary and one count of grand theft auto. Although an adult, the court referred
defendant to the CYA in lieu of state prison under a statute that allowed the
transfer of individuals under 21 to the CYA. Cuevas led the team that assessed
defendant to determine “a treatment plan and also potential placement for his
benefit.” This assessment was memorialized in a 97-page document labeled
Daniel Landry Mental Health Records. On direct examination, Cuevas reviewed
the report and testified generally to its observations and conclusions regarding
defendant‟s mental health and treatment plan. For example, he testified about
defendant‟s troubled family life, including the fact that his parents were both deaf
and had emotional problems. He also stated that defendant reported he had been
sexually molested on two occasions. He reviewed defendant‟s placements as a
juvenile in institutions for juveniles with emotional problems, and he reported that
defendant told him he had escaped from juvenile hall. Cuevas recounted that
defendant seemed depressed and suicidal, and that he had recommended that
defendant receive intensive individual therapy as well as group therapy and be
enrolled in educational and vocational programs.
       Over defendant‟s objection, and following an Evidence Code section 402
hearing, the trial court allowed the prosecutor to cross-examine Cuevas about the
details of the three offenses for which defendant was referred to the CYA, as well
as prior juvenile theft-related adjudications. At the evidentiary hearing, Cuevas
stated that defendant‟s criminal history was “[e]xtremely important” to his

                                         80
assessment of defendant and his recommendations as to treatment and placement.
In addition, in response to a question from the court, he explained that the specific
details of a prior offense were relevant to a treatment plan “because we may send
him to a placement program . . . that will deal with individuals with that particular
problem. . . . So we look at the pattern of behavior.”
       On cross-examination, Cuevas again stated that a person‟s criminal history
was very important to his assessment and recommendations because it factored
into the decision about placement and treatment. He explained that defendant‟s
history of “thievery” demonstrated he was “a chronic, habitual offender,” for
whom earlier attempts at intervention had failed. He testified that, as a juvenile,
defendant had been provided with various opportunities for rehabilitation after
juvenile petitions charging theft-related offenses had been sustained against him.
Cuevas explained that defendant‟s prior criminal history and prior placements
were relevant to his future placement because it “sort of, you know, curtails the
type of . . . trust we can . . . provide for him . . . within the facility.” The
prosecutor then led Cuevas through defendant‟s current and prior convictions and
juvenile adjudications in detail. This testimony addressed sustained juvenile
petitions for burglary when defendant was 15 years old and when he was 16 years
old, as well as details of his then-current offenses. Based on that history, Cuevas
concluded that defendant was a “chronic habitual offender.” In light of this,
Cuevas had recommended that defendant be placed in a “closed, locked setting” at
which he would “be supervised every minute of his life.”

            2. Discussion
       Defendant contends the trial court abused its discretion when it allowed the
prosecutor to cross-examine Cuevas about the details of defendant‟s prior theft-
related convictions and juvenile adjudications, because they did not involve the



                                            81
use or attempted use or threat of violence and were thus inadmissible as a factor in
aggravation under section 190.3, factor (b). He contends further that the testimony
was irrelevant because the details of defendant‟s criminal history were “not
important to [Cuevas‟s] clinical impressions and his long-range custodial plans.”18
       Regarding defendant‟s first argument, the evidence of his theft-related
criminal history was not presented by the prosecution pursuant to section 190.3,
factor (b) but was, instead, proper rebuttal to the defense case in mitigation.
“Rebuttal evidence is relevant and admissible if it tends to disprove a fact of
consequence on which the defendant has introduced evidence. . . . The trial court
has broad discretion to determine the admissibility of rebuttal evidence and, absent
palpable abuse, an appellate court may not disturb the trial court‟s exercise of that
discretion.” (People v. Valdez (2012) 55 Cal.4th 82, 169; see People v. Mitcham
(1992) 1 Cal.4th 1027, 1072-1073 [evidence of the defendant‟s juvenile
adjudications were admissible to rebut evidence of his good character and, as such,
was “not subject to the notice requirement of section 190.3 and need not relate to
any specific aggravating factor under section 190.3”].)
       We also reject defendant‟s contention that the evidence of his criminal
record was irrelevant because it was not an important part of Cuevas‟s assessment
and treatment plan for defendant. Cuevas himself repeatedly testified that
defendant‟s prior record was an important aspect of his assessment and




18     Additionally, he argues that defendant‟s juvenile adjudications were
inadmissible as prior convictions under Apprendi v. New Jersey (2000) 530 U.S.
466 and its progeny. His reply brief acknowledges this argument is foreclosed by
our decision in People v. Nguyen (2009) 46 Cal.4th 1007, but he urges us to
reconsider it. We decline to do so.




                                          82
recommendations, giving as an example how defendant‟s prior record of thievery
would have affected the degree of security and supervision he would require.
       More generally, the evidence was relevant to rebut the sympathetic portrait
defendant was attempting to paint of himself for the jury. The defense called
Cuevas to further its overall depiction of defendant as the victim of a grossly
abusive family who, as a result, suffered from severe emotional and psychological
problems that mitigated his current offense. The defense sought to do so by
selectively questioning Cuevas about his evaluation of defendant, focusing on his
chaotic family background and depressed mental state. The prosecution was
entitled to rebut this characterization that defendant was a victim by demonstrating
that Cuevas‟s assessment also included his view that defendant was a habitual
chronic offender who had failed in previous attempts at rehabilitation.19 Thus, the
trial court did not abuse its discretion in permitting the prosecution to question
Cuevas about defendant‟s prior criminal record in order “to present a more
balanced picture of the defendant‟s personality.” (People v. Valdez, supra, 55
Cal.4th at p. 170.)



19     Defendant quotes a sentence from In re Lucas (2004) 33 Cal.4th 682, in
which we said, “Evidence that a defendant suffered abuse in childhood generally
does not open the door to evidence of defendant‟s prior crimes or other
misconduct.” (Id. at p. 733.) In Lucas, we granted the defendant‟s petition for a
writ of habeas corpus based on his claim that his trial attorney was constitutionally
ineffective for failing to investigate or present mitigating evidence of abuse he
suffered as a child. The sentence defendant quotes was in connection with our
discussion regarding prejudice and our comment that the respondent had not
offered any theory under which evidence of the abuse defendant suffered as a
child would, in and of itself, have opened the door to rebuttal evidence. (Ibid.)
That observation has no bearing on the present case, which is distinguishable both
legally and factually.




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       D. Admission of Razor Blade Evidence
       Defendant contends the admission of evidence that he was in possession of
a razor blade discovered in his cell during the penalty phase trial was an abuse of
discretion and violated his federal and state constitutional rights to due process, a
fair trial, trial by jury, and reliable capital sentencing proceedings. (U.S. Const.,
5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, 17.) The
contention is meritless.
       In a search of defendant‟s cell during the penalty phrase trial, a razor blade
was discovered on a table. Defendant was not permitted to possess razor blades.
The prosecution sought to present evidence of this incident under section 190.3,
factor (b), which allows evidence of criminal activity which “[i]nvolved the use or
attempted use of force or violence or the express or implied threat to use force or
violence.” The prosecution argued that defendant‟s possession of the razor blade
violated section 4502, subdivision (a), which prohibits possession, custody or
control of a weapon, including “any dirk or dagger or sharp instrument” by a
person confined in any penal institution. Over the defense‟s objection, the trial
court admitted the evidence.
       Defendant contends the trial court abused its discretion because there was
no evidence he intended to use the razor blade to attack anyone and, therefore, his
possession did not constitute the use or attempted use of or express or implied
threat to use violence. We previously rejected this argument in People v. Wallace
(2008) 44 Cal.4th 1032, in which the defendant similarly argued that simple
possession of a razor blade, without evidence that he had threatened to use it, is
not admissible under section 190.3, factor (b). “As we have previously explained,
„mere possession of a potentially dangerous weapon in custody involves an
implied threat of violence . . . .‟ [Citation.] The circumstances of defendant‟s
possession of the contraband, particularly when viewed together with his overall


                                          84
conduct while in custody — which included five rules violations for fighting —
lead us to conclude that the trial court did not abuse its discretion in admitting the
evidence of defendant‟s razor possession under section 190.3, factor (b).”
(Wallace, at p. 1082.)
       As noted above, in this case, the prosecution introduced evidence that
defendant had, on numerous occasions, possessed prison-made slashing
instruments and had used them to attack fellow inmates. At least one of these
weapons had been fashioned out of a razor blade. The trial court clearly did not
act outside the bounds of reason in concluding defendant‟s possession of the razor
blade discovered in his cell during the penalty phase trial could constitute evidence
of a threat of violence. In these circumstances, the court acted well within its
discretion when it admitted the razor blade evidence under section 190.3,
factor (b).

       E. Admission of Criminal Activity Beyond the Statute of Limitations
       Defendant contends the admission of 18 prior criminal incidents under
section 190.3, factor (b) was barred by the statute of limitations. As he concedes,
however, we have repeatedly rejected this argument. “ „[N]either remoteness nor
the expiration of the statutory limitations period bars admission of a defendant‟s
prior unadjudicated criminal activity for purposes of section 190.3, factor (b).‟ ”
(People v. Famalaro (2011) 52 Cal.4th 1, 42, quoting People v. Medina (1995) 11
Cal.4th 694, 772.) Defendant‟s arguments do not persuade us that reconsideration
of these decisions is warranted.

       F. Claims of Instructional Error

              1. Instruction on Defenses to Criminal Activity and Defendant’s
                  Mental Health Evidence
       Defendant contends the trial court‟s failure to instruct the jury, on the
court‟s own motion, to consider certain defenses to certain unadjudicated criminal

                                          85
activity introduced by the prosecution under section 190.3, factor (b), after the
court granted the prosecution‟s request to instruct on the elements of those
offenses, violated his federal and state constitutional rights to due process, a fair
trial, trial by jury, and reliable capital sentencing proceedings. (U.S. Const., 5th,
6th, 8th & 14th Amends.; Cal. Const., art I, §§ 7, subd. (a), 15, 16, 17.)
Specifically, he contends the trial court should have instructed the jury that self-
defense against the use of excessive force was a defense to an incident on October
21, 1994, during which defendant was forcibly extracted from his cell after
refusing to return his food tray. Furthermore, he contends the trial court should
have instructed the jury to consider the impact of his mental health issues on all
factor (b) evidence. The claim is meritless.
       Over the defense‟s objection, the trial court agreed to instruct the jury on
the elements of the section 190.3, factor (b) offenses. The defense did not request
any further instruction on these offenses and none was given.
       Preliminarily, the People contend defendant has forfeited this claim because
he assertedly had a tactical reason for not requesting additional instruction — he
wanted to minimize the jury‟s focus on his criminal activity. “When defense
counsel makes a „ “conscious, deliberate tactical choice” ‟ to request [or object to]
an instruction, any error in the giving [or refusal to give] the instruction is invited
and cannot be raised on appeal.” (People v. Catlin (2001) 26 Cal.4th 81, 150.)
However, defendant‟s objection was only to the prosecutor‟s request to instruct the
jury on the elements of the offenses. This limited objection does not bar
defendant‟s present claim, which relates to the trial court‟s further duty, once it
agreed to give the elements instruction, to “instruct sua sponte on legally available
defenses.” (People v. Montiel (1993) 5 Cal.4th 877, 942.)
       In prior decisions, we have assumed without deciding that when the trial
court gives an instruction on the elements of section 190.3, factor (b) offenses,

                                           86
those instructions should include any applicable defenses. (People v. Montiel,
supra, 5 Cal.4th at p. 942; see, also, People v. Cain (1995) 10 Cal.4th 1, 72.)
Nonetheless, the court is under no obligation to provide such instruction unless
“such defenses are supported by substantial evidence.” (People v. Montiel, at
p. 942.) “Substantial evidence is evidence sufficient to „deserve consideration by
the jury,‟ that is, evidence that a reasonable jury could find persuasive.” (People
v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) Defendant fails to identify such
evidence. He does no more than repeat his version of the circumstances under
which correctional officers were forced to remove him from his cell after he
refused to return his food tray and refused to come out peaceably. Thus, no self-
defense instruction was warranted.
       With respect to his claim that the trial court should have instructed the jury
to consider evidence of his mental health problems as they bore on the section
190.3, factor (b) evidence, defendant fails to demonstrate how such evidence
would have comprised a legal defense to any of those offenses. Rather, he
contends that such evidence was a potentially mitigating factor and the jury should
have been so instructed. Such instruction was given in the form of an instruction
patterned on section 190.3, factor (k). The jury was told it could consider in
mitigation “any sympathetic or any aspect of the defendant‟s character or record
that the defendant offers as a basis for a sentence less than death, whether or not
related to the offense for which he is on trial.” Furthermore, in discussing the
factor (b) evidence, defense counsel specifically argued that the evidence of
defendant‟s mental health issues and the failure of correctional authorities to
respond to his request for treatment “remarkabl[y] diminished the weight of
[factor (b)] material.” Accordingly, the jury was instructed it could consider this
evidence, and defense counsel explicitly urged them to do so.



                                         87
       Defendant asserts, however, that the section 190.3, factor (k) instruction
was insufficient to direct the jury to the particular issue of the effect of his mental
illness as it related to the section 190.3, factor (b) evidence. That claim is forfeited
by his failure to seek clarification or amplification of the instruction. (People v.
Lang (1989) 49 Cal.3d 991, 1024 [“A party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying
language”].)

           2. CALJIC No. 8.87
       Defendant contends CALJIC No. 8.87, which addresses evidence related to
section 190.3, factor (b), is flawed because (1) it creates a mandatory presumption
of violence and (2) it fails to require that jurors unanimously agree that defendant
committed the factor (b) criminal activity.20 We have previously rejected these
challenges to the instruction. (People v. Butler, supra, 46 Cal.4th at pp. 871-872
[CALJIC No. 8.87 does not create a mandatory presumption]; People v. Zambrano
(2007) 41 Cal.4th 1082, 1181-1182 [unanimity not required].) Nothing in
defendant‟s argument persuades us to revisit these conclusions.

20      In pertinent part, the jury was instructed as follows: “Evidence has been
introduced for the purpose of showing that the defendant has committed the
following criminal acts or activities . . . all of which involved the express or
implied use of force or violence or the threat of force or violence. Before a juror
may consider any criminal activity as an aggravating circumstance in this case, a
juror must be satisfied beyond a reasonable doubt that the defendant . . . did in fact
commit the criminal activity. A juror may not consider any evidence of any other
criminal activity as an aggravating circumstance. [¶] It is not necessary for all
jurors to agree. If any juror is convinced beyond a reasonable doubt that the
criminal activity occurred, that juror may consider that activity as a fact in
aggravation. If not so convinced, that juror must not consider that evidence for
any purpose.”




                                          88
           3. Instruction Regarding Punishment of Accomplice
       Defendant contends the trial court erred by failing to instruct the jury to
consider as a mitigating circumstance the punishment meted out to his accomplice,
Gary Green. As defendant acknowledges, we have repeatedly rejected the claim
that a court should instruct the jury that it may consider lenient treatment of an
accomplice as a mitigating circumstance. “ „We have consistently held that
evidence of an accomplice‟s sentence is irrelevant at the penalty phase because “it
does not shed any light on the circumstances of the offense or the defendant‟s
character, background, history or mental condition.” ‟ ” (People v. Brown, supra,
31 Cal.4th at p. 562; accord, People v. Whalen (2013) 56 Cal.4th 1, 85.)
Similarly, we have rejected calls to reexamine our conclusion in light of Parker v.
Dugger (1991) 498 U.S. 308, which defendant also cites. (People v. Cain, supra,
10 Cal.4th at p. 63 [“Parker did not hold evidence of an accomplice‟s sentence
must be introduced in mitigation at the penalty phase, or that a comparison
between sentences given codefendants is required”].) We adhere to these
conclusions.

           4. Use of Restrictive Adjectives and Restrictive Timeframe in
               Instructions on Mitigating Factors
       Defendant contends the use of certain restrictive adjectives in CALJIC
No. 8.85 pertaining to mitigating factors, such as “extreme” and “substantial,”
impose an unconstitutional threshold requirement before the jury may consider
mitigating evidence. We have repeatedly rejected this argument (People v. Cage
(2015) 62 Cal.4th 256, 296), and do so again. We have also consistently rejected
defendant‟s related claim that language in section 190.3, factors (d) and (h)
allowing consideration of defendant‟s mental or emotional state or intoxication at
the time of the offense precludes the jury from considering such evidence when it




                                          89
is not related to the offense (People v. Combs (2004) 34 Cal.4th 821, 867-868),
and do so again.

            5. CALJIC No. 8.88
       Defendant makes familiar and oft-rejected challenges to CALJIC No. 8.88,
which advises jurors regarding the scope of their discretion to reject death and
return a verdict of life without the possibility of parole. We again conclude that
the instruction is “not unconstitutional for failing to inform the jury that: (a) death
must be the appropriate penalty, not just a warranted penalty [citation]; (b) [a
sentence of life without the possibility of parole] is required, if it finds that the
mitigating circumstances outweigh those in aggravation [citation] or that the
aggravating circumstances do not outweigh those in mitigation [citation]; (c) [a
sentence of life without the possibility of parole] may be imposed even if the
aggravating circumstances outweigh those in mitigation [citation]; (d) neither
party bears the burden of persuasion on the penalty determination [citation]. [¶]
[Moreover,] section 190.3 and the pattern instructions are not constitutionally
defective for failing to assign the state the burden of proving beyond a reasonable
doubt that an aggravating factor exists, that the aggravating factors outweigh the
mitigating factors, and that death is the appropriate penalty. . . . The recent
decisions of the United States Supreme Court interpreting the Sixth Amendment‟s
jury trial guarantee do not compel a different result.” (People v. Bramit (2009) 46
Cal.4th 1221, 1249-1250, fn. omitted.) Finally, the use of the phrase “ „ “so
substantial” ‟ ” as a standard of comparison for mitigating and aggravating factors
does not render the instruction unconstitutional. (People v. Dykes (2009) 46
Cal.4th 731, 814.)




                                           90
       G. Constitutional Challenges to Death Penalty Statute
       Defendant raises a number of challenges to the constitutionality of the
death penalty statute, which, as he acknowledges, we have previously and
consistently rejected. His arguments fail to persuade us to reconsider our prior
decisions and, therefore, we again reject the contentions that the statute is
unconstitutional because it (1) fails to require the jury to find the existence of
aggravating factors beyond a reasonable doubt (People v. Cage, supra, 62 Cal.4th
at p. 296); (2) does not require written findings of factors in aggravation (ibid.);
(3) does not require that the jury be instructed that mitigating factors can be
considered solely for mitigation (ibid.); (4) does not require intercase
proportionality review (People v. Charles (2015) 61 Cal.4th 308, 337); and (5)
provides certain procedural safeguards to noncapital defendants that are not
available to capital defendants (ibid.).

       H. Denial of Automatic Motion to Modify Death Verdict
       Defendant contends the trial court erred when it denied his automatic
motion to modify the death verdict (§ 190.4, subd. (e)) because it gave no weight
to the mitigating evidence of duress, and it erroneously found that evidence of his
mental health problems was not mitigating. He asserts the error violated his
federal and state constitutional rights to due process and a reliable penalty
determination, and the prohibition against arbitrary and capricious imposition of
the death penalty. (U.S. Const., 5th, 8th & 14th Amends.; Cal. Const., art I, §§ 7,
subd. (a), 15, 17.) Defendant failed to object to the trial court‟s ruling and his
claim is therefore forfeited. (People v. Carasi, supra, 44 Cal.4th at p. 1316.) It is
also meritless.
       “Every death verdict triggers an automatic application for modification of
the sentence. [Citation.] The trial court is obligated to review the evidence,
independently reweigh any aggravating and mitigating circumstances, and


                                           91
determine whether the weight of the evidence supports the verdict. [Citations.] In
ruling on the application, the trial court must set forth reasons on the record and
direct that they be entered in the clerk‟s minutes. [Citation.] On appeal, we
review the trial court‟s ruling independently, but it is not our role to redetermine
the penalty in the first instance.” (People v. Gamache, supra, 48 Cal.4th at p.
403.) “Where the record shows the trial court properly performed its duty under
section 190.4, subdivision (e), to conduct an independent reweighing of the
aggravating and mitigating evidence, the court‟s ruling will be upheld.” (People v.
Cunningham (2015) 61 Cal.4th 609, 669.)
       Here, the trial court‟s written statement of reasons for denying the motion
demonstrates it was aware of its obligation to independently consider all the
evidence. The court noted, however, that it was not the court‟s intention to “list
every item of evidence . . . , but rather to recite the principal factors, which most
powerfully inform and influence the decision at hand.” This was proper; the court
was not required to “recount „every detail‟ supporting its determination.” (People
v. Lewis and Oliver (2006) 39 Cal.4th 970, 1064.)
       The trial court considered both aggravating and mitigating evidence. With
respect to the factors in aggravation, the court found that the murder was willful,
deliberate, and premeditated, with express malice aforethought, and was gang
related. The court also listed, in some detail, defendant‟s long and violent history
of other criminal activity while incarcerated. The court found there was no
evidence to show defendant committed the murder under the influence of extreme
mental or emotional disturbance or that he acted under extreme duress or the
substantial domination of another. With respect to factors that might extenuate the
gravity of the crime (§ 190.3, factor (k)), the court noted defendant‟s traumatic
childhood, physical, mental and sexual abuse, his diagnosis of bipolar disorder,
and the failure of prison authorities to consistently provide him with medication.

                                          92
Nonetheless, the court concluded: “While it is easy to feel great sympathy for the
defendant as a child, and it appears clear that the defendant should have received
better mental health supervision in prison, it also appears that these factors had
little to do with his decision to kill.”
       Although defendant frames his claim as a failure of the trial court to
consider his mitigating evidence, his claim, in essence, is that the trial court failed
to give sufficient weight to evidence of duress and his mental health issues. His
contention does not reflect a valid appellate challenge to the trial court‟s decision.
(See People v. Abilez (2007) 41 Cal.4th 472, 530 [The fact that the trial court “did
not find defendant‟s proffered mitigating evidence as persuasive as he would have
liked does not undermine” the conclusion that the court properly conducted an
independent reweighing of the aggravating and mitigating evidence].)
Accordingly, even were the claim not forfeited by defendant‟s failure to object, we
would affirm the trial court‟s ruling.

       I. International Law
       Contrary to defendant‟s assertion, “California‟s death penalty law does not
violate international law and norms or evolving standards of decency.” (People v.
Cage, supra, 62 Cal.4th at p. 297.)

       J. Disproportionality of the Death Sentence
       Defendant contends his death sentence is unconstitutionally
disproportionate to the offense and the offender. “[W]hen a defendant requests
intracase proportionality review, . . . we review the particular facts of the case to
determine whether the death sentence is so disproportionate to the defendant‟s
personal culpability as to violate the California Constitution‟s prohibition against
cruel or unusual punishment.” (People v. Wallace, supra, 44 Cal.4th at p. 1099.)




                                           93
       “ „To determine whether a sentence is cruel or unusual as applied to a
particular defendant, a reviewing court must examine the circumstances of the
offense, including its motive, the extent of the defendant‟s involvement in the
crime, the manner in which the crime was committed, and the consequences of the
defendant‟s acts. The court must also consider the personal characteristics of the
defendant, including age, prior criminality, and mental capabilities. [Citation.]‟
[Citation.] „If the court concludes that the penalty imposed is “grossly
disproportionate to the defendant‟s individual culpability” [citation], or, stated
another way, that the punishment “ „ “shocks the conscience and offends
fundamental notions of human dignity” ‟ ” [citation], the court must invalidate the
sentence as unconstitutional.‟ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1287.)
       Defendant‟s disproportionality argument emphasizes evidence that (1) he
was manipulated and ordered to kill Addis, (2) prison authorities failed to provide
consistent treatment for his bipolar disorder, and (3) he suffered a traumatic
childhood. The only evidence he cites to support his claim of manipulation is
expert testimony that he was easily manipulated; there is no evidence he was
manipulated in this case. With respect to his claim that he was ordered to kill
Addis, the fact that another gang member may have been the shot-caller does not
mitigate defendant‟s culpability in this case. After defendant savagely attacked
Addis, defendant lay giggling and laughing on the ground. In a subsequent letter,
defendant wrote that the killing “kinda put me at ease, had to earn it,” and that
committing the murder would elevate his status with higher ranking gang
members. Based on this evidence, it appears he was a hit man for the gang rather
than a pawn. In support of his theory of manipulation and duress, defendant
asserts that prison officials knew Addis would be assaulted if he came into the
yard, and he observes that he was not the person who demanded that Addis be



                                          94
brought out, but he does not explain how these facts would diminish his role in the
murder.
       With respect to treatment for defendant‟s bipolar disorder, although it is
true there was evidence prison officials did not consistently provide defendant
with certain psychotropic medications, it is also true, as the People point out, that
there was evidence both that defendant denied he had any mental health issues and
sometimes refused such medications. Thus, defendant‟s assertion that his criminal
activity in prison merely “resulted from the denial of treatment for long-standing
mental health issues” is not persuasive.
       Finally, with respect to defendant‟s traumatic childhood, although his
childhood was characterized by abuse and neglect, there was also considerable
family support offered to him by his grandparents.
       The evidence reflects that defendant, a member of a prison gang, with a
long history of violence while incarcerated, committed a vicious, unwarranted,
surprise attack on an unarmed fellow inmate, causing his victim to bleed to death.
Considered together with defendant‟s personal circumstances, we cannot conclude
that the imposition of the death penalty shocks the conscience or offends
fundamental notions of human dignity.
       Defendant also invokes sections 1181, subdivision 7, and 1260 as authority
for this court to reduce his sentence from death to life imprisonment without the
possibility of parole.21 “But under those sections, „we lack the power to overturn

21     Section 1181, subdivision 7, states that a court may grant a new trial motion
“[w]hen the verdict or finding is contrary to law or evidence, but in any case
wherein authority is vested by statute in the trial court or jury to recommend or
determine as a part of its verdict or finding the punishment to be imposed, the
court may modify such verdict or finding by imposing the lesser punishment
without granting or ordering a new trial, and this power shall extend to any court
to which the case may be appealed.”
                                                           (footnote continued on next page)


                                           95
a judgment of death simply because we disagree with the jury‟s penalty
determination‟ [citation], and we may only reverse the judgment if we find
„prejudicial error or legal insufficiency of evidence [citation].‟ ” (People v.
Leonard (2007) 40 Cal.4th 1370, 1427.) We find neither of those circumstances.

        K. Asserted Cumulative Error
        Defendant contends the cumulative weight of asserted errors occurring at
his trial requires reversal. We have not affirmatively concluded that any errors
occurred, and in those instances in which we have assumed an error, have
concluded any error was harmless. Even when considered cumulatively, the
assumed errors could not have deprived defendant of a fundamentally fair trial.
                          IV. NONCAPITAL SENTENCING CLAIM
        Defendant contends the trial court erroneously imposed a one-year sentence
enhancement for use of a deadly weapon (former § 12022, subd. (b)(1)
(hereinafter section 12022(b)(1)) on count 3, the assault on Joseph Matthews
(§ 4500) because use of a deadly weapon was an element of defendant‟s offense.
We agree.22



(footnote continued from previous page)

       Section 1260 provides that “[t]he court may reverse, affirm, or modify a
judgment or order appealed from, or reduce the degree of the offense or attempted
offense or the punishment imposed, and may set aside, affirm, or modify any or all
of the proceedings subsequent to, or dependent upon, such judgment or order, and
may, if proper, order a new trial and may, if proper, remand the cause to the trial
court for such further proceedings as may be just under the circumstances.”
22     Defendant did not object to the imposition of the enhancement at trial, but
argues that the trial court‟s action constituted an unauthorized sentence that is
subject to correction at any time without objection. (See People v. Cunningham
(2001) 25 Cal.4th 926, 1044.) On that basis, we review the claim.



                                          96
       At the time of trial, section 12022(b)(1) stated: “Any person who
personally uses a deadly or dangerous weapon in the commission or attempted
commission of a felony shall, upon conviction of that felony or attempted felony,
in addition and consecutive to the punishment prescribed for the felony or
attempted felony of which he or she has been convicted, be punished by an
additional term of one year, unless use of a deadly or dangerous weapon is an
element of the offense of which he or she was convicted.” (Italics added.) As a
general rule, “[t]he phrase „element of the offense‟ signifies an essential
component of the legal definition of the crime, considered in the abstract.”
(People v. Hansen (1994) 9 Cal.4th 300, 317, italics omitted, overruled on another
ground in People v. Chun (2009) 45 Cal.4th 1172, 1199.) In Hansen, the
defendant was convicted of second degree felony murder, based on the underlying
felony of discharging a firearm into an inhabited dwelling. We concluded the
firearm use enhancement could be imposed on the defendant‟s conviction, because
the crime of second degree murder, “considered in the abstract, does not include
use of a firearm as an element. Second degree murder may be committed in a
myriad of ways, some that involve use of a firearm, and others, such as stabbing,
poisoning or strangling, that do not involve use of this type of weapon. Under
[former] section 12022.5, subdivision (a), the enhancement applies unless „use of a
firearm is an element of the offense,‟ and not merely the means by which the
offense was committed or the factual predicate of a theory upon which the
conviction was based.” (Hansen, at p. 317.)
       Defendant acknowledges Hansen, but contends the facts of this case come
within the reasoning of People v. McGee (1993) 15 Cal.App.4th 107 (McGee).
McGee stabbed his victim with a knife, and was convicted under former section
245, subdivision (a)(1) (section 245(a)(1)), which applied to “ „an assault . . . [1]
with a deadly weapon or instrument other than a firearm or [2] by any means of

                                          97
force likely to produce great bodily injury . . . .‟ ” (McGee, at p. 112, fn. 2) The
trial court imposed an enhancement under section 12022(b)(1) for use of a deadly
weapon, which the Court of Appeal struck.
       The appellate court in McGee acknowledged that the phrase “ „element of
the offense‟ ” in the enhancement statute means “ „an essential component of the
legal definition of the crime considered in the abstract.‟ ” (McGee, supra, 15
Cal.App.4th at p. 114, italics omitted.) It also observed that section 245(a)(1)
specified two forms of prohibited conduct, assault with a deadly weapon other
than a firearm and assault by means of force likely to produce great injury.
Therefore, section 245(a)(1) could be violated without using a deadly weapon.
(Ibid.) The court further observed, however, that the statute “ „defines only one
offense, to wit “assault upon the person of another with a deadly weapon or
instrument [other than a firearm] or by any means of force likely to produce great
bodily injury . . . .” The offense of assault by means of force likely to produce
great bodily injury is not an offense separate from . . . the offense of assault with a
deadly weapon.‟ [Citation.] Consequently, in determining whether use of a
deadly weapon other than a firearm is an element of a section 245, subdivision
(a)(1) conviction, the question is not simply whether, in the abstract, the section
can be violated without using such a weapon. Rather, the conduct of the accused,
i.e., the means by which he or she violated the statute, must be considered.”
(McGee, supra, 15 Cal.App.4th at pp. 114-115.)
       Applying these observations to the facts before it, the court in McGee
concluded: “Here, defendant‟s use of a deadly weapon other than a firearm was
the sole means by which he violated section 245, subdivision (a)(1). The assault
by means of force likely to produce great bodily injury was defendant‟s stabbing
of the victim with a knife. Hence, his use of the weapon was an element of the
offense, within the meaning of section 12022, subdivision (b), even though the

                                          98
crime was pleaded as an assault by means of force likely to produce great bodily
injury rather than as an assault with a deadly weapon other than a firearm.”
(McGee, supra, 15 Cal.App.4th at p. 115.) The court also noted that the
prosecutor had pleaded the offense as an assault by means of force likely to
produce great bodily injury rather than an assault with a deadly weapon to “evade
the statute‟s exception and to increase the punishment imposed on defendant.”
(Id. at p. 116.) If prosecutors were allowed to “divide section 245, subdivision
(a)(1) into two separate offenses regardless of the defendant‟s conduct, . . .
similarly situated defendants who assaulted their victims with deadly weapons
other than firearms and were charged with violating section 245, subdivision (a)(1)
could receive disparate punishment depending solely upon the language used in
the pleadings. . . . This is an absurd and unjust result which is inconsistent with
the legislative intent in enacting sections 245, subdivision (a)(1) and 12022,
subdivision (b).” (Id. at p. 117.)
       Section 4500 is similar to the version of section 245 considered in McGee,
supra, 5 Cal.App.4th 107, in that section 4500 refers to a person “who, with
malice aforethought, commits an assault upon the person of another with a deadly
weapon or instrument, or by any means of force likely to produce great bodily
injury.” (Italics added.) Thus, as was true of former section 245, subdivision
(a)(1), section 4500 defines a single offense that can be committed in one of two
ways, by use of a deadly weapon or instrument or by any means of force likely to
produce great bodily injury. Whether in a particular case, the use of a deadly
weapon or instrument was an element of the offense cannot be answered in the
abstract; “the conduct of the accused, i.e., the means by which he or she violated
the statute, must be considered.” (McGee, supra, 15 Cal.App.4th at p. 115.)
       In this case, not only did the evidence show defendant used a razor to cut a
gash in Matthews‟s back, but with respect to count 3, the jury was specifically

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instructed: “In order to prove this crime, each of the following elements must be
proved: (1) A person was assaulted; [¶] (2) The assault was committed with a
deadly weapon or instrument . . . .” Thus, in the particular circumstances of this
case, the use of a deadly or dangerous weapon was an element of defendant‟s
offense under section 4500, barring imposition of the use enhancement set forth in
section 12022 (b)(1).
       The People‟s attempts to distinguish McGee are unpersuasive. The People
contend that McGee contradicts the public policy of punishing more severely those
with a greater degree of culpability. The case they cite for this proposition, People
v. Murray (1994) 23 Cal.App.4th 1783, involved consecutive sentencing for mixed
felony and misdemeanor convictions and not the enhancement at issue here; its
public policy observation arises in that specific, and distinguishable, context. (Id.
at pp. 1787-1788.) Moreover, the public policy considerations that underlie
section 12022(b) were discussed at length in McGee, which examined the
Legislature‟s intent in enacting the enhancement. McGee concluded that where
“ „the Legislature has fixed the punishment for an assault where a deadly weapon
is used, . . . it is not to be supposed that for the same offense without any
additional factor existing the added punishment should be imposed.‟ ” (McGee,
supra, 15 Cal.App.4th at p. 116, quoting In re Shull (1944) 23 Cal.2d 745, 751.)
This observation applies with equal force to section 4500.
       The People also argue that McGee has been limited to the specific facts of
that case, citing a footnote in People v. Ross (1994) 28 Cal.App.4th 1151. In Ross,
the trial court stayed imposition of a firearm use enhancement (former § 12022.5,
subd. (b)), where defendant had been convicted of voluntary manslaughter by
shooting the victim. The trial court reasoned that the use of the firearm was
identical to the “ „crime itself‟ ” and thus section 654 precluded defendant from
being punished twice for the same act. (Ross, at p. 1155.) The Court of Appeal

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reversed because firearm use was not an element of voluntary manslaughter. In
this connection, it distinguished McGee, noting that the statute at issue there,
assault with a deadly weapon (§ 245(a)(1)), “had two alternative forms, as to one
of which weapons use was an element,” and for that reason “has no application to
this case.” (Ross, at p. 1156, fn. 7.) As noted above, section 4500 is analogous to
section 245(a)(1), and, therefore, McGee’s reasoning is equally applicable.
       Accordingly, we strike the enhancement for use of a dangerous or deadly
weapon from count 3.
                                  V. CONCLUSION
       The enhancement for use of a dangerous or deadly weapon is stricken from
count 3, and the judgment is otherwise affirmed.


                                                        CANTIL-SAKAUYE, C. J.


WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Landry
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S100735
Date Filed: December 12, 2016
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Paul M. Bryant, Jr.

__________________________________________________________________________________

Counsel:

Donald R. Tickle, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne Denault, Karl T. Terp and
Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Donald R. Tickle
140 M Street NE, No. 1240
Washington, DC 20002-3370
(202) 695-9405

Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9211
