Filed 3/3/14




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S086269
           v.                        )
                                     )                        Riverside County
JONATHAN KEITH JACKSON,              )                     Super. Ct. No. CR-69388
                                     )
           Defendant and Appellant.  )
____________________________________)


        A jury convicted defendant Jonathan Keith Jackson of the first degree
murder of Monique Cleveland (Pen. Code, § 187),1 the willful, deliberate, and
premeditated attempted murder of Robert Cleveland (§§ 664, 187), and being a
felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd.
(a)). The jury found true the allegations that defendant inflicted great bodily
injury upon the attempted murder victim (§§ 12022.7, subd. (a), 1192.7, subd.
(c)(8)), that he personally used a handgun in the commission of the murder and
attempted murder (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), and that a principal
was armed with a handgun in the commission of the murder (§ 12022, subd.
(a)(1)). The jury also found true the special circumstance that the murder was
committed while defendant was engaged in the commission or attempted
commission of a robbery. (§ 211; former § 190.2, subd. (a)(17)(i), now § 190.2,

1       All further statutory references are to this code unless otherwise indicated.




                                           1
subd. (a)(17)(A).)2 The jury, however, was unable to reach a penalty verdict as to
the murder conviction, and the court declared a mistrial. At the penalty retrial, the
jury returned a verdict of death on the murder conviction. Appeal to this court is
automatic. (§ 1239, subd. (b).)
       As we explain below, we find no prejudicial error at the guilt or penalty
phase of defendant’s trial. We therefore affirm the judgment in its entirety.
                                       I. FACTS

       A. The Guilt Phase
       Robert Cleveland (Robert) and his wife, Monique Cleveland (Monique),
were shot during an attempted robbery at their residence. Monique was shot in the
face and died. Robert survived gunshot wounds to his face, upper back, and
abdomen. The evidence included Robert’s account of the crimes and testimony
from two witnesses who heard defendant, at separate times, confess to the crimes.

           1. The Prosecution Case
       In June 1996, Robert and Monique lived in a remote area of Mead Valley.
Robert was a drug dealer who regularly sold to members of the Mead Valley
Gangster Crips, including defendant, whom Robert knew by the name “Valley J.”
Robert conducted many drug transactions in his home and often hid drugs in a
light fixture in a recessed part of the kitchen ceiling.



2      Additionally, it was determined at a bench trial that defendant suffered a
felony conviction of robbery on October 19, 1992 (§§ 211, 667, subd. (a)), that
defendant served a prison term for that offense and failed to remain free of prison
custody and committed another offense resulting in a felony conviction within five
years subsequent to the conclusion of that prison term (§ 667.5, subd. (b)), and that
defendant’s October 19, 1992 robbery conviction was a serious and violent felony
(§§ 667, subds. (c), (e), 1170.12, subd. (c)).




                                           2
       One night in June 1996, members of the Blanton family, who lived nearby,
heard multiple gunshots. Shortly thereafter, they received a call from Robert
asking for help. Robert had also called 911 to report the shootings.
       Michael Blanton and his two daughters rushed to the Cleveland home,
where they found Robert slumped on the back porch, bleeding from gunshot
wounds. Robert could barely speak but said he had been shot by Valley J.
Monique was found in the hallway; she had been shot in the face and was already
dead. Michael Blanton noticed that the plastic cover from the light fixture in the
kitchen ceiling was on the ground.
       When police officers arrived at the scene, Robert was struggling to remain
conscious. He told the responding officers that Valley J. and two or three other
individuals had tried to rob him, and that Valley J. had shot him. Inside the house,
the police found “Vally J” written in blood on the kitchen floor. In the bedroom,
the police located a phone book listing a number for “Valley J.”; that number
corresponded to the house where defendant’s girlfriend lived. The police also
discovered a package of rock cocaine in the light fixture in the kitchen. A total of
$507 was found in two different pairs of pants belonging to Robert.
       Robert underwent multiple surgeries to repair the gunshot injuries to his
face, upper back, and abdomen. While recuperating in the hospital, Robert
identified a photograph of defendant as Valley J.
       During a search of defendant’s grandparents’ house, the police recovered a
green folder with the written notation, “Mista Valley Jay, MVGC Crips.” The
folder contained paperwork bearing both defendant’s real name and the moniker
“Valley Jay.” Defendant was later taken into custody in Los Angeles for drinking
in public; he gave the arresting officer a couple of false names.
       Robert was one of the three main witnesses in the guilt phase, and he
testified as follows. On the night of the shooting, defendant came to Robert’s

                                          3
house in a minivan containing at least three other individuals. Defendant got out
and knocked on the door. As Robert picked up his .45-caliber handgun and went
to answer the door, he heard Monique go into the bathroom down the hall. Robert
let defendant in and locked the door behind him. Defendant owed Robert $150
from a previous drug transaction and wanted to get additional drugs. Robert told
defendant he did not have any drugs for him that night and said they could discuss
the matter again the next morning. During the course of this conversation, Robert
set his gun down on the kitchen counter.
       As defendant walked toward the door to leave, he suddenly pulled out a gun
and shot Robert in the face from one or two feet away. Robert fell to the floor and
looked up to see defendant struggling with his gun, which apparently had jammed.
As Robert started to pull himself up from the floor, defendant opened the door.
One of defendant’s companions then entered and shot Robert in the side while
saying, “Where’s the money? Where’s the drugs?” and, “Let’s get the bitch too.”
At least one other person also entered the house. When the men asked where the
drugs were hidden, Robert pointed to the light in the recessed kitchen ceiling and
then heard the light cover hit the ground. Robert began losing consciousness and
was only vaguely aware of hearing additional gunshots. He did not recall being
shot a third time. After the men left, Robert regained consciousness. Thinking he
was dying, Robert wrote defendant’s name in blood on the kitchen floor and then
somehow managed to call for help. Although drugs and large sums of cash had
been in the house, it appeared nothing was taken.
       The second main witness was Kevin Jackson (Jackson), who was unrelated
to defendant. Jackson testified that a day or two after the shooting, he was
smoking marijuana with defendant and “Alex” and asked whether they had heard
that Robert and Monique had been shot and killed. Defendant replied, “Yeah. So
what?” A short time later, defendant told Jackson, “Don’t trip, but I did that.”

                                           4
      Defendant then described to Jackson a version of the events that largely
tracked Robert’s testimony. Defendant said he had gone to purchase drugs from
Robert, but there had been a dispute about the money defendant owed Robert.
Defendant felt that Robert had “disrespect[ed]” him, and defendant decided “to
take what he came for instead of paying for it.” Defendant left the house and went
to the car where his friends were waiting. He told them he was going to “jack”
Robert and “take everything [he] had.” Defendant returned to the house, and
Robert answered the door holding a gun. When Robert put the gun on the counter,
defendant pulled out his own gun. Robert was substantially bigger than defendant,
and he jumped at defendant and tried to take defendant’s gun. Defendant had
recently been hospitalized following a motorcycle accident and “couldn’t take a
chance on [Robert] grabbing him,” so defendant stepped back and shot Robert.
Defendant then let in his “homies,” and one of them told him to finish what he
started. Defendant found Monique in another part of the house. While she was
down on the floor, he grabbed her by the hair and asked her where the money was.
Monique replied, “What money?” Defendant then “blew her brains out,” using a
gun he had borrowed from one of his cohorts. During their conversation,
defendant opened a nightstand drawer and showed Jackson the gun he used to
shoot Robert.
      The third main witness was Kevin Jackson’s younger brother, Donald
Profit, who was 14 years old at the time of the crimes. Like defendant, Profit was
a member of the Mead Valley Gangster Crips. Profit testified he had been
smoking marijuana with defendant one or two days after the crimes, when
defendant told Profit he “messed up” and confessed to shooting Robert and
Monique. Defendant said he shot Robert in the head because he “had to get paid”
and shot Monique because he “didn’t want no witnesses.” Defendant and his
cohorts then searched the house for drugs. Profit claimed defendant had told him

                                         5
he had taken eight ounces of “dope” from Robert. Profit later stated he had seen
defendant with this quantity of drugs some two weeks before the shooting.
           Two expert witnesses testified regarding the likely manner in which
Monique had been killed. Dr. Joseph Choi, a forensic pathologist who performed
the autopsy, testified the gun had likely been between two and four inches from
her face when she was shot. In his opinion, Monique’s injuries indicated she had
been lying facedown on the floor while the shooter stood over her, lifted her head
by the hair, and shot her in the left cheek. Elissa Mayo, a senior criminalist with
the California Department of Justice, analyzed the blood spatter at the crime scene.
Based on that analysis, Mayo estimated that Monique’s head was no higher than
two feet above the floor when she was shot.

               2. The Defense Case
           The defense rested without introducing any evidence.
           B. The Penalty Phase
           After convicting defendant of the charged crimes, the jury was unable to
reach a penalty verdict. The following evidence was presented at the penalty
retrial.
           1. The Prosecution Case
           The prosecution introduced evidence of the circumstances of the crime. As
he did in the guilt phase, Kevin Jackson recounted the story defendant had told
him shortly after the shooting. Testimonial evidence and an autopsy photograph
established that Monique was one month pregnant when she was murdered.
           Evidence concerning the circumstances of defendant’s prior convictions
also was presented. Joseph Canada testified that in July 1991, he had pulled his
car off to the side of the road to eat his lunch and then dozed off. When Canada
awoke, he saw defendant, who appeared to be 16 years old, pointing a shotgun



                                            6
directly at Canada’s face from two to three feet away. Three other teenage males
were pointing shotguns at Canada from a Jeep Cherokee parked approximately 10
to 15 feet away. Defendant demanded Canada’s wallet and keys and told him to
lie facedown in the dirt. Canada thought he was going to die, but the teens drove
off, taking Canada’s car along with the Jeep. Once they had gone, Canada rushed
to a nearby house and called 911. Defendant and his accomplices were soon
spotted and led the police on a chase. They eventually surrendered after a two-
hour standoff. The incident continued to affect Canada years afterward.
       In July 1992, defendant and his cousin, Derrick Palmer, committed an
armed robbery of a drug store. While Palmer disarmed the store’s owner and took
cash out of the register, defendant approached two store employees. One of these
employees, Kenny Johnson, testified that defendant pointed a loaded gun at his
face. Defendant then put his knee in Johnson’s back and jammed the gun into his
neck so hard that it caused a blood clot. Defendant asked where the store cameras
were, and Johnson replied there were no cameras. Defendant told Johnson:
“When I count to three, if you don’t tell me, you’re dead.” Defendant counted to
two, then ran away. Both Palmer and defendant were arrested after their mothers
turned them in to the police.
       In September 1994, two police officers stopped a car in which defendant
was riding in the front passenger seat. When defendant exited the car, the officers
discovered a loaded handgun on his seat. Defendant was arrested for being a felon
in possession of a loaded firearm.
       The prosecution also introduced evidence of the following altercations
involving defendant while he was in jail or prison. In June 1995, James Ghan was
a correctional officer at Mule Creek State Prison (Mule Creek), where there was
tension between inmates in the Crips gang and inmates in the 415 gang. Ghan
witnessed a group of six to eight 415 inmates rush across the prison yard to attack

                                         7
two or three Crips inmates. Other Crips ran to join the fray. Eventually as many
as 18 people were involved in the brawl, which ended shortly after Ghan shot a
415 inmate who was kicking a Crips inmate in the head. Defendant was later
identified as one of the Crips who participated in the brawl, although his role in
the fight was unclear.
       Correctional Sergeant Vern Nichols testified that in August 1995, defendant
and two other Mule Creek inmates refused an officer’s order to “get down” after a
fight had broken out between two inmates elsewhere in the prison. One of the
three inmates told the officer, “Fuck you. We don’t have to get down,” but
Nichols was not sure whether it had been defendant.
       In November 1995, Correctional Officer Floyd Haynes had seen defendant
and another Mule Creek inmate fighting in the basketball court area of the prison
yard. Haynes yelled at them to stop fighting and get down on the ground, which
they did. Haynes was not sure what had prompted the fight.
       William Rose, a correctional deputy with the Riverside County Sheriff’s
Department, testified about an incident that occurred when defendant was being
held in the Southwest Detention Center. On one occasion in September 1996,
defendant had refused an order to respond to the guards who were conducting a
head count. When defendant subsequently stepped out of his cell and was
handcuffed, he used profanity and challenged the guards to a fight.
       In June 1997, Correctional Officer Jerry Baker broke up an altercation
between defendant and inmate Robert Mayo in defendant’s cell at the Robert
Presley Detention Center. Mayo claimed that he had gone into defendant’s cell
after the two argued while playing basketball, and that defendant had “sucker-
punched” him in the back of the head.




                                          8
       With respect to victim impact testimony, Monique Cleveland’s cousin,
Jeannette Burns, described Monique’s life and the impact of her death on their
family.

           2. The Defense Case
       Four family members appeared on defendant’s behalf. Defendant’s
maternal grandparents each testified that defendant’s father had little or no role in
raising his son. Defendant’s grandfather also claimed that defendant, after getting
out of prison, injured his head in a motorcycle accident and did not seem to be the
same person afterward.
       Defendant’s older brother, Antione Jackson (Antione), described in detail
the circumstances of defendant’s upbringing. When Antione was five and
defendant was four, their mother had moved in with a man named Alonzo.
Antione described the year during which they lived with Alonzo as “torture.”
Antione and defendant saw Alonzo beat their mother many times. Defendant tried
to defend his mother, but Alonzo would throw him across the room. Antione also
recalled numerous times when he, defendant, and their mother were forced to
accompany Alonzo on trips to steal cars. A short time after their mother moved
them out of Alonzo’s house, Alonzo came to their grandmother’s home with his
“flesh burning,” like he was “melting.” Alonzo eventually died from his burns.
       After Alonzo was out of the picture, Antione and defendant were exposed
to a great deal of violence. Their mother became abusive. She also moved them
back and forth between neighborhoods affiliated with either the Crips or the
Bloods, and children associated with the gangs often attacked them or challenged
them to fights. Antione recounted his own early involvement in gangs and crimes,
his extrication from his gang affiliations, and his later service in the army.




                                           9
       Defendant’s mother, Paula Rice, confirmed and expanded on much of the
testimony by her parents and Antione. Defendant’s biological father had become
a drug addict soon after defendant’s birth and had never been a part of his life.
Rice spoke of the daily physical abuse she endured from Alonzo, which was
regularly witnessed by, and sometimes involved, defendant. She also described
the incredible lengths to which Alonzo would go to keep her under his control, and
said he raped her in front of defendant on multiple occasions. Rice was able to
move her family out of Alonzo’s house only after she responded to one of his
regular beatings by stabbing him with a pair of scissors. Their relationship ended
a few months later when he died from his burn injuries.
       Subsequently, Rice regularly moved the family between gang-affiliated
neighborhoods, which often resulted in her two sons being attacked. Rice also
described her involvement in another abusive relationship when defendant was
approximately 13 years old, and defendant’s attempts to physically defend her on
multiple occasions.
                                  II. DISCUSSION

       A. Use of Stun Belt at Trial
       Defendant contends the trial court’s orders requiring him to wear a
REACT3 stun belt during his trial were an abuse of discretion and violated his
constitutional rights to due process, effective assistance of counsel, and a reliable
penalty phase trial. These alleged errors and constitutional violations, he claims,
require reversal of his convictions and death judgment.




3     “REACT” stands for “Remote Electronically Activated Control
Technology.” (People v. Mar (2002) 28 Cal.4th 1201, 1214 (Mar).)




                                          10
            1. Governing Legal Principles
       A trial court “ ‘has broad power to maintain courtroom security and orderly
proceedings.’ [Citation.] On appeal, its decisions on these matters are reviewed
for abuse of discretion.” (People v. Virgil (2011) 51 Cal.4th 1210, 1270 (Virgil).)
In People v. Duran (1976) 16 Cal.3d 282 (Duran), a case involving visible
shackling, we held that “a defendant cannot be subjected to physical restraints of
any kind in the courtroom while in the jury’s presence, unless there is a showing
of a manifest need for such restraints.” (Id. at pp. 290-291, italics added.) Federal
law is in accord. (See Deck v. Missouri (2005) 544 U.S. 622, 624 [federal
Constitution “forbids the use of visible shackles . . . unless that use is ‘justified by
an essential state interest’ . . . specific to the defendant on trial”].)
       In Mar, supra, 28 Cal.4th 1201, we extended Duran’s “manifest need”
standard to use of visible and nonvisible electronic stun belts. (Mar, at pp. 1218-
1220; see Virgil, supra, 51 Cal.4th at p. 1270.) In deciding whether use of a stun
belt is justified, “ ‘the trial court may “take into account the factors that courts
have traditionally relied on in gauging potential security problems and the risk of
escape at trial.” [Citation.] These factors include evidence establishing that a
defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or
otherwise engage in nonconforming behavior.’ [Citation.] Although the court
need not hold a formal hearing before imposing restraints, ‘the record must show
the court based its determination on facts, not rumor and innuendo.’ [Citation.]”
(Virgil, at pp. 1270-1271.)
       Even though Mar was the first California opinion to hold Duran’s manifest
need standard applicable to stun belts, we have applied the standard to cases tried
before Mar was decided. (E.g., Virgil, supra, 51 Cal.4th at pp. 1269-1271; People
v. Lomax (2010) 49 Cal.4th 530, 558-562; People v. Gamache (2010) 48 Cal.4th
347, 366-370; Mar, supra, 28 Cal.4th at pp. 1222-1223.) However, in cases where


                                            11
the trial predated Mar, we have not faulted the courts for failing to consider the
potential physical harm and psychological impact of stun belts as part of the
manifest need determination. (Virgil, supra, 51 Cal.4th at p. 1271 [observing Mar
discussed these points to provide guidance in future trials]; Lomax, at p. 562;
Gamache, at p. 367, fn. 7; Mar, at pp. 1225-1230.)
       As we have explained, the unjustified use of a stun belt may adversely
affect the fairness of a trial or the reliability of a judgment in various ways. Like
shackles that are visible to the jury, visible stun belts “may erode the presumption
of innocence because they suggest to the jury that the defendant is a dangerous
person who must be separated from the rest of the community.” (People v.
Hernandez (2011) 51 Cal.4th 733, 742; see Duran, supra, 16 Cal.3d at p. 290
[visible shackling will likely lead jurors to infer the defendant is a violent person].)
Moreover, as in cases of forced shackling, the forced wearing of a stun belt may
discourage the defendant from taking the stand, or may impair the defendant’s
credibility if he or she decides to testify. (Mar, supra, 28 Cal.4th at pp. 1224-
1225; Duran, at p. 296.) Additionally, “requiring an unwilling defendant to wear
a stun belt during trial may have significant psychological consequences that may
impair a defendant’s capacity to concentrate on the events of the trial, interfere
with the defendant’s ability to assist his or her counsel, and adversely affect his or
her demeanor in the presence of the jury.” (Mar, at p. 1205.)4
       In Duran, supra, 16 Cal.3d 282, and Mar, supra, 28 Cal.4th 1201, the
respective trial courts failed to require a showing of manifest need before ordering

4      Hence, while courts in trials predating Mar, supra, 28 Cal.4th 1201, were
under no obligation to consider the potential psychological consequences before
issuing a stun belt order (id. at p. 1225, fn. 7), our prejudice analysis requires that
we review the record for evidence that the unjustified use of a stun belt resulted in
mental anxiety or distress that impaired the defendant’s right to a fair trial.




                                          12
the defendants to wear restraints while testifying. In Duran, we found it
significant that, due to the erroneous order, the defendant was forced to wear
visible wrist and ankle restraints while exercising his right to testify. (Duran, at
p. 296.) We also determined the defendant should have been “afforded a proper
and full opportunity to cross-examine” a critical witness and was “denied a proper
and full opportunity to explain why he fled” from the crime scene. (Id. at pp. 295-
296.) Observing that the evidence inculpating the defendant did not compel a
guilty verdict, and that the visible shackling damaged the defendant’s credibility in
the eyes of the jury, we concluded the compounded effect of these errors required
reversal of the judgment under People v. Watson (1956) 46 Cal.2d 818 (Watson).
(Duran, at pp. 295-296.)
       In Mar, the defendant was forced to wear a stun belt that was not visible to
the jury. The defendant, however, had “clearly stated that the device made it
difficult for him to think clearly and that it added significantly to his anxiety, and
the trial transcript confirm[ed] that defendant was nervous while testifying at
trial.” (Mar, supra, 28 Cal.4th at p. 1224.) “Moreover, defense counsel
specifically noted that defendant was ‘afraid that somebody’s going to push the
button,’ and in light of the circumstances that defendant was on trial for having
caused an injury to a law enforcement officer and that the activation of the stun
belt was to be controlled by another law enforcement officer, defendant’s
expressed anxiety in this regard, even if not justified, [was] plausible.” (Id. at
pp. 1224-1225.) Because of “the relative closeness of the evidence, the crucial
nature of defendant’s demeanor while testifying, and the likelihood that the stun
belt had at least some effect on defendant’s demeanor while testifying,” we
concluded the error was prejudicial, even under the Watson standard. (Id. at
p. 1225.) Thus, in both Duran and Mar, the respective records disclosed that the



                                          13
unjustified use of shackling and a stun belt had adverse effects that were not
harmless.
       In contrast to the situations presented in Duran and Mar, reversal of a
judgment is unwarranted when the record on appeal is devoid of evidence that the
unjustified use of shackles or a stun belt had any adverse effect. For instance,
while restraints have the potential to bias jurors against the defendant (People v.
Hernandez, supra, 51 Cal.4th at p. 742; Duran, supra, 16 Cal.3d at p. 290), their
use may be harmless when there is no indication the jurors saw the restraints. (See
People v. Manibusan (2013) 58 Cal.4th 40, 85 (Manibusan) [finding of
harmlessness based in part on circumstance that “[n]othing in the record suggests
that any juror saw the belt”]; People v. Foster (2010) 50 Cal.4th 1301, 1322;
People v. Letner and Tobin (2010) 50 Cal.4th 99, 155 (Letner) [“we do not
presume the prospective jurors viewed the restraint, and there is no evidence in the
record demonstrating they did observe it”]; accord, United States v. McKissick
(10th Cir. 2000) 204 F.3d 1282, 1299 [refusing to presume prejudice where no
evidence in record that any juror noticed the stun belt].)
       Likewise, while restraints can impair a defendant’s ability to testify
effectively (Duran, supra, 16 Cal.3d at p. 296), their use may be harmless when
the defendant chose not to testify at trial, and there is nothing in the record
suggesting a nexus between that decision and the forced wearing of the restraint.
(Virgil, supra, 51 Cal.4th at p. 1271; see People v. Combs (2004) 34 Cal.4th 821,
838-839; People v. Anderson (2001) 25 Cal.4th 543, 596; People v. Cox (1991)
53 Cal.3d 618, 652.)
       Finally, while shackles and stun belts certainly “have the potential to impair
an accused’s ability to communicate with counsel or participate in the defense,”
the erroneous imposition of those restraints may be harmless where the record
“does not reveal that any such impairment occurred.” (People v. Ervine (2009)

                                          14
47 Cal.4th 745, 773-774 [shackling]; see Manibusan, supra, 58 Cal.4th at pp. 85-
86 [stun belt]; People v. Howard (2010) 51 Cal.4th 15, 30 [stun belt] (Howard);
Letner, supra, 50 Cal.4th at p. 156 [“no evidence in the record demonstrating that
[the defendant’s] ability to participate was affected in any manner by his wearing
the leg brace”]; People v. Wallace (2008) 44 Cal.4th 1032, 1051 (Wallace) [no
evidence that shackling caused defendant to suffer from mental impairment,
physical pain, or obstruction of communication with counsel, or that it influenced
his decisions regarding testifying]; People v. Combs, supra, 34 Cal.4th at p. 839
[noting no evidence or claim that the defendant’s leg restraints influenced him not
to testify, or that the restraints “distracted him or affected his demeanor before the
jury”]; accord, Weaver v. State (Fla. 2004) 894 So.2d 178, 196; Stanford v. State
(Ga. 2000) 528 S.E.2d 246, 249-250; State v. Odenbaugh (La. 2011) 82 So.3d
215, 257-258; State v. Johnson (Ohio 2006) 858 N.E.2d 1144, 1179-1180.)5



5       In People v. Hill (1998) 17 Cal.4th 800, we reversed a death judgment
based in part on the trial court’s failure to independently assess whether the
defendant posed a sufficient danger of escape to warrant shackling before the jury.
(Id. at p. 846.) There, we did not review the record for evidence that the shackling
— which was not visible to the jury — adversely affected the defendant’s mental
state, but simply noted the “possibilities of prejudice.” (Ibid.) Significantly,
however, that defendant’s trial was rife with numerous other serious errors,
including constant and outrageous prosecutorial misconduct; the court’s failure to
excuse a bailiff from further courtroom duties after he testified against the
defendant; the court’s failure to instruct the jury regarding the bailiff’s testimony;
and instructional error under Carlos v. Superior Court (1983) 35 Cal.3d 131.
(Hill, at pp. 844-847.) Considered together, the prosecutorial misconduct and trial
court errors “created a negative synergistic effect, rendering the degree of overall
unfairness to defendant more than that flowing from the sum of the individual
errors.” (Id. at p. 847.) Because the circumstances in Hill were extraordinary, we
do not view its shackling discussion as casting doubt on the prejudice analysis of
the numerous other authorities cited above.




                                          15
           2. Analysis
       We turn to the facts in this case. Prior to defendant’s trial, which preceded
Mar, supra, 28 Cal.4th 1201, defendant objected to being physically restrained
and shackled during any of the court proceedings against him. At the time, the
only published authority addressing a trial court’s discretion to order a defendant
to wear a REACT stun belt was People v. Garcia (1997) 56 Cal.App.4th 1349
(Garcia), which concluded that, unlike shackling, a stun belt was not a physical
restraint requiring an on-the-record showing and finding of manifest need. (Id. at
pp. 1355-1356 & fn. 1.) In light of Garcia, the prosecution responded to
defendant’s objections with a request that defendant be required to wear a stun belt
throughout the trial, or in the alternative, that defendant be given the option of
wearing shackles instead. The prosecution supported its stun belt request by
pointing to the allegations of the charged crimes and the incidents described in the
statement of aggravation.
       Based on a deputy’s assurance that having two deputies in the courtroom
during defendant’s trial would provide adequate security, the court declined to
order shackling and determined that a stun belt would not be necessary. The court
ultimately required use of a stun belt after the sheriff’s department could not
guarantee the presence of two deputies unless a belt were ordered.
       When defendant first wore the belt in the courtroom, the court noted the
belt had “a special safety guard” and stated that if problems were to “arise with
comfort, or so forth,” defendant should “just let the deputies know at breaks. We
will make him as comfortable as possible.” Defense counsel immediately stated
the belt was uncomfortable for defendant and did not allow him to lean back in his
chair, so the attending deputy worked to adjust the belt. Because the deputy
thought defendant was concerned that leaning back would activate the belt, he
assured defendant and the court that that would not happen. After the belt was


                                          16
adjusted and defendant was given a pillow, defendant said, “That’s a little better.”
Later that day, defense counsel reported to the court that defendant was
“indicating for just this afternoon” that he was very uncomfortable because the
belt seemed tighter than before. The court ordered the attending deputy to do
whatever he could to make defendant comfortable, and the deputy agreed. When
the court acknowledged during this exchange that “sitting backwards with the box
at the hip . . . certainly can be uncomfortable,” defense counsel stated, “Judge, just
so we’re clear, I think we resolved that problem. I think he’s just got it on too
tight today.” After the belt was readjusted, the defense reported no additional
complaints or concerns about the stun belt at the guilt phase or the first penalty
trial.6
          After the first jury could not reach a penalty verdict, a different judge was
assigned to preside over the penalty retrial. The prosecution again requested use
of a stun belt, and defense counsel objected on two grounds. First, counsel argued
the belt was unnecessary because defendant had not done “anything in the past to
exhibit any kind of unruly behavior or any disrespect to the Court or any staff.”
Second, the belt was uncomfortable for defendant, and counsel was “worried
about any unconscious grimacing or exhibitions of discomfort that [defendant]
might make that might be misconstrued by the jury as a reaction to witness
testimony or anything like that.” When counsel asked the court to instead consider
ordering a leg brace, the court expressed its belief that shackling was “most

6      The only other mention of the stun belt during the first trial occurred when
the court and counsel addressed the security plans to be used when Robert
Cleveland, who allegedly harbored “very ill feelings” toward defendant for
“shooting him in the face and killing his wife,” was to take the stand. A deputy
explained that the plan was to have three deputies in the courtroom, one of whom,
as usual, would be monitoring the REACT stun belt.




                                            17
offensive.” Upon determining that a leg brace would not sufficiently address its
concerns “about the violent nature of [defendant’s] responses to people in
authority,” the court approved use of a stun belt and ordered a pillow to alleviate
defendant’s discomfort.
       Defendant first contends the trial court abused its discretion in forcing him
to wear the belt during the guilt phase because: (1) having determined the belt
would not be necessary if two deputies were available, the court should have
ordered the sheriff’s department to provide two deputies instead of deferring to the
department’s policy of not providing a second deputy unless a belt were ordered
(see Mar, supra, 28 Cal.4th at p. 1218 [trial court must make its own
determination of the manifest need for restraints and may not “abdicate[] this
decision-making authority to security personnel or law enforcement”]); and (2) the
court required use of the belt despite the absence of any on-the-record showing of
nonconforming conduct by defendant (see id. at pp. 1220-1221).7
       Defendant further contends the trial court abused its discretion in ordering a
stun belt for the penalty retrial because: (1) as before, there was no on-the-record
showing of nonconforming conduct by defendant, and the court instead relied on
unsworn out-of-court statements of an unidentified bailiff in concluding the belt
was necessary (see Mar, supra, 28 Cal.4th at pp. 1220-1221); (2) the court failed


7       Relying on Mar, supra, 28 Cal.4th 1201, defendant also complains the trial
court erroneously failed to make any inquiry into potential psychological
consequences and physical effects in the event he were restrained with a stun belt.
As discussed, however, Mar made clear its discussion regarding these inquiries
was offered to provide guidance for future trials. (Id. at pp. 1225-1226, 1230.)
Because defendant’s trial preceded the Mar decision by several years, the trial
court was not required to foresee and discuss such concerns before issuing its
order. (Virgil, supra, 51 Cal.4th at p. 1271; People v. Gamache, supra, 48 Cal.4th
at p. 367, fn. 7.)




                                         18
to consider defendant’s three-year record of courtroom cooperation; and (3) the
court failed to consider less drastic alternatives to the stun belt, such as additional
deputy presence in the courtroom (see id. at p. 1206 [“court should impose the
least restrictive measure that will satisfy the court’s legitimate security
concerns”]).
       In light of the People’s concession at oral argument that the trial court erred
under Mar, supra, 28 Cal.4th 1201, we proceed directly to the issue of prejudice.
As we shall explain, the record affirmatively dispels any notion of prejudice,
leaving no reasonable possibility that defendant would have received a more
favorable verdict had the trial court not required him to wear a stun belt. (People
v. Brown (1988) 46 Cal.3d 432, 446-448 (Brown).)8
       First, there is no evidence in the record that the jurors saw the stun belt at
any time. Thus, there is no basis for finding that visibility of the belt may have
biased the jurors’ perception of his character. (See People v. Foster, supra, 50
Cal.4th at p. 1322; Letner, supra, 50 Cal.4th at p. 155.) Second, defendant chose
not to take the stand, and the record contains no suggestion the forced wearing of
the belt played any role in that decision so as to inhibit his defense. (See Wallace,
supra, 44 Cal.4th at p. 1051; People v. Cox, supra, 53 Cal.3d at p. 652.)
       We next assess whether the stun belt had any other adverse effect on
defendant. During the first trial, the only time defendant voiced complaints about
the belt’s effects was on the first day he wore it. In the morning, he complained
the belt was uncomfortable and would not allow him to lean back in his chair. In
response, the court had the belt adjusted, offered defendant a different chair


8      We employ the test applicable to state law error at the penalty phase of a
capital trial, because defendant claims the court’s ruling affected both the guilt and
penalty phases.



                                           19
(which he declined), and provided him a pillow. That afternoon, defendant again
indicated discomfort because of the stun belt. At that point, defense counsel
clarified that defendant’s earlier difficulty with leaning back had been “resolved,”
and that the issue that afternoon pertained merely to the belt’s feeling tighter to
defendant than before. The stun belt was readjusted, and the defense reported no
additional complaints or concerns about the belt through the conclusion of the first
trial.
         At a hearing before the penalty retrial commenced, defense counsel
expressed worry to the trial court that the stun belt might cause defendant to
unconsciously grimace or exhibit discomfort that might be misconstrued by the
jury as a reaction to witness testimony. As in the first trial, the court ordered
defendant to wear the belt but made sure a pillow was provided to address the
discomfort issue. The retrial proceeded to its conclusion without any defense
claim or assertion that the stun belt was affecting defendant’s demeanor.
         We observe that, at the outset of the first trial, the attending deputy said he
thought defendant might be concerned that leaning back would activate the stun
belt. Although the defense offered no indication that defendant actually had this
worry, the deputy assured defendant and the court that leaning back would not
activate the belt. Throughout the duration of both trials, the defense never once
stated or suggested that the threat of electric shock affected defendant’s mental
state or that the belt caused him to experience mental stress or impairment.
         Justice Liu evidently agrees that the stun belt was not visible to the jurors,
that it did not affect defendant’s decision not to testify, that it did not inhibit
defendant’s ability to confer with counsel, and that it was not prejudicial at the
guilt phase. Nonetheless, Justice Liu identifies two incidents as supporting his
notion that the belt may have impaired defendant’s ability to maintain a positive
demeanor before the jury at the penalty retrial. First, he contends the penalty

                                            20
retrial court made a remark that defendant “could have reasonably interpreted . . .
as a warning that the bailiff would activate the stun belt if defendant were to
engage in any further verbal or nonverbal communication with his family.”
(Conc. & dis. opn. of Liu, J., post, at p. 32.) This, however, is pure conjecture.
The record contains no indication that defendant construed the court’s remark in
the manner suggested. The defense made no claim or objection that the remark
had any effect on defendant’s demeanor or mental state, and this despite the fact
that defense counsel readily complained when the belt was too tight or made it
difficult for defendant to lean back. Even defendant’s appellate briefing makes no
mention of the remark.
       Second, Justice Liu notes that, at the first penalty trial, the defense moved
to preclude the prosecution from commenting on defendant’s in-court demeanor,
and the trial court agreed that, up to that point, “ ‘the only real issue is lack of
emotion.’ ” (Conc. & dis. opn. of Liu, J., post, at p. 31.) Although Justice Liu
surmises that this exchange pertained to the stun belt’s effects, the defense offered
no indication at trial that its motion had anything to do with the belt; likewise,
defendant’s appellate briefing makes no reference to the exchange. The transcript
of the proceedings, read in context, shows that the exchange occurred while the
prosecution was still presenting its case in aggravation, so it is hardly surprising
that defendant may have sat impassively while testimony of the prosecution’s
witnesses was being taken. Moreover, the thrust of the defense’s motion was that
there was no foundation for negative prosecutorial comment on defendant’s
demeanor or supposed lack of remorse, because there was no evidence of
defendant’s acting out or inability to control himself in court. As indicated by its
comment, the trial court agreed.
       Neither of these incidents supports Justice Liu’s speculation that the stun
belt may have caused defendant to exhibit any observable behavior that would

                                           21
have detracted from his defense. In fact, the record is to the contrary,
affirmatively demonstrating the assessment of defense counsel that the jurors’
consideration of defendant’s courtroom demeanor would have a favorable effect
on their penalty determination. Specifically, at each of the penalty trials counsel
urged the court to give two special instructions that would have told the jurors
their in-court observations of defendant could be considered in mitigation. When
the court expressed skepticism about giving these instructions at the first penalty
trial, defense counsel held fast and countered that case law permitted the jurors “to
draw a humane perception of the defendant by his conduct, the way he looked.”
Although the defense’s special instructions were refused at both penalty trials, the
only reasonable inference that can be drawn from counsel’s vigorous efforts on
this point is that the stun belt did not have the prejudicial effect urged by Justice
Liu.
       Howard, supra, 51 Cal.4th 15, is instructive under these circumstances. In
Howard, the defendant claimed the trial court erred and violated his constitutional
rights by requiring him to wear a stun belt without making the requisite finding of
manifest need. Although we agreed the court’s order was error, we found it was
not prejudicial even assuming application of the “reasonable doubt” harmless error
test of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Howard, at p. 30.)
There the record showed the defendant had made an extended statement to the
court at sentencing that antipsychotic medication affected his mental state during
trial. (Id. at p. 29.) Significantly, however, the defendant “made no reference to a
stun belt or its effects on his demeanor.” (Ibid.) Therefore, we concluded,
wearing the stun belt had “no appreciable effect on him, even by his own account”
(id. at p. 30), and “the record affirmatively dispels any notion that he was
prejudiced” (id. at p. 28). (See also Manibusan, supra, 58 Cal.4th at p. 86
[defendant’s psychological impact argument lacked any support in the record and

                                          22
was inconsistent with his express agreement to wear stun belt and his failure to
mention the issue in his new trial motion].)
       A similar finding of harmlessness is warranted here. When defendant
began wearing the stun belt, the trial court told the defense to let the deputies
know if any problems were to arise with the belt. As the record reflects, defendant
and his counsel identified only one complaint, namely, that the belt was
uncomfortable to wear, either because it would not allow defendant to lean back in
his chair or because it was too tight. A pillow was provided, and each time the
defense spoke up, the court ordered adjustment of the belt in order to make
defendant as comfortable as possible. Notably, the defense made no mention at
either trial of the stun belt’s potential or actual effects on defendant’s mental state,
and the record contains no hint that wearing the belt caused defendant to
experience mental distress or that it inhibited his ability to confer with counsel and
participate in his defense. Moreover, defendant’s current claim of prejudicial
psychological impact is inconsistent with his complete failure to mention the stun
belt or its effects in any of his various motions for a mistrial, a new guilt trial, and
a new penalty trial. (See Manibusan, supra, 58 Cal.4th at p. 86.) Finally, any
contention that the belt may have caused defendant to exhibit a negative demeanor
is highly dubious given defense counsel’s on-the-record arguments that the jurors
should be specially instructed that their in-court observations of defendant could
be considered in mitigation.
       Defendant claims his inability to turn around in his chair prevented him
from seeing the prospective jurors at the penalty retrial and participating fully in
the jury selection process. He also suggests his failure to face the prospective
jurors may have alienated them. A fair reading of the reporter’s transcript
discloses, however, that the stun belt had nothing to do with the circumstance that
defendant could not see or face the prospective jurors. Rather, as defense counsel

                                           23
explained to the trial court, defendant had been specifically instructed to face
forward at the counsel table and to not turn around at all, despite the unusual
circumstance that the prospective jurors were all behind the counsel table. As
soon as counsel brought this to the court’s attention, defendant was allowed to
move to the end of the table. Once there, defendant could see the prospective
jurors while still facing forward as instructed, and the defense made no further
complaints along this line.9 Thus, any claimed interference and alienation during
the jury selection process cannot be attributed to the stun belt.
       In sum, there is no evidence that the stun belt was visible to the jurors or
that it affected defendant’s decision not to testify. Likewise, there is no indication
the belt caused defendant mental anxiety or inhibited his ability to confer with
counsel and participate in his defense. There is, however, evidence that defense
counsel viewed defendant’s demeanor as weighing in his favor during the penalty
trial. Accordingly, the record affirmatively dispels any notion of prejudice,
leaving no reasonable possibility that defendant would have received a more
favorable verdict had the trial court not required him to wear a stun belt. (Brown,
supra, 46 Cal.3d at pp. 446-448; see Howard, supra, 51 Cal.4th at p. 28; id. at
p. 30; Letner, supra, 50 Cal.4th at p. 156; People v. Ervine, supra, 47 Cal.4th at

9        Defense counsel’s statements were as follows: “Yesterday it came to my
attention that [defendant’s] instructions at counsel table are to face forward, not
turn around at all. [¶] Because this is an unusual proceeding where we have all the
jurors behind us, I’m asking for permission to let him turn and be able to look at
the jury, because I realized yesterday that he hasn’t seen any of these jurors. He’s
not able to participate fully in helping me select this jury. And plus I don’t want to
give the wrong impression to the jurors that he doesn’t care and he’s not going to
turn around and be able to look them in the eye. So we have a conflict between
. . . .” At that point the court suggested that defendant could sit at the end of the
table, where he would be facing forward at all times. The deputy readily agreed,
and we may infer that the issue was resolved to everyone’s satisfaction.




                                          24
pp. 773-774; Wallace, supra, 44 Cal.4th at p. 1051; People v. Anderson, supra, 25
Cal.4th at p. 596; People v. Cox, supra, 53 Cal.3d at pp. 650, 652 [no prejudice
found even where defense counsel complained the handcuff used on defendant
was “very uncomfortable”].)
       Defendant, citing lower federal court decisions, argues the same error we
recognized in Mar, supra, 28 Cal.4th 1201, violated his federal constitutional
rights to due process, effective assistance of counsel, and a reliable penalty phase
trial. However, neither we nor the United States Supreme Court has decided
whether such state law error also implicates the federal Constitution. (See
Howard, supra, 51 Cal.4th at p. 30; Mar, supra, 28 Cal.4th at p. 1225, fn. 7.) We
need not decide the issue in this case. As this opinion explains, the record
affirmatively dispels any inference of prejudice under Brown, supra, 46 Cal.3d
432. For the same reason, the People have satisfied their burden under Chapman,
supra, 386 U.S. 18, to show that any federal errors are harmless beyond a
reasonable doubt. (See Howard, at p. 30; see also People v. Gonzalez (2006) 38
Cal.4th 932, 961 [“ ‘Brown’s “reasonable possibility” standard and Chapman’s
“reasonable doubt” test . . . are the same in substance and effect.’ ”].) Finally, as
defendant’s counsel acknowledged at oral argument, we have held that a court’s
abuse of discretion in requiring use of a stun belt is not structural in nature and is
not reversible per se. (Howard, at p. 30, fn. 6.)

       B. Guilt Phase Issue

           First Degree Murder Conviction and Robbery-Murder Special-
               Circumstance Finding
       The murder count and the sole special circumstance allegation were tried on
the theory that defendant killed Monique Cleveland while robbing or attempting to
rob Robert Cleveland. (Former § 190.2, subd. (a)(17)(i), now § 190.2, subd.
(a)(17)(A).) The prosecution’s special circumstance verdict form, however,


                                          25
specified robbery only, and omitted reference to attempted robbery. The jury
returned that form, which expressly stated that the murder was committed while
defendant was engaged in the commission of a robbery. Defendant claims the
evidence fails to support the jury’s robbery-murder special-circumstance finding,
because there is no evidence that anything was actually taken from Robert.
Hence, he urges reversal of that finding, the first degree murder conviction, and
the death judgment.
       “ ‘On appeal, “ ‘we review the entire record in the light most favorable to
the judgment to determine whether it contains substantial evidence — that is,
evidence that is reasonable, credible, and of solid value — from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’
[Citation.]” [Citation.] In conducting such a review, we “ ‘presume[] in support
of the judgment the existence of every fact the trier could reasonably deduce from
the evidence.’ [Citation.]” [Citations.] “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination depends.
[Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look
for substantial evidence.” [Citation.] These same principles apply to review of
the sufficiency of the evidence to support a special circumstance finding.
[Citations.]’ [Citation.]” (People v. Harris (2013) 57 Cal.4th 804, 849.) The
federal standard of review is in accord. (People v. Rodriguez (1999) 20 Cal.4th 1,
11, relying on Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
       We assume for the purposes of argument that the evidence was insufficient
to establish that either defendant or his accomplices actually took anything from
the Cleveland house. The prosecution, however, was under no obligation to prove
that defendant had successfully completed a robbery, because both the first degree

                                           26
felony-murder conviction and the special circumstance finding could properly be
premised on a finding that defendant had attempted to rob Robert. (See § 189;
former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A).)
       As the record discloses, it was made abundantly clear to the jury that the
prosecution need only prove the murder had occurred during an attempted
robbery. The information, which was read to the jury, alleged that defendant had
committed murder while engaged in the commission or attempted commission of
the crime of robbery. The jury received instructions on the elements of robbery
and the elements of attempt. As to the charge of murder, the court instructed that
the prosecution must prove “a human being was killed; . . . the killing was
unlawful; and . . . the killing occurred during the commission or attempted
commission of a robbery.” (Italics added.) The court further instructed: “The
specific intent to commit a robbery and the commission or attempted commission
of such crime must be proved beyond a reasonable doubt.” (Italics added.) As for
the special circumstance allegation, the jury was instructed to determine whether
the murder “was committed while the defendant was engaged in the commission
or attempted commission of a robbery,” and was cautioned that the special
circumstance is not established if “the robbery or attempted commission of a
robbery was merely incidental to the commission of the murder.” (Italics added.)
Finally, the prosecution emphasized in closing argument that an attempted robbery
was sufficient to support the charges against defendant. While conceding “at best
it’s murky whether they got dope or money from that house,” the prosecution
correctly explained “there is no necessity that property is actually taken.”
       Defendant acknowledges the evidence at trial was sufficient to prove
Monique’s murder occurred during the attempted commission of a robbery. But,
he argues, the special verdict form shows the jury expressly found true only that
the murder was committed while defendant “was engaged in the commission of

                                         27
the crime of ROBBERY.” Thus, he reasons, the felony-murder conviction and the
robbery-murder special-circumstance finding are invalid because the evidence is
insufficient to prove a completed robbery. This contention is meritless.
       The verdict form’s failure to reference an attempted commission of robbery
did not serve to limit the charges against defendant. Nor did the jury’s return of
that form restrict its finding to one of a completed robbery. “A verdict should be
read in light of the charging instrument and the plea entered by the defendant. . . .
[T]he form of the verdict generally is immaterial, so long as the intention of the
jury to convict clearly may be seen. [Citations.]” (People v. Paul (1998)
18 Cal.4th 698, 706-707; see also People v. Jones (1997) 58 Cal.App.4th 693, 710
[“ ‘ “A verdict is to be given a reasonable intendment and be construed in light of
the issues submitted to the jury and the instructions of the court.” ’ ”].) As
indicated, both the prosecution and the court told the jury to return the verdict
form if it found true the robbery-murder special-circumstance allegation, and the
court repeatedly instructed that the allegation could be found true if the
prosecution proved the murder had been committed during the commission or
attempted commission of a robbery. In returning the verdict form, the jury clearly
manifested its intention to find true the allegation charged. That the form did not
describe all of the circumstances under which the allegation could be proved is,
under these circumstances, merely a technical defect that may be disregarded
because “ ‘ “the jury’s intent to convict of a specified offense within the charges is
unmistakably clear, and the accused’s substantial rights suffered no prejudice.” ’ ”
(People v. Jones (2003) 29 Cal.4th 1229, 1259.)
       Defendant’s sufficiency of the evidence claim is rejected.




                                          28
       C. Penalty Phase Issues

           1. Granting of Prosecution’s Challenge for Cause
       At the penalty retrial, the trial court granted the prosecution’s request to
excuse Prospective Juror J.C. for cause. Defendant contends this excusal violated
the Sixth and Fourteenth Amendments to the federal Constitution under the
standards established in Witherspoon v. Illinois (1968) 391 U.S. 510
(Witherspoon) and Wainwright v. Witt (1985) 469 U.S. 412 (Witt). This claim is
without merit.
       Prospective Juror J.C.’s questionnaire responses indicated she had never
given “much consideration” to the death penalty, although she believed it was
imposed too often “against African-American males.” During voir dire, J.C.
further explained her views, stating: “I wouldn’t say I’d be the first one to jump
up and say give him the death penalty, no. You have to weigh options. But I
don’t think I would be very likely to vote definitely for the death penalty.”
       K.M. was in the same group of prospective jurors and was questioned in
front of J.C. After ascertaining that gang members had recently killed K.M.’s
cousin, the court asked if K.M. would “just keep flashing back to that situation”
and whether that situation would “black out what you’re hearing in this trial?”
K.M. responded, “It’s too fresh right now.” Because K.M. might have difficulty
sitting through the proceedings, the parties stipulated to his excusal.
       The prosecution thereafter asked the group of prospective jurors whether
any of them did “not feel that they could in fact be a person who could participate
in a verdict that will result in the death of [defendant],” and Prospective Juror J.C.
raised her hand. When asked to explain her feelings about her ability to “be a
juror in this case and to actually impose capital punishment,” J.C. stated: “I’m a
widow. I’m a recent widow. 17 months ago I buried my husband. My husband




                                          29
died in my arms. I just can’t deal with death that well. No disrespect. I don’t
want anything to do with this, sir.” The following exchange then occurred:
       “[Prosecutor]: It would be a personal hardship for you?
       “Prospective Juror [J.C.]: Very much so.
       “[Prosecutor]: Like [Prospective Juror K.M.]?
       “Prospective Juror [J.C.]: Very much so.”
       The prosecution later moved to dismiss Prospective Juror J.C. for cause.
The defense submitted, and the court granted the motion.
       “The federal constitutional standard for dismissing a prospective juror for
cause based on his or her views of capital punishment is ‘ “[w]hether the juror’s
views would prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.” ’ (Uttecht v. Brown (2007)
551 U.S. 1, 7, citing [Witt, supra,] 469 U.S. [at p.] 424.)” (People v. Friend
(2009) 47 Cal.4th 1, 56.) “When the prospective juror’s answers on voir dire are
conflicting or equivocal, the trial court’s findings as to the prospective juror’s state
of mind are binding on appellate courts if supported by substantial evidence.”
(People v. Duenas (2012) 55 Cal.4th 1, 10.)
       The voir dire of Prospective Juror J.C. amply supports the trial court’s
decision to excuse her. Although initially she gave little indication that anything
would prevent her from serving as a juror, she later stated, clearly and
unequivocally, that she would be impaired. J.C. raised her hand when asked
whether anyone could not participate in a verdict sentencing defendant to death,
and proclaimed she did not “want anything to do with this.” She also affirmed that
her situation was similar to that of Prospective Juror K.M., who had indicated a
recent tragedy would make him unable to listen to and weigh the evidence
presented at trial. J.C.’s voir dire responses furnished substantial evidence of her
inability to perform her duties as a juror.

                                          30
       To the extent defendant claims the trial court erred because Prospective
Juror J.C. appeared impaired by the recent death of her husband and not by her
views about capital punishment, defendant misunderstands Witt and Witherspoon.
Those decisions limit the extent to which jurors may be excused for cause because
of their views on capital punishment, but they do not hold such views are the only
grounds on which a challenge for cause may be granted. (See Witt, supra, 469
U.S. at pp. 421-424; Witherspoon, supra, 391 U.S. at pp. 522-523.) Whether
J.C.’s expressed inability to perform the duties of a juror was due to the death of
her husband, or was instead based on her general views about the death penalty,
her responses affirmed she was unable to consider and render a death verdict if
appropriate. The trial court did not err in excusing her for cause.

           2. Admission of Defendant’s Postarrest Statement
       Over defendant’s objection, the trial court allowed Los Angeles Police
Officer Damon Aoki to give the following testimony at the penalty retrial. More
than a month after the instant crimes, Officer Aoki approached defendant and
several members of the 8 Trey gang who were drinking in public. Aoki took
defendant into custody after he gave Aoki a false name. Although defendant gave
another false name at the police station, a subsequent fingerprint check revealed
defendant’s true identity and also the arrest warrant for the murder. At some
point, defendant, who was handcuffed, told Aoki that “if he had had a gun” when
the officers had stopped him, “he would have had to shoot it out with [them] due
to the fact that he had two strikes.” Despite presenting this testimony to the jury,
the prosecution made no mention of it during closing arguments.
       Although the record is somewhat unclear, the trial court apparently
concluded that defendant’s statement that he would have shot the arresting officers
had he had a gun was admissible to show defendant’s lack of remorse about



                                         31
Monique Cleveland’s murder. On appeal, defendant maintains such evidence was
irrelevant and highly prejudicial because postcrime evidence of remorselessness
does not fit within any statutory sentencing factors. Thus, he claims, its admission
violated both California law and his federal constitutional rights to due process, a
fair trial, and a reliable penalty determination.
       Although “[c]onduct or statements at the scene of the crime demonstrating
lack of remorse may be consider[ed] in aggravation as a circumstance of the
capital crime under section 190.3, factor (a),” “ ‘postcrime evidence of
remorselessness does not fit within any statutory sentencing factor.’ ” (People v.
Pollock (2004) 32 Cal.4th 1153, 1184.) Because such evidence is irrelevant to
aggravation, it generally is inadmissible unless introduced to rebut evidence of
remorse presented in mitigation. (Id. at pp. 1184-1185). Here, the People do not
contend Officer Aoki’s testimony was admissible to demonstrate a lack of
remorse.
       Instead, the People invoke the settled rule that “ ‘ “a ruling or decision,
itself correct in law, will not be disturbed on appeal merely because given for a
wrong reason.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 976; see also People v.
Brown (2004) 33 Cal.4th 892, 901 [“If a judgment rests on admissible evidence it
will not be reversed because the trial court admitted that evidence upon a different
theory, a mistaken theory, or one not raised below.”] The People assert that, even
if Officer Aoki’s testimony was not admissible to show defendant’s lack of
remorse, it was properly admitted to show his consciousness of guilt. Defendant
counters that, given the events preceding his statements to Aoki and defendant’s
mention of his two strikes as the reason why he would want to shoot the arresting




                                          32
officers, it is unreasonable to infer anything about defendant’s supposed state of
mind or his consciousness of guilt.10
       Given the surrounding circumstances, including the fact that defendant
falsely identified himself twice, a rational jury could view defendant’s statement
about shooting it out with the arresting officers as reflecting defendant’s
knowledge that he had committed two very serious crimes and his strong desire to
evade capture. (See People v. Russell (2010) 50 Cal.4th 1228, 1253-1255
[defendant allegedly stated he would shoot the police if they came]; People v.
Dabb (1948) 32 Cal.2d 491, 495, 500 [when stopped by police, defendant started
shooting immediately].) Although the record does not disclose why defendant
chose to verbalize his thoughts to Officer Aoki, the circumstance that defendant
used the term “two strikes” does not extinguish its tendency to show
consciousness of guilt of the two Cleveland shootings, particularly since defendant
may not have known what information the police had at the time. Because
evidence that a defendant committed the crimes charged is one of the most crucial
“circumstances of the crime of which the defendant was convicted” (§ 190.3,
factor (a)), admission of the challenged testimony was not error.11




10      Defendant bases this contention on the following alleged circumstances:
His statement was made more than a month after the Cleveland shootings; neither
the statement itself nor anything leading up to it refers to those crimes; the
statement was made after defendant had been arrested for drinking in public, not
for murder; the statement was made before defendant was informed there was a
murder warrant, and there was a different warrant out for his arrest at the time.
11      Defendant’s derivative constitutional claims based on the introduction of
this evidence fail to compel a different result. (People v. Lewis (2008) 43 Cal.4th
415, 531.)



                                         33
           3. Admission of Evidence Concerning Victim’s Pregnancy
       Over defendant’s objection, the trial court admitted testimony at the penalty
retrial that Monique was approximately one month pregnant at the time of her
death, as well as an autopsy photograph of the embryo. Defendant contends this
was error because the evidence was irrelevant and unduly prejudicial. He further
argues that admission of the evidence violated his rights under the Eighth and
Fourteenth Amendments and their California counterparts. We are not persuaded.
       “The Eighth Amendment to the federal Constitution permits the
prosecution, in a capital case, to present evidence about the murder victim and the
specific harm that the defendant caused as relevant to the jury’s penalty decision.
[Citations.] In California, the prosecution may introduce evidence of the specific
harm caused by a defendant’s crime at the penalty phase in aggravation as a
circumstance of the crime (§ 190.3, factor (a)). [Citations.]” (People v. Jurado
(2006) 38 Cal.4th 72, 130-131 (Jurado).)
       In Jurado, supra, 38 Cal.4th 72, we held that evidence of a murder victim’s
pregnancy was admissible in the capital defendant’s penalty phase under section
190.3, factor (a). (Jurado, at pp. 130-131.) In so holding, we rejected the
defendant’s contention that the evidence was irrelevant and so unduly prejudicial
as to require exclusion. As we explained, the circumstance that the defendant had
ended “the life of a healthy 17-week-old fetus [the victim] was carrying was part
of the harm caused by defendant’s crime and thus was a legitimate, though
emotional, consideration for the jury in making its penalty decision.” (Id. at
p. 131.) Under Jurado, the admissibility of such evidence does not turn on a
defendant’s knowledge of the pregnancy, because facts concerning the victim that
are admissible as circumstances of the crime “are not limited to those known to or
reasonably foreseeable by the defendant at the time of the murder.” (Ibid.)




                                         34
       Consistent with Jurado’s analysis, we conclude the evidence of Monique’s
pregnancy was properly admitted as one of the circumstances of defendant’s crime
and, contrary to defendant’s suggestion, the mere fact of her pregnancy was not so
unduly prejudicial as to require exclusion.12 That defendant terminated the
existence of the one-month-old embryo Monique was carrying was undeniably a
harm resulting from defendant’s crime and thus was a proper circumstance for the
jury to weigh as part of its penalty deliberations. (Jurado, supra, 38 Cal.4th at
pp. 130-131.)
       Defendant contends Jurado’s analysis is not controlling here, because there
was no evidence that anyone knew of Monique’s pregnancy. We cannot agree that
the relevance of Monique’s pregnancy turns on whether it was known to anybody.
Rather, its relevance stems from the circumstance that termination of Monique’s
pregnancy was part of the specific harm caused by defendant’s crime, as well as
the circumstance that the victim’s surviving family members will feel the impact
of that crime, whether or not they knew of the pregnancy beforehand. (See
Jurado, supra, 38 Cal.4th at pp. 130-131.)
       Defendant complains there was no showing that Monique’s pregnancy was
planned or wanted, or that her pregnancy would not have ended in a miscarriage or
abortion. No matter. The evidence remained relevant and admissible without



12     Defendant points out the trial court described the pregnancy evidence as
“highly prejudicial.” The court, however, was merely commenting that the
evidence was highly adverse to defendant’s case, a circumstance that would not
preclude its admission. (See People v. Salcido (2008) 44 Cal.4th 93, 148, and
cases cited.) Notably, the court overruled defendant’s Evidence Code section 352
objection, specifically finding the pregnancy evidence would not create “a
substantial danger of undue prejudice or confusing the issues or misleading the
jury.”




                                         35
such showings, though defendant was free to argue these matters to the jury to
lessen the impact of the aggravating evidence.
       Defendant next argues the admission of the autopsy photograph of the
embryo was erroneous and an abuse of discretion under Evidence Code section
352. We disagree.
       “A trial court has broader discretion to admit photographic evidence of the
crime at the penalty phase than at the guilt phase. ‘This is so because the
prosecution has the right to establish the circumstances of the crime, including its
gruesome consequences (§ 190.3, factor (a)), and because the risk of an improper
guilt finding based on visceral reactions is no longer present.’ ” (People v. Mills
(2010) 48 Cal.4th 158, 205.) “The prosecution [is] entitled to have the penalty
jury consider the real-life consequences of defendant’s actions” and is not obliged
to prove its case with “ ‘evidence solely from live witnesses.’ ” (People v.
Solomon (2010) 49 Cal.4th 792, 842.)
       Here, the embryo photograph was sufficiently relevant to justify its
admission. As defendant appears to acknowledge, there was no evidence that
Monique was noticeably pregnant. But Dr. Choi, who conducted the autopsy,
discovered an embryo about 10 millimeters in length (less than 0.4 inch) in the
victim’s uterus and determined she had been one month into a pregnancy at the
time of her death. Thus, the photograph served to demonstrate the basis for Dr.
Choi’s opinion concerning Monique’s pregnancy and constituted evidence of a
specific harm caused by defendant, i.e., the termination of its existence. (See
Jurado, supra, 38 Cal.4th at pp. 130-131.)
       Moreover, we cannot say, either as a legal or a factual matter, that the
photograph was inadmissible because it added nothing of substance to Dr. Choi’s
testimony. First, it is settled that prosecutors are not required to prove their cases
with evidence solely from live witnesses (People v. Solomon, supra, 49 Cal.4th at

                                          36
p. 842.) Second, and more to the point, the photograph had significant probative
value in that it showed to the jury, more accurately than any testimony, the extent
to which the embryo had begun to develop an identifiable head, spine, and
extremities when its existence was extinguished. For some jurors, the photograph
may have shown the embryo’s physical development was greater than what they
gleaned from Dr. Choi’s testimony, while for other jurors, the extent of
development may have been less than what they had expected. Thus, the
photograph not only corroborated Dr. Choi’s testimony, but it assisted each juror’s
understanding of it. (See ibid.) The prosecution was entitled to ask the jury to
consider the photographic evidence of the embryo’s development in weighing the
harm caused by defendant and the loss to the victim’s family.
       Finally, the trial court did not abuse its discretion in determining the
probative value of the photograph outweighed any prejudicial effect. (See Evid.
Code, § 352.) The photograph, which we have reviewed, is neither gory nor
particularly disturbing. Moreover, as displayed to the jury, it was “redacted” so as
to show a tightly cropped picture of the embryo with minimal inclusion of the
surrounding tissue. The image of the four-week-old embryo is nothing like those
of fetuses at far more advanced stages of development, which in other jurisdictions
were found to have been erroneously admitted. (E.g., McCarty v. State
(Okla.Crim.App. 2002) 41 P.3d 981 [where issue was viability of a 24-week fetus,
photo of the fetus extracted from its mother’s body postmortem was misleading,
highly inflammatory, and prejudicial]; Erazo v. State (Tex.Crim.App. 2004) 144
S.W.3d 487 [erroneous admission of photo of a 28-week fetus required reversal
and remand for determination of harm]; Rolle v. State (Tex.App. 2012) 367
S.W.3d 746 [photo of a nearly six-month fetus erroneously admitted at guilt phase
but found harmless].)



                                          37
       In sum, the photograph here was “neither unduly gruesome nor
inflammatory,” nor was it “ ‘of such a nature as to overcome the jury’s
rationality.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 650.) Accordingly, its
admission at the penalty phase was not an abuse of discretion under Evidence
Code section 352 and did not violate defendant’s constitutional rights.13

           4. Admission of Autopsy Photograph of Monique Cleveland
       During the penalty retrial, the prosecution sought to introduce an autopsy
photograph of Monique in which her eyes were open. The prosecution wanted to
use this photograph to illustrate Dr. Choi’s anticipated testimony that burn marks
on one of Monique’s eyeballs indicated her eyes had been open when she was
shot. In admitting the photograph over defendant’s objections, the court
determined that the evidence was relevant to show Monique’s awareness of “her
impending death at the hands of the defendant” and that it would not create a
substantial danger of undue prejudice.
       That Monique’s eyes were open at the time she was shot was a relevant
circumstance of the crime (§ 190.3, factor (a)), and the photograph showing the
burn marks on her eyeball assisted the jury in understanding Dr. Choi’s testimony
on the matter (see People v. Solomon, supra, 49 Cal.4th at p. 842; People v.

13     The prosecution referred to the embryo as a “baby” or an “unborn” child
several times during its closing argument. Citing these instances, defendant
argues the prosecution “powerfully used the already potent photographic evidence,
on top of the highly prejudicial testimony about the pregnancy itself, to make an
emotionally-charged appeal to the jurors that was certain to have an inflammatory
impact.” No basis for reversal appears. As discussed, Dr. Choi’s testimony and
the cropped embryo photograph were relevant to the jury’s penalty decision and
properly admitted. To the extent defendant asserts the prosecution’s various
arguments were inflammatory and inappropriate, his failures to object and request
admonitions forfeit review of the contention on appeal. (People v. Thomas (2012)
54 Cal.4th 908, 943; People v. Hamilton (2009) 45 Cal.4th 863, 958.)




                                         38
Brasure (2008) 42 Cal.4th 1037, 1054). The photograph was not unduly
prejudicial simply because it demonstrated the manner in which defendant
committed the crime. (See Brasure, at p. 1054.) Moreover, we have reviewed the
photograph and find nothing especially gruesome or inflammatory about it.
Accordingly, the court acted within its broad discretion in admitting the
photograph, and defendant was not deprived of due process or a reliable capital
sentencing determination. (See id. at pp. 1054-1055.)

            5. Admission of Victim Impact Evidence of Defendant’s Prior Crimes
       Over defendant’s objection, the trial court admitted victim impact evidence
regarding defendant’s prior armed robbery and carjacking of Joseph Canada and
his armed robbery at a drugstore involving store clerk Daila Llamas. Both Canada
and Llamas testified about the fear they felt during the robberies and its lasting
effect. Defendant claims the court erred in admitting such testimony under section
190.3, factor (b) (factor (b)). Defendant is wrong.
       Evidence is admissible under factor (b) when it shows that the defendant
engaged in criminal activity that violated a penal statute and involved “ ‘the use or
attempted use of force or violence or the express or implied threat to use force or
violence’ . . . directed at a person.” (People v. Thomas (2011) 52 Cal.4th 336,
363.) It is settled that “the circumstances of the . . . violent criminal conduct,
including its direct impact on the victim or victims of that conduct, are admissible
under factor (b).” (People v. Demetrulias (2006) 39 Cal.4th 1, 39; see People v.
Jones (2012) 54 Cal.4th 1, 73 (Jones).) We decline defendant’s request to
reconsider our case law and conclude the challenged evidence was properly
admitted. Having so concluded, we reject defendant’s related claim that erroneous
admission of the evidence contravened the Eighth Amendment. (See Demetrulias,
at p. 40, fn. 15.)



                                          39
           6. Admission of Evidence of Prior Criminal Activity
       As part of its case-in-chief, the prosecution introduced evidence of the
following four instances of defendant’s prior criminal activity under factor (b):
(1) his September 1994 arrest for being a felon in possession of a firearm; (2) his
November 1995 fight with an inmate near the prison basketball court; (3) his June
1995 participation in a gang-related prison melee; and (4) his involvement in an
August 1995 incident in which he and two other inmates refused a prison guard’s
order to “get down.” Defendant contends the admission of this evidence was error
and violated his due process rights, because these incidents did not involve “the
use or attempted use of force or violence or the express or implied threat to use
force or violence.” (Factor (b).)
       The record is unclear, but it appears defendant may not have made these
particular objections to the evidence of the first three incidents. In any event,
evidence generally is admissible under factor (b) if it shows the defendant engaged
in criminal activity that violated a penal statute and involved “ ‘the use or
attempted use of force or violence or the express or implied threat to use force or
violence’ . . . directed at a person.” (People v. Thomas, supra, 52 Cal.4th at
p. 363.) The evidence must be sufficient to “allow a rational trier of fact to find
the existence of such activity beyond a reasonable doubt.” (People v. Griffin
(2004) 33 Cal.4th 536, 584.) For the reasons below, defendant’s contentions as to
all four incidents lack merit.

                (a) Defendant’s Arrest for being a Felon in Possession of a
                    Firearm
       Although “[p]ossession of a firearm is not, in every circumstance, an act
committed with actual or implied force or violence” such that it would be
admissible under factor (b), “[t]he factual circumstances surrounding the
possession . . . may indicate an implied threat of violence.” (People v. Bacon


                                          40
(2010) 50 Cal.4th 1082, 1127.) As the testimony of two officers indicated, such
circumstances were present here. Defendant was found in possession of a
handgun during a stop of an automobile whose occupants were believed to be
involved in gang-related activity. Defendant’s possession of this handgun was
illegal because he was a convicted felon. When found on the seat where defendant
had been sitting, the handgun was loaded with five rounds in the magazine and
one in the chamber. On this record, “the jury legitimately could infer an implied
threat of violence.” (People v. Dykes (2009) 46 Cal.4th 731, 777 [evidence of
firearm possession properly admitted where its possession without a permit was
illegal, gun was loaded and ready to use, and the defendant had used similar
firearm in committing offense for which he was then on trial].)

               (b) Defendant’s Fight with an Inmate Near the Basketball Court
       Although the guard who witnessed the fight testified he did not know
whether defendant was the aggressor, neither side offered any evidence suggesting
that defendant’s participation in the fight was legally justified. “ ‘[W]here the
prosecution’s evidence shows a jailhouse scuffle, the scene as witnessed does not
suggest defendant may have been acting in self-defense, and defendant presents no
evidence in mitigation, a finding of criminal assault is justified.’ ” (People v.
Moore (2011) 51 Cal.4th 1104, 1136, quoting People v. Lucky (1988) 45 Cal.3d
259, 291.) Hence, the case law supports submission of this incident to the jury.

               (c) Defendant’s Involvement in Prison Melee Between Rival Gangs
       With regard to the gang-related prison melee, the evidence indicated
defendant might have had a legal justification for any assault he committed, or
perhaps not.
       On the one hand, the evidence showed the fight began when members of
the 415 gang ran across the yard toward certain members of the Crips gang, of



                                          41
which defendant was a member. Given this evidence, defendant could plausibly
claim he was acting in self-defense or in defense of another.
       On the other hand, Officer Ghan, who witnessed the melee, testified that
the day before there had been multiple fights between Crips members and 415
members. On the day of the melee, Officer Ghan knew there was “trouble
brewing” based on his observation of the prisoners’ “very unusual behavior” in the
yard: Factions of both the Crips and the 415’s were milling around back and forth,
and all other prisoners had vacated the area between these two groups. This
testimony gave rise to a reasonable inference that the fight between the Crips and
the 415’s had been prearranged, and that prisoners involved on both sides had
engaged in “ ‘mutual combat’ . . . pursuant to mutual intention, consent, or
agreement preceding the initiation of hostilities.” (People v. Ross (2007) 155
Cal.App.4th 1033, 1045, italics omitted.) In this scenario, defendant’s
participation in the mutual combat “may preclude reliance on self-defense to
defeat a charge of assault, or similar offense, unless [he] took specific steps to
desist from the combat.” (Id. at p. 1043, fn. 11; see also People v. Lucky, supra,
45 Cal.3d at p. 291 [“Voluntary mutual combat outside the rules of sport is a
breach of the peace, mutual consent is no justification, and both participants are
guilty of criminal assault.”].) Thus, evidence of the incident was admissible, and
it was for the jury to decide whether defendant’s participation in the melee was
legally justified or whether violent criminal activity had been proven.
       Accordingly, with respect to the above three incidents, the evidence was
sufficient to permit the jury to find the existence of prior criminal activity beyond
a reasonable doubt. As to these three incidents, we reject defendant’s claims of
error and further reject his derivative constitutional claims. (See People v. Kipp
(2001) 26 Cal.4th 1100, 1134.)



                                          42
                (d) Defendant’s Refusal to Obey Order
       The evidence showed that defendant and two other inmates had temporarily
refused a prison guard’s order to “get down,” and that one of the three inmates had
said, “Fuck you. We don’t have to get down.” Even assuming such evidence did
not demonstrate criminal activity involving the use or attempted use of force or
violence, or the express or implied threat to use force or violence directed at a
person, any error in its consideration by the jury was undoubtedly harmless. The
evidence was not especially prejudicial, particularly since the guard acknowledged
that the three inmates were not a “direct threat” to him, and the prosecution made
no mention of the incident in its closing argument. In any case, given the properly
admitted evidence of defendant’s cold-blooded murder of Monique and attempted
murder of Robert, his prior armed robberies, and his violent and assaultive conduct
in other prison incidents, there is no reasonable possibility that presentation of this
nonviolent incident affected the verdict. (See People v. Jackson (1996) 13 Cal.4th
1164, 1232 [nonviolent jail escape]; People v. Rodrigues (1994) 8 Cal.4th 1060,
1169-1170 [threat to correctional officer]; Brown, supra, 46 Cal.3d at p. 449 [food
riot, sexual misconduct, and possession of stolen wirecutters in jail].) Having
rejected this state law claim, we likewise reject his derivative federal constitutional
claims.

           7. Alleged Prosecutorial Misconduct During Penalty Retrial Voir Dire
       During voir dire of a panel that included three individuals who ultimately
served as jurors, the prosecutor stated that defendant “sits here having been
convicted of taking the life of another human being himself. That is a verdict that
was rendered by a jury, and you must accept it as true.” (Italics added.) On
appeal, defendant claims the prosecutor committed misconduct by falsely stating
he had been convicted of having personally taken the life of another human being,




                                          43
when the prior jury’s verdict need not have been premised on a conclusion that
defendant was the one who killed Monique.
         “ ‘ “A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the trial court or the jury.” [Citation.] When a claim of
misconduct is based on the prosecutor’s comments before the jury, as all of [the]
defendant’s claims are, “ ‘the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.’ ” [Citation.] To preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and specific objection and
ask the trial court to admonish the jury to disregard the improper argument.
[Citation.]’ [Citation.] A failure to timely object and request an admonition will
be excused if doing either would have been futile, or if an admonition would not
have cured the harm. [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146,
1205.)
         Defendant unsuccessfully objected to the prosecutor’s statement as
“improper voir dire.” The People, however, assert forfeiture of the claim because
he failed to object on the precise ground asserted here.
         Even assuming the claim had been preserved, we find no basis for reversal.
While the prosecutor’s brief comment was misleading as to the guilt findings, the
question of defendant’s precise role in Monique’s murder was left for the penalty
jury to decide. After both sides rested their cases, the trial court specifically
instructed the jury to “determine what facts have been proved from the evidence
received in the trial and not from any other source.” The court emphasized to the

                                          44
jury that it “must not be biased” against defendant because he had been convicted
of this offense, and that such circumstance was not “evidence of what your verdict
must be.” The court also instructed that the attorneys’ statements were not
evidence.14 Consistent with these instructions, the parties based their closing
arguments entirely on the evidence presented, and as relevant here, focused on the
strengths and weaknesses of the prosecution’s theory that defendant personally
shot and killed Monique. The defense urged the jury, without objection from the
prosecution, to consider the concept of lingering doubt and to carefully scrutinize
whether any physical evidence actually supported the prosecution’s theory. Given
these circumstances, there is no reason to think that the prosecutor’s brief
comment during voir dire would have affected the penalty deliberations of the
three jurors who heard it. Thus, the challenged comment did not infect the trial
with unfairness or mislead the jury as to its role in sentencing. (People v. Linton,
supra, 56 Cal.4th at p. 1205.) Nor is there a reasonable likelihood that the jury
applied the remark in an improper or erroneous manner. (Ibid.)
       Finally, defendant contends the challenged comment was part of a pattern
of prosecutorial misconduct, citing six other incidents in which the prosecutor
allegedly acted inappropriately. Defendant raises a separate challenge to one of
these six incidents, which we discuss below. (See pt. II.C.8., post [examination of
Kevin Jackson].) To the extent, however, that defendant challenges the remaining
five incidents as additional examples of prosecutorial misconduct, he has forfeited
review of each of these claims by his failures to object and request admonitions
below. (People v. Linton, supra, 56 Cal.4th at p. 1205.) In any event, none of the

14    We find no merit to defendant’s contention that his inability to cross-
examine the prosecutor about the challenged remark implicated his Sixth
Amendment right to cross-examine the witnesses against him.




                                         45
cited incidents related to the prior jury’s findings, and none affects our conclusion
that the prosecution’s fleeting comment in voir dire did not deprive defendant of a
fair trial.

              8. Alleged Prosecutorial Misconduct During Examination of Kevin
                  Jackson
        During defense counsel’s cross-examination of prosecution witness Kevin
Jackson, counsel impeached Jackson with certain testimony he gave while being
cross-examined previously during the guilt phase. Jackson responded: “I was
allowing you to put words in my mouth then.” When counsel asked if the district
attorney had “put any words into your mouth,” Jackson answered no.
        On redirect examination, the prosecution asked Jackson whether he had
spoken with defense counsel since testifying at the guilt phase. Jackson
responded: “I talked to him I believe Saturday of this month.” In response to
further prosecutorial questioning, Jackson stated he felt defense counsel had tried
to influence his testimony, but was not successful in doing so.15
        On recross-examination, defense counsel asked Jackson: “What did I say
to you to try to influence your testimony?” Jackson responded: “You asked me
if — if I say anything nice about [defendant] would the D.A. pull back the deal
that they have for me. And you asked me was there anything nice that I could say
about [defendant]. You told me that — that [defendant’s] co-defendant had



15      The reporter’s transcript reflects the following interchange between the
prosecutor and Jackson: “[Question:] Did [defense counsel] say anything to you
to try to influence your testimony here? [Answer:] He just asked me a few
questions about testimony I give today. [Question:] I’m not asking you what he
said. I’m just asking you if you felt he was trying to influence your testimony.
[Answer:] Yeah. Yes. [Question:] Did he succeed in influencing your testimony?
[Answer:] No.”




                                         46
confessed to the murder but the D.A. just wanted to put [defendant] away for
murder.”
       In response to the prosecution’s further redirect questioning, Jackson
indicated defense counsel had told him that someone other than defendant had
confessed to Monique’s murder and that defendant was facing the death penalty.
When asked if he thought counsel said such things to influence his testimony,
Jackson answered in the affirmative.16
       During the course of these exchanges, the defense registered no objection to
any of the prosecution’s questions. Subsequently, defense counsel moved for a
mistrial, explaining, “[F]or the prosecutor . . . to put those kind of questions to
Mr. Jackson in front of this jury and have him respond in a positive way I believe
impugns my character, certainly is a cause for concern, or should be a cause of
concern to [defendant] that this jury has now lost faith and credibility in me as his
counsel.” The court denied the mistrial motion, stating, “[I]t appears to the Court
. . . that the character and credibility and ethicality of the defense counsel has not
been impugned.” The court, however, expressed its willingness, “in the event that
[defense counsel] feels that his credibility is in any way impugned, for the Court to
instruct the jury that the credibility . . . of counsel for either side is simply not in
issue, that counsel have a duty to represent their respective positions to the best of
their ability and in any manner ethically proper for them to do, that there has been,
in the opinion of the Court, no indication of any improper tactic or activity on the

16     “[Question:] This defense attorney told you that someone other than
[defendant] confessed to this murder? [Answer:] Yes. [Question:] Do you have
any way of knowing if that’s a lie? [Answer:] No. [Question:] Did you think
that was intended to influence your testimony against [defendant]? [Answer:]
Yes. [Question:] Did he also tell you that [defendant] was facing the death penalty
in an effort to influence you against testifying here? [Answer:] Yes.”




                                            47
part of either counsel, and it shall not and must not enter into their deliberations
. . . .” The defense declined the court’s offer to give a curative instruction.
       Defendant now claims the prosecution committed misconduct in eliciting
testimony from Kevin Jackson regarding his meeting with defense counsel and in
insinuating that counsel had lied during that meeting in order to get Jackson to
change his testimony. Even were we to overlook defendant’s failure to
immediately object to the questioning as it was occurring, we will not disregard
his refusal to accept the trial court’s offer to admonish the jury.
       Contrary to defendant’s claim, a request for an admonishment would not
have been futile because the trial court explicitly stated it was willing to give one.
Moreover, we reject defendant’s contention that the court’s proposed admonition
would have been ineffectual. At worst, the prosecution’s questioning might have
been understood to insinuate that defense counsel had lied to Jackson in an
unethical effort to get him to slant his testimony in defendant’s favor. The
proposed admonition would have addressed that insinuation directly by instructing
the jury that neither counsel had engaged in any improper tactic or activity and
that neither counsel’s credibility was at issue. Because such an admonition would
have been more than sufficient to cure any possible harm caused by the
prosecution’s vague insinuation, defendant’s refusal of the court’s offer renders
the claim of misconduct unreviewable. (People v. Valdez (2004) 32 Cal.4th 73,
124-125; see People v. Linton, supra, 56 Cal.4th at p. 1205.) For the same
reasons, the trial court did not err in denying defendant’s motion for a mistrial.
(Cf. People v. Collins (2010) 49 Cal.4th 175, 198 [“ ‘A mistrial should be granted
if the court is apprised of prejudice that it judges incurable by admonition or
instruction.’ ”].)




                                          48
           9. Failure to Instruct on Meaning of “Personal Use” of a Firearm
       At the outset of the penalty retrial, the clerk read to the jury the verdicts
previously returned by the jury during the guilt phase of the trial. Included among
those verdicts was the jury’s finding that defendant, “in the commission of the
offense charged under Count I of the Information [first degree murder], did
personally use a firearm, to wit, a handgun, within the meaning of Penal Code
Sections 12022.5(a) and 1192.7(c)(8).” Defendant did not ask the court to further
clarify the meaning of this or any other finding.
       Defendant contends the trial court had a duty to instruct the penalty retrial
jury, sua sponte, on the meaning of “personal use” of a firearm, as defined in
CALJIC No. 17.19. (See People v. Mayfield (1997) 14 Cal.4th 668, 773 [“Even in
the absence of a request, a trial court must instruct on general principles of law
that are commonly or closely and openly connected to the facts before the court
and that are necessary for the jury’s understanding of the case.”].) He claims the
jury could have misconstrued the guilt phase jury’s “personal use” finding as a
specific determination that defendant had fired the handgun in the course of
committing the murder, even though the finding could have been based on some
other firearm use by defendant, such as his intentional display of a firearm in a
menacing manner, or his intentional striking or hitting of a human being with it.
(See CALJIC No. 17.19.) Because the previous jury may have found defendant
guilty of murder and found true the robbery-murder special circumstance without
necessarily finding he was the actual shooter, defendant contends a clarifying
instruction was essential to a correct understanding of the personal use finding.
       Defendant misinterprets our precedent regarding a trial court’s sua sponte
duty to instruct the jury on principles of law. Significantly, he fails to cite any
authority requiring a court, at the penalty phase, to instruct sua sponte regarding a
verdict or finding rendered at the guilt phase. Of course, a sua sponte duty to


                                          49
instruct on particular principles of law may arise when the jury itself is called upon
to apply those principles. (E.g., People v. Breverman (1998) 19 Cal.4th 142, 155-
156 [lesser included offenses]; People v. Prettyman (1996) 14 Cal.4th 248, 266-
267 [identification and description of uncharged target offenses under
prosecution’s theory of criminal liability].) But here, the jury’s sole function at
the penalty retrial was to decide whether defendant should be sentenced to death
or to life imprisonment without possibility of parole, and its charge did not include
making a personal use finding. Accordingly, instructions on the meaning of
“personal use” of a firearm, as defined in CALJIC No. 17.19, were not necessary
for the jury’s understanding of the case.
       This conclusion is consistent with the rule that applies when the
prosecution offers evidence in aggravation of a defendant’s violent criminal
activity. “In that context, we have long held that ‘[a] trial court has no sua sponte
duty to instruct on the elements of “other crimes” offered under section 190.3,
factor (b).’ [Citation.] Such instructions are ‘not vital to a proper consideration of
the evidence on the issue of penalty’ [citation] because ‘the ultimate question for
the sentencer is simply whether the aggravating circumstances, as defined by
California’s death penalty law [citation], so substantially outweigh those in
mitigation as to call for the penalty of death, rather than life without parole’
[citation].” (People v. Cottone (2013) 57 Cal.4th 269, 294.) As is often the case
in that context, defense counsel here may reasonably have decided, for tactical
reasons, against overloading the jury with instructions to illuminate the guilt phase
verdict and findings, so that the jury might better focus on the central question of
whether defendant deserved to live or die. (See ibid.)
       To the extent defendant contends the trial court’s failure to explain the
meaning of the guilt phase jury’s personal use finding was federal constitutional
error, such claim also lacks merit. Contrary to defendant’s suggestion, there is no

                                            50
“reasonable likelihood” the penalty retrial jury understood the court’s instructions
(or lack thereof) “in a way that prevent[ed] the consideration of constitutionally
relevant evidence” regarding the shooting of Monique Cleveland. (Boyde v.
California (1990) 494 U.S. 370, 380.) As discussed more fully in part II.C.7, ante,
no one argued or even suggested that the personal use finding constrained the
jury’s ability to consider the evidence presented at the penalty retrial. To the
contrary, both the court and the parties emphasized to the jury that it must make its
own determination, based on the evidence before it, as to whether defendant
personally shot and killed Monique. (Ibid.)
       For similar reasons, the court’s failure to instruct on the meaning of the
guilt phase jury’s personal use finding did not violate due process or render the
penalty retrial fundamentally unfair. (See Estelle v. McGuire (1991) 502 U.S. 62,
72-73.) Even assuming the jury understood the finding in the manner defendant
suggests, defendant was not deprived of a fair proceeding. There is no reason to
think the jury would have given this factor undue weight or any weight at all. As
noted, the court instructed the jury to make its own determination of the facts and
to not be biased against defendant because of his conviction. (See ante, at pt.
II.C.7.) “We presume jurors ‘generally understand and follow instructions.’ ”
(People v. Myles (2012) 53 Cal.4th 1181, 1212.)17


17      Although, as defendant observes, the prosecution did represent in its
opening statement and closing argument that defendant was the one who shot
Monique, it did so entirely on the basis of the evidence presented during the
penalty retrial. The defense countered by poking holes in the prosecution’s theory
of the case, also based on the evidence before the jury. Given the court’s
instructions and the parties’ respective arguments on the matter, there is no danger
that the jury misunderstood its obligation to make its own evaluation of the facts
or that the jury was unfairly influenced by any erroneous understanding of the
previous jury’s factual determinations.




                                         51
           10. Alleged Instructional Error
       Defendant claims the trial court erred in refusing or failing to give a number
of his specially tailored penalty phase instructions. As we have held repeatedly,
“the CALJIC penalty phase instructions ‘ “ ‘are adequate to inform the jurors of
their sentencing responsibilities in compliance with federal and state constitutional
standards.’ [Citation.]” ’ ” (Jones, supra, 54 Cal.4th at p. 74.) Defendant
acknowledges our repeated rejection of claims nearly identical to those he presents
here, but asks us to reconsider our prior holdings. We decline to do so.
       Defendant first argues the trial court erred in refusing to instruct the jury
that it must consider death to be a more serious penalty than a sentence of life in
prison without the possibility of parole. We disagree. Pursuant to CALJIC No.
8.88, the jury was instructed: “To return a judgment of death, each of you must be
persuaded that the aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death instead of life without
parole.” We “repeatedly have held that ‘there is no legal requirement that penalty
phase jurors be instructed that death is the greater punishment, because the penalty
trial itself and the jury instructions given, particularly CALJIC No. 8.88, make
clear that the state views death as the most extreme penalty. [Citations.]’
[Citation.]” (Jones, supra, 54 Cal.4th at p. 81; see People v. Thomas, supra,
52 Cal.4th at pp. 361-362.)
       Defendant next claims the trial court erred in refusing to instruct the jury
that it “must not consider as an aggravating factor the existence of any special
circumstance if you have already considered the facts of the special circumstance
as a circumstance of the crimes for which the defendant had been convicted.”
“When requested, a trial court should provide such an instruction. [Citation.]”
(People v. McKinnon (2011) 52 Cal.4th 610, 694.) But “CALJIC No. 8.85 does
not inherently encourage the jury to ‘double count’ the same facts” (McKinnon, at


                                          52
p. 695), and “ ‘the absence of an instruction cautioning against double counting
does not warrant reversal in the absence of any misleading argument by the
prosecutor’ ” (People v. Young (2005) 34 Cal.4th 1149, 1225-1226). Here, the
prosecution made no such misleading arguments. Therefore, we find “ ‘no
reasonable likelihood that the jury unconstitutionally applied CALJIC No. 8.85.’
[Citation.]” (Jones, supra, 54 Cal.4th at p. 77.)
       Defendant also claims the trial court erred in refusing to give a proposed
instruction informing the jury that its task at the penalty phase differed from that at
the guilt phase, insofar as a penalty phase juror must render an “individualized,
moral determination.” Because this instruction was duplicative of other
instructions given to the jurors — including instructions that they could consider
“any sympathetic or other aspect of the defendant’s character or record” (CALJIC
No. 8.85) and were “free to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider”
(CALJIC No. 8.88) — the trial court did not err. (Jones, supra, 54 Cal.4th at
pp. 74-75; see People v. Butler (2009) 46 Cal.4th 847, 874.)
       Nor did the trial court err in refusing to give defendant’s proposed
instructions defining what sort of evidence could be considered as mitigation. The
first proposed instruction listed evidence the defense had introduced and stated
such evidence could be considered in mitigation. This instruction was properly
denied. Although instructions pinpointing the defense’s legal theories might be
appropriate, a defendant is not entitled to instructions that simply highlight facts
favorable to him. (See People v. Cook (2007) 40 Cal.4th 1334, 1364; People v.
Gutierrez (2002) 28 Cal.4th 1083, 1159.) The other proposed instructions —
which emphasized the unlimited scope of the mitigating factors of which the jury
could take account — “were duplicative of other instructions given, particularly



                                          53
CALJIC Nos. 8.85, factor (k) and 8.88.” (Jones, supra, 54 Cal.4th at p. 82.) The
court did not err in declining to give them. (Id. at pp. 82-83; Cook, at p. 1364.)
       Likewise, the trial court did not err in refusing to instruct the jury that it had
the discretion to return a verdict of life without the possibility of parole regardless
of the evidence presented at the penalty phase. As we have previously held, such
an instruction is not required because CALJIC No. 8.88 adequately conveys this
principle. (See People v. McKinnon, supra, 52 Cal.4th at pp. 695-696.) For the
same reason, the court did not err in failing to instruct sua sponte that if the jury
found that mitigation outweighed aggravation, it must return a verdict of life
without the possibility of parole. (People v. Linton, supra, 56 Cal.4th at p. 1211.)
       The trial court also did not err in refusing to give defendant’s proposed
instruction defining the term “life without the possibility of parole.” “[A]
California penalty jury is instructed that one of the sentencing choices is ‘life
without parole,’ and . . . this is a common phrase requiring no further definition.”
(People v. Whisenhunt (2008) 44 Cal.4th 174, 226.)
       Nor did the court err in declining to give defendant’s proposed instructions
regarding the role that mercy could play in the jury’s determination of defendant’s
sentence. As noted, the jury was instructed that it could consider as mitigating any
“circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime and any sympathetic or other 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” (CALJIC
No. 8.85), and that it was “free to assign whatever moral or sympathetic value you
deem appropriate to each and all of the various factors you are permitted to
consider” (CALJIC No. 8.88). “We repeatedly have held that a trial court need
not give a specific ‘mercy instruction,’ even if requested, when the above quoted



                                           54
instructions are given [citation], and we reaffirm that conclusion here.” (People v.
Hughes (2002) 27 Cal.4th 287, 403.)
       Finally, defendant claims the trial court erred in refusing to give his
proposed instruction on lingering doubt. “Although it is proper for the jury to
consider lingering doubt, there is no requirement, under federal or state law, that
the jury specifically be instructed that it may do so, even if such an instruction is
requested by the defendant.” (Jones, supra, 54 Cal.4th at p. 84, and cases cited.)
Such an instruction was not required here, because the “[i]nstructions to consider
the circumstances of the crime (§ 190.3, factor (a)) and any other circumstance
extenuating the gravity of the crime (id., factor (k)), together with defense
argument highlighting the question of lingering or residual doubt, suffice to
properly put the question before the penalty jury.” (People v. Demetrulias, supra,
39 Cal.4th at p. 42.)

           11. Denial of Application to Modify Verdict
       More than two months after the jury returned a verdict of death, the trial
court denied defendant’s automatic application for modification of the death
sentence. Although defendant contends the denial was improper, he failed to
object below to any aspect of the court’s reasoning in denying the application.
Defendant has therefore forfeited review of this claim. (People v. Zambrano
(2007) 41 Cal.4th 1082, 1183.)
       In any event, defendant’s contentions lack merit. In ruling on an
application for modification of a death verdict, “the judge shall review the
evidence, consider, take into account, and be guided by the aggravating and
mitigating circumstances referred to in Section 190.3, and shall make a
determination as to whether the jury’s findings and verdicts that the aggravating
circumstances outweigh the mitigating circumstances are contrary to law or the



                                          55
evidence presented. The judge shall state on the record the reasons for his
findings.” (§ 190.4, subd. (e).) “ ‘On appeal, we subject a ruling on such an
application to independent review: the decision resolves a mixed question of law
and fact; a determination of this kind is generally examined de novo [citation]. Of
course, when we conduct such scrutiny, we simply review the trial court’s
determination after independently considering the record; we do not make a de
novo determination of penalty.’ [Citations.]” (People v. Carter (2005) 36 Cal.4th
1114, 1211 (Carter).)
       The court’s lengthy statement of reasons demonstrates it understood and
complied with its obligation under section 190.4, subdivision (e). Defendant
contends the court erred in considering in aggravation certain acts of violence
which the court found had not been proved beyond a reasonable doubt. (See
People v. Michaels (2002) 28 Cal.4th 486, 539 [evidence of a defendant’s prior
criminal activity may not be considered as an aggravating factor unless it is proven
“beyond a reasonable doubt that the conduct occurred and constituted a crime”].)
But notably, in describing the evidence of defendant’s violent acts in prison and
jail, the court stated: “The Court is not convinced that the evidence as to these
acts rises to the level of proof beyond a reasonable doubt. Nevertheless,
[defendant] was certainly a ready and willing participant in violent confrontations
in custodial settings and tended to be very much in the ‘thick of things’ in such
activities.” The court’s statements regarding its consideration of these custodial
incidents are somewhat ambiguous and could likely have been clarified had
defendant offered a contemporaneous objection. However, the court’s comments
during the course of its extensive review of the aggravating and mitigating
evidence presented at trial demonstrate there is no reasonable possibility that any
error affected its ruling. (See Carter, supra, 36 Cal.4th at p. 1211.) For the same



                                         56
reason, any asserted federal constitutional error was harmless beyond a reasonable
doubt. (People v. Rogers (2006) 39 Cal.4th 826, 911.)
       Defendant further contends the trial court contravened our holding in
People v. Davenport (1985) 41 Cal.3d 247, 289, by improperly treating the
absence of a mitigating factor as an aggravating factor. We cannot agree. In
discussing potential mitigating evidence of defendant’s capacity to appreciate the
criminality of his conduct (see § 190.3, factor (h)), the court stated: “There was
none. There is no doubt that the defendant was able to and did understand the
criminal wrongfulness of his conduct. Not only that, the defendant bragged the
next day to Kevin Jackson that he had killed the two victims the previous day.”
Nothing in this statement remotely suggests that the court improperly considered
the lack of section 190.3, factor (h) evidence to be aggravating. Instead, the court
plainly concluded that defendant’s ability to appreciate the criminality of his
conduct was not a factor in mitigation, a conclusion it supported by reference to
defendant’s statements to Kevin Jackson.

           12. Lack of Intracase Proportionality
       After the penalty retrial, the trial court denied defendant’s separately filed
motion to bar the death penalty based on state and federal constitutional “intra-
case proportionality principles and in the interest of justice.” Defendant renews
his contentions here.
       “ ‘ “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.] If



                                          57
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.”
[Citation.]’ [Citation.]” (Wallace, supra, 44 Cal.4th at p. 1099.)
       Defendant asserts that, contrary to the evidence presented at his trial, two of
his partners in the underlying crimes, Carl Bishop and Henry Jones, made
statements to investigators suggesting that a fourth individual — Leon West, then
at large — had been the one who had actually shot Monique Cleveland. These
statements, which were not made under oath or subject to cross-examination,
reflected vagueness on Bishop’s part as to whether he actually saw West shoot
Monique,18 as well as an acknowledgement by Jones that he was in a different
room when that shooting occurred. Not only did the trial court find Bishop’s
hearsay statements unreliable, but it remains the case that Kevin Jackson’s trial
testimony established, without contradiction, that defendant had boasted he shot
Monique. In any event, as the court observed, even if defendant were only
vicariously liable for Monique’s murder, he and his three cohorts “were all
together in the criminality that preceded the execution-style killing” of the newly
expecting victim, and defendant himself began the violence by shooting Robert
Cleveland in the face at close range.
       Defendant also contends the extremely difficult childhood he endured
militates against imposition of the death penalty. Although the circumstances of
defendant’s early childhood were difficult and sympathetic, the traumatic events

18     Although Carl Bishop claimed at one point that he “[knew] for a fact” that
Leon West shot the woman, he thereafter stated repeatedly that it was very dark in
the hallway, that he had heard a shot, and that he had seen only a flash in the dark.




                                          58
he experienced occurred nearly 17 years before the instant crimes and do not
render his death sentence unconstitutional. Given the circumstances of
defendant’s participation in the instant crimes and his prior violent criminality,
defendant’s death sentence does not shock the conscience or offend fundamental
notions of human dignity; nor is the sentence grossly disproportionate to his
individual culpability. (Wallace, supra, 44 Cal.4th at p. 1099; see Tison v.
Arizona (1987) 481 U.S. 137, 158 [“major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to satisfy the . . .
culpability requirement” for imposition of capital punishment in felony-murder
cases].)19

             13. Constitutional Challenges to California’s Death Penalty Statute
       Defendant raises a number of challenges to California’s capital sentencing
scheme. We have previously rejected each of defendant’s contentions, and we
adhere to those decisions, as follows.
       Penal Code section 190.2 is not impermissibly broad and adequately
narrows the class of murders for which the death penalty may be imposed. (Jones,
supra, 54 Cal.4th at p. 85; People v. Thomas (2011) 51 Cal.4th 449, 506.) Section
190.3, factor (a), which defines the circumstances of the crime as one of the
factors a jury may consider in determining the appropriate penalty, does not allow
for the arbitrary and capricious imposition of the death penalty. (Jones, supra, at

19     We note defendant also urged the trial court to reduce his sentence on the
ground that the prosecution did not seek the death penalty against the two other
individuals charged with participating in the crimes of violence against the
Clevelands. That contention lacked merit. “[I]ntracase proportionality review is
‘an examination of whether defendant’s death sentence is proportionate to his
individual culpability, irrespective of the punishment imposed on others.’
[Citation.]” (People v. Hill (1992) 3 Cal.4th 959, 1014; see People v. Riel (2000)
22 Cal.4th 1153, 1223.)




                                          59
pp. 85-86; Thomas, at p. 506; People v. Cowan (2010) 50 Cal.4th 401, 508
(Cowan).)
       “ ‘Allowing consideration of unadjudicated criminal activity under [section
190.3,] factor (b) is not unconstitutional and does not render a death sentence
unreliable. [Citations.]’ [Citation.]” (Jones, supra, 54 Cal.4th at p. 87.)
       “The trial court was not constitutionally required to inform the jury that
certain sentencing factors were relevant only in mitigation, and the statutory
instruction to the jury to consider ‘whether or not’ certain mitigating factors were
present did not impermissibly invite the jury to aggravate the sentence upon the
basis of nonexistent or irrational aggravating factors. [Citations.]” (People v.
Morrison (2004) 34 Cal.4th 698, 730; see Jones, supra, 54 Cal.4th at p. 87.)
       “ ‘ “The Eighth and Fourteenth Amendments do not require that a jury
unanimously find the existence of aggravating factors or that it make written
findings regarding aggravating factors.” [Citations.] “[N]either the cruel and
unusual punishment clause of the Eighth Amendment, nor the due process clause
of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt
that aggravating circumstances exist or that aggravating circumstances outweigh
mitigating circumstances or that death is the appropriate penalty. [Citations.]” ’
[Citation.] Moreover, the statute ‘ “is not unconstitutional because it does not
contain a requirement that the jury be given burden of proof or standard of proof
instructions for finding aggravating and mitigating circumstances in reaching a
penalty determination.” ’ [Citation.] . . . Nothing in the United States Supreme
Court’s recent decisions interpreting the Sixth Amendment’s jury trial guarantee
(e.g., Cunningham v. California (2007) 549 U.S. 270; Ring v. Arizona (2002) 536
U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) compels a different
answer to these questions. [Citations.]” (Cowan, supra, 50 Cal.4th at pp. 508-
509; see Jones, supra, 54 Cal.4th at p. 86.)

                                         60
       “There is no violation of the equal protection of the laws as a result of the
statutes’ asserted failure to provide for capital defendants some procedural
guarantees afforded to noncapital defendants.” (People v. Alexander (2010)
49 Cal.4th 846, 938; see People v. Thomas, supra, 51 Cal.4th at p. 507.)
       Contrary to defendant’s contention, intercase proportionality review is not
required by the Eighth Amendment to the federal Constitution. (Jones, supra,
54 Cal.4th at p. 87; People v. Thomas, supra, 51 Cal.4th at p. 506.)
       Finally, “California does not employ the death penalty as a ‘ “regular
punishment for substantial numbers of crimes” ’ [citation], and its imposition does
not violate international norms of decency” or the federal Constitution. (People v.
Clark (2011) 52 Cal.4th 856, 1008; see People v. Blair (2005) 36 Cal.4th 686,
754-755.)

            14. Cumulative Error
       Defendant contends the cumulative prejudicial effect of the errors in both
the guilt and penalty phases of his trial requires reversal of his conviction and
sentence of death. We have rejected the vast majority of defendant’s assignments
of error, and when we have found or assumed error, we have determined
defendant was not prejudiced. Whether such claims are considered separately or
together, we find no prejudicial error at either phase of the proceedings.




                                          61
                               III. DISPOSITION
     The judgment of death is affirmed in its entirety.

                                               BAXTER, J.



WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.




                                       62
          CONCURRING AND DISSENTING OPINION BY LIU, J.

       Four years ago, in People v. Gamache (2010) 48 Cal.4th 347, this court
upheld a death verdict for Richard Gamache despite the fact that the jury, during
its penalty phase deliberations, had inadvertently been allowed to view a videotape
never admitted into evidence. (Id. at pp. 395–403.) The videotape, which the jury
watched two times before sentencing Gamache to death, showed a detailed
confession he had given to the police on the day of the crime. (Id. at pp. 395, 400–
402.) We held that “[i]ntroduction of the . . . videotape into the jury room was
indisputably error.” (Id. at p. 396.) But we went on to conclude that the error was
harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S.
18, 24 (Chapman). (People v. Gamache, at p. 399, fn. 22; id. at p. 403 [“[T]here is
no reasonable possibility Gamache would have received a more favorable outcome
had the . . . videotape not been erroneously placed in the jury room.”].)
       The United States Supreme Court denied review. (See Gamache v.
California (2010) 562 U.S. __ [131 S.Ct. 591] (Gamache).) However, Justice
Sotomayor, joined by Justice Ginsburg, Justice Breyer, and Justice Kagan, filed a
statement respecting the denial of the petition for writ of certiorari. In that
statement, Justice Sotomayor agreed that the error was harmless beyond a
reasonable doubt, but she observed that this court, in reaching that conclusion, had
said, “ ‘[I]n the absence of misconduct, the burden remains with the defendant to
demonstrate prejudice under the usual standard for ordinary trial error.’ 48
Cal.4th, at 397 (emphasis added).” (Id. at p. __ [131 S.Ct. at p. 592].) Justice

                                           1
Sotomayor said: “It is not clear what the court intended in allocating the burden to
the defendant to demonstrate prejudice, but if it meant to convey that the
defendant bore the burden of persuasion, that would contravene Chapman. See
386 U.S., at 24 (noting that the ‘original common-law harmless-error rule put the
burden on the beneficiary of the error either to prove that there was no injury or to
suffer a reversal of his erroneously obtained judgment’); cf. O’Neal v. McAninch,
513 U.S. 432, 438–439 (1995) (describing Chapman as ‘placing the risk of doubt’
about harmlessness on the State).” (Ibid.) The four-justice statement concluded
with a warning: “With all that is at stake in capital cases [citation], in future cases
the California courts should take care to ensure that their burden allocation
conforms to the commands of Chapman.” (Id. at p. __ [131 S.Ct. at p. 593].)
       Today’s decision neglects to heed this warning.
       Defendant Jonathan Jackson was convicted of murder and sentenced to
death while being forced, without lawful justification, to wear a REACT stun belt
throughout his trial. REACT stands for Remote Electronically Activated Control
Technology. Neither this colorless moniker nor anything in today’s opinion
provides an inkling of the power of this electric shock device. Here is how Chief
Justice George, writing for a six-justice majority, described it in People v. Mar
(2002) 28 Cal.4th 1201 (Mar): “ ‘The type of stun belt which is used while a
prisoner is in the courtroom consists of a four-inch-wide elastic band, which is
worn underneath the prisoner’s clothing. This band wraps around the prisoner’s
waist and is secured by a Velcro fastener. The belt is powered by two 9-volt
batteries connected to prongs which are attached to the wearer over the left kidney
region. . . . [¶] The stun belt will deliver an eight-second, 50,000-volt electric
shock if activated by a remote transmitter which is controlled by an attending
officer. The shock contains enough amperage to immobilize a person temporarily
and cause muscular weakness for approximately 30 to 45 minutes. The wearer is
                                           2
generally knocked to the ground by the shock and shakes uncontrollably.
Activation may also cause immediate and uncontrolled defecation and urination,
and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long
as six months to heal. An electrical jolt of this magnitude causes temporary
debilitating pain and may cause some wearers to suffer heartbeat irregularities or
seizures. [Citations.]’ ” (Id. at pp. 1214–1215.)
       An article we quoted in Mar described a brochure of the belt’s
manufacturer, Stun Tech, as follows: “One of the great advantages, the company
says, is its capacity to humiliate the wearer. ‘After all, if you were wearing a
contraption around your waist that by the mere push of a button in someone else’s
hand could make you defecate or urinate yourself,’ the brochure asks, ‘what would
that do to you from the psychological standpoint?’ And if the shock ever has to be
administered? ‘One word —,’ brags the brochure, ‘DEVASTATION!’ ” (Schulz,
Cruel and Unusual Punishment (Apr. 24, 1997) 44 N.Y. Review of Books 51, 51;
see Mar, supra, 28 Cal.4th at p. 1227, fn. 8.) The Indiana Supreme Court has
banned the use of stun belts in the courtrooms of that state altogether, concluding
that other forms of restraint “can do the job without inflicting the mental anguish
that results from simply wearing the stun belt and the physical pain that results if
the belt is activated.” (Wrinkles v. State (Ind. 2001) 749 N.E.2d 1179, 1195.)
       While mindful that trial judges must have broad discretion to deal with
“disruptive, contumacious, stubbornly defiant defendants” (Illinois v. Allen (1970)
397 U.S. 337, 343), we observed in Mar that the use of a stun belt to maintain
control over the accused during trial “has not been without problems or
controversy.” (Mar, supra, 28 Cal.4th at p. 1205.) The belt has been abused, as
when one California trial judge ordered a defendant to be shocked for verbally
interrupting her. (Id. at p. 1223, fn. 6, citing Hawkins v. Comparet-Cassani (9th
Cir. 2001) 251 F.3d 1230.) There have been “a disturbing number of accidental
                                          3
activations,” including at least one instance in a California courtroom “resulting in
the defendant’s hospitalization.” (Mar, at pp. 1228, 1229, fn. 9.) Most
importantly, the “ ‘ “total psychological supremacy” ’ ” that the stun belt is
designed to achieve “may impair the defendant’s ability to think clearly,
concentrate on the testimony, communicate with counsel at trial, and maintain a
positive demeanor before the jury.” (Id. at p. 1226.)
       Against this backdrop, the court today concludes that any error in requiring
defendant to wear a stun belt throughout this capital trial was harmless beyond a
reasonable doubt. I respectfully disagree with this conclusion and, in particular,
with two aspects of the court’s reasoning.
       First, even though it is undisputed by the parties that the trial court erred in
forcing defendant to wear the stun belt, today’s opinion resolves defendant’s claim
on the basis of harmless error without actually finding that the trial court erred.
The court instead offers the vague locution that “[i]n light of the People’s
concession at oral argument that the trial court erred under Mar, supra, 28 Cal.4th
1201, we proceed directly to the issue of prejudice.” (Maj. opn., ante, at p. 19.)
Does this mean the court accepts the Attorney General’s concession on the merits?
Or does it mean the court is merely assuming error, as we often do, in order to
resolve the issue on harmless error grounds? The court does not say. By tiptoeing
around the issue, today’s opinion fails to confront the seriousness of the error and
may be read to suggest that there is some question as to whether error occurred at
all — even though, as both parties recognize and as I explain herein, the error in
this case is at least as apparent as similar errors in other cases finding inadequate
justification for physical restraints during trial. The court’s refusal to find error on
this record sows unnecessary doubt about the stringent standards that govern the
use of restraints in the courtroom.


                                           4
       Second, the court concludes that “the People have satisfied their burden
under Chapman, supra, 386 U.S. 18, to show that any federal errors are harmless
beyond a reasonable doubt.” (Maj. opn., ante, at p. 25.) I agree the error was
harmless at the guilt phase, but I cannot agree it was harmless at the penalty
retrial. Wearing a stun belt carries a substantial risk of altering a defendant’s
demeanor, and a defendant’s demeanor is often one of the most important
considerations for the jury in deciding whether a capital defendant deserves to live
or die. (See Riggins v. Nevada (1992) 504 U.S. 127, 143–144 (Riggins) (conc.
opn. of Kennedy, J.).) As discussed below, the record here provides reason to
worry about this risk. Moreover, the penalty determination in this case was a close
issue. The first jury, which saw and heard the entirety of the guilt phase evidence,
hung at the penalty phase, with nine jurors willing to go either way and one or two
jurors opposed to death. The second jury was empaneled only for the penalty
retrial. We cannot say with any confidence what verdict it would have reached
absent the stun belt error.
       Today’s ruling simply cannot be squared with Chapman’s principle that the
burden lies with “the beneficiary of a constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.” (Chapman, supra, 386 U.S. at p. 24.) The court holds that “reversal of
a judgment is unwarranted when the record on appeal is devoid of evidence that
the unjustified use of . . . a stun belt had any adverse effect.” (Maj. opn., ante, at
p. 14.) But under Chapman, reversal is unwarranted not when the record is devoid
of evidence that the error had an adverse effect, but only when the state has shown
beyond a reasonable doubt that the error did not have an adverse effect. Today’s
opinion effectively puts the burden on defendant to demonstrate that the erroneous
use of the stun belt was prejudicial. The court even goes so far as to supply, on the
state’s behalf, an argument for harmless error that the state itself never made. (See
                                           5
post, at pp. 40–41.) In essence, the court inverts Chapman’s burden allocation in
the very manner that four justices of the high court warned against in Gamache.
(See Gamache, supra, 562 U.S. at p. __ [131 S.Ct. at p. 593] (statement of
Sotomayor, J.).) At most, the court’s analysis of the record in this case establishes
that it is uncertain whether defendant was prejudiced at the penalty retrial, not that
the state has shown beyond a reasonable doubt that defendant was not prejudiced.
To conclude otherwise, as the court does, confirms that “the allocation of the
burden of proving harmlessness can be outcome determinative in some cases.”
(Id. at p. __ [131 S.Ct. at p. 593].)
       To observers of this court, it is no mystery that harmless error doctrine has
played a major role in the outcomes of California capital appeals. Unfortunately,
today’s decision is not unique in our jurisprudence; it is only the most recent
instance in which this court has misapplied Chapman. (See post, at pp. 45–48.)
Here, a man was unlawfully forced to have a 50,000-volt electric shock device
strapped around his waist while a jury sat in judgment as to whether he should live
or die for his crimes. It is reasonably possible that the stun belt adversely affected
his demeanor, and we cannot know what decision the jury would have made
absent this error. Because the court’s refusal to find prejudicial error in this case
erodes the applicable standards for both error and prejudice, I respectfully dissent.
                                          I.
       When used for courtroom security, a stun belt “ ‘is worn underneath the
prisoner’s clothing’ ” (Mar, supra, 28 Cal.4th at p. 1214), so it may be presumed
to be out of the jury’s sight. Nevertheless, the legal standards governing the use of
stun belts have their origins in concerns applicable to the use of visible restraints
such as shackles. I begin by reviewing the development of those standards in state
and federal law, and then apply them to the facts of this case.


                                           6
                                           A.
       “A trial court has broad power to maintain courtroom security and orderly
proceedings.” (People v. Hayes (1999) 21 Cal.4th 1211, 1269; see Illinois v.
Allen, supra, 397 U.S. at p. 343.) But this power is not unlimited. The
constitutional prohibition on forcing a criminal defendant to wear visible physical
restraints during trial without special justification “has deep roots in the common
law.” (Deck v. Missouri (2005) 544 U.S. 622, 626 (Deck) [citing Blackstone and
other early authorities]; see People v. Duran (1976) 16 Cal.3d 282, 288 (Duran)
[same].) Although originally motivated by concern for the physical suffering
caused by chains or other restraints, the constitutional rule today reflects “three
fundamental legal principles.” (Deck, at p. 630.)
       “First, the criminal process presumes that the defendant is innocent until
proved guilty. [Citation.] Visible shackling undermines the presumption of
innocence and the related fairness of the factfinding process.” (Deck, supra, 544
U.S. at p. 630.) “Second, the Constitution, in order to help the accused secure a
meaningful defense, provides him with a right to counsel. [Citations.] The use of
physical restraints diminishes that right. Shackles can interfere with the accused’s
‘ability to communicate’ with his lawyer. [Citation.] Indeed, they can interfere
with a defendant’s ability to participate in his own defense . . . .” (Id. at p. 631.)
“Third, judges must seek to maintain a judicial process that is a dignified process.
The courtroom’s formal dignity, which includes the respectful treatment of
defendants, reflects the importance of the matter at issue, guilt or innocence, and
the gravity with which Americans consider any deprivation of an individual’s
liberty through criminal punishment. And it reflects a seriousness of purpose that
helps to explain the judicial system’s power to inspire the confidence and to affect
the behavior of a general public whose demands for justice our courts seek to


                                           7
serve. The routine use of shackles in the presence of juries would undermine these
symbolic yet concrete objectives.” (Ibid.)
       The first concern, the presumption of innocence, is not a factor during the
penalty phase of a capital case. But in light of the second and third concerns,
along with “the ‘ “severity” ’ and ‘ “finality” ’ of the sanction” and “the ‘acute
need’ for reliable decisionmaking when the death penalty is at issue,” courts may
not place defendants in visible restraints during either the penalty phase or the
guilt phase of a capital trial without a “case specific” determination that “reflect[s]
particular concerns, say, special security needs or escape risks, related to the
defendant on trial.” (Deck, supra, 544 U.S. at pp. 632–633.)
                                             1.
       Consistent with Deck, California case law has long recognized limitations
on the use of physical restraints on criminal defendants during trial. (See Mar,
supra, 28 Cal.4th at pp. 1216–1218.) In People v. Harrington (1871) 42 Cal. 165
(Harrington), this court said that “any order or action of the Court which, without
evident necessity, imposes physical burdens, pains and restraints upon a prisoner
during the progress of his trial, inevitably tends to confuse and embarrass his
mental faculties, and thereby materially to abridge and prejudicially affect his
constitutional right of defense . . . .” (Id. at p. 168.) There, finding “no pretense of
necessity for the manacles and chains upon the defendants during their trial,” we
reversed the convictions. (Id. at p. 169.)
       In Duran, we declared “our continued adherence to the Harrington rule” in
light of the “possible prejudice in the minds of the jurors, the affront to human
dignity, the disrespect for the entire judicial system which is incident to
unjustifiable use of physical restraints, as well as the effect such restraints have
upon a defendant’s decision to take the stand.” (Duran, supra, 16 Cal.3d at
p. 290.) Duran “reaffirm[ed] the rule that a defendant cannot be subjected to
                                             8
physical restraints of any kind in the courtroom while in the jury’s presence,
unless there is a showing of a manifest need for such restraints.” (Id. at pp. 290–
291, fn. omitted.) We further concluded that “in any case where physical
restraints are used those restraints should be as unobtrusive as possible, although
as effective as necessary under the circumstances.” (Id. at p. 291.)
       Duran went on to specify that “[t]he showing of nonconforming behavior
in support of the court’s determination to impose physical restraints must appear
as a matter of record, and, except where the defendant engages in threatening or
violent conduct in the presence of the jurors, must otherwise be made out of the
jury’s presence. The imposition of physical restraints in the absence of a record
showing of violence or a threat of violence or other nonconforming conduct will
be deemed to constitute an abuse of discretion.” (Duran, supra, 16 Cal.3d at
p. 291.) Applying these principles in Duran, we found an abuse of discretion:
“No reasons for shackling the defendant appear on the record. There is no
showing that defendant threatened to escape or behaved violently before coming
to court or while in court. The fact that defendant was a state prison inmate who
had been convicted of robbery and was charged with a violent crime did not,
without more, justify the use of physical restraints.” (Id. at p. 293.)
       In subsequent cases, we have emphasized that in deciding whether to
impose restraints, “the court is obligated to base its determination on facts, not
rumor and innuendo.” (People v. Cox (1991) 53 Cal.3d 618, 652 (Cox); see ibid.
[finding shackling unwarranted where the record “does not contain a single
substantiation of violence or the threat of violence on the part of the accused”].)
We have also stressed that “it is the trial court, not law enforcement personnel, that
must make the decision an accused be physically restrained in the courtroom. A
trial court abuses its discretion if it abdicates this decisionmaking authority to
security personnel or law enforcement. [Citations.]” (People v. Hill (1998) 17
                                           9
Cal.4th 800, 841, fn. omitted (Hill); see id. at p. 842 [finding shackling unjustified
where the trial court “deferred to the sheriff’s department’s decision that shackles
were necessary” and “fail[ed] to determine independently whether, in its view,
there existed a manifest need to place defendant in restraints”].) Likewise, “ ‘[t]he
imposition of restraints in a proper case is normally a judicial function in which
the prosecutor plays no necessary part. . . . [I]t is the function of the court, not the
prosecutor, to initiate whatever procedures the court deems sufficient in order that
it might make a due process determination of record that restraints are necessary.’
(Duran, supra, 16 Cal.3d at p. 293, fn. 12.)” (Id. at pp. 841–842.)
       In Mar, we had our “first occasion . . . to address the use of a stun belt in
courtrooms in California.” (Mar, supra, 28 Cal.4th at p. 1205.) Because “the stun
belt posed an imminent risk of both serious injury and humiliation,” we held that
the principles set forth in Duran governing the use of visible restraints apply
equally to the use of a stun belt worn underneath a defendant’s clothing. (Mar, at
p. 1219.) We explained: “In light of the nature of the device and its effect upon
the wearer when activated, requiring an unwilling defendant to wear a stun belt
during trial may have significant psychological consequences that may impair a
defendant’s capacity to concentrate on the events of the trial, interfere with the
defendant’s ability to assist his or her counsel, and adversely affect his or her
demeanor in the presence of the jury. In addition, past cases both in California
and in other jurisdictions disclose that in a troubling number of instances the stun
belt has activated accidentally, inflicting a potentially injurious high-voltage
electric shock on a defendant without any justification. The potential for
accidental activation provides a strong reason to proceed with great caution in
approving the use of this device.” (Id. at p. 1205.) Accordingly, we concluded
that a defendant may not be forced to wear a stun belt unless there is an on-the-
record showing of manifest need based on the trial court’s own determination of
                                           10
the facts and independent judgment under the circumstances. (Id. at pp. 1219–
1223.) Because “the trial court [in Mar] never made, nor purported to make, a
finding or determination that there was a ‘manifest need’ to impose the stun belt
upon defendant because he posed a serious security threat in the courtroom,” we
found an abuse of discretion. (Id. at p. 1222; see ibid. [use of the stun belt resulted
from an “apparently unilateral decision” by the bailiff or jail officials].)
       We recently summarized the governing principles for use of a stun belt as
follows: “(1) there must be a showing of manifest need for the stun belt; (2) the
defendant’s threatening or violent conduct must be established as a matter of
record; and (3) it is the function of the court to initiate whatever procedures it
deems necessary to make a determination on the record that the stun belt is
necessary. The court must make an independent determination based on facts, not
rumor or innuendo, and must not merely rely on the judgment of jail or court
security personnel. [Citations.]” (People v. Howard (2010) 51 Cal.4th 15, 28
(Howard).) Although the trial in the case now before us predates Mar, we said in
Mar and in subsequent cases that the manifest need standard for use of a stun belt
applies to trials conducted before Mar. (Mar, supra, 28 Cal.4th at pp. 1222–1223;
see, e.g., People v. Virgil (2011) 51 Cal.4th 1210, 1270–1271; People v. Lomax
(2010) 49 Cal.4th 530, 561; People v. Gamache, supra, 48 Cal.4th at pp. 366–
367.) For trials conducted after Mar, the requirements are even more stringent, as
trial courts must take into account several additional considerations specific to
stun belts before forcing a defendant to wear one. (See Mar, at pp. 1226–1230.)
                                             2.
       In light of Mar, the standards governing the use of a stun belt during trial
are settled as a matter of California law. The issue is not entirely settled, however,
as a matter of federal constitutional law.


                                             11
       Many courts have adopted federal constitutional standards similar to those
we set forth in Mar. In United States v. Durham (11th Cir. 2002) 287 F.3d 1297
(Durham), the court observed that “stun belts plainly pose many of the same
constitutional concerns as do other physical restraints, though in somewhat
different ways.” (Id. at p. 1306.) First, a stun belt “seemingly poses a far more
substantial risk of interfering with a defendant’s Sixth Amendment right to confer
with counsel than do leg shackles. The fear of receiving a painful and humiliating
shock for any gesture that could be perceived as threatening likely chills a
defendant’s inclination to make any movements during trial — including those
movements necessary for effective communication with counsel.” (Id. at p. 1305.)
Second, a stun belt could have an “adverse impact” on a “defendant’s Sixth
Amendment and due process rights to be present at trial and to participate in his
defense. Wearing a stun belt is a considerable impediment to a defendant’s ability
to follow the proceedings and take an active interest in the presentation of his case.
It is reasonable to assume that much of a defendant’s focus and attention when
wearing one of these devices is occupied by anxiety over the possible triggering of
the belt. A defendant is likely to concentrate on doing everything he can to
prevent the belt from being activated, and is thus less likely to participate fully in
his defense at trial.” (Id. at pp. 1305–1306, fn. omitted.) Finally, “stun belts have
the potential to be highly detrimental to the dignified administration of criminal
justice. . . . Shackles are a minor threat to the dignity of the courtroom when
compared with the discharge of a stun belt, which could cause the defendant to
lose control of his limbs, collapse to the floor, and defecate on himself.” (Id. at
p. 1306.) The Eleventh Circuit adopted substantive and procedural standards
almost identical to those we established in Mar and held that the district court in
Durham “abused its discretion” in ordering a stun belt because it “did not, on the
record, consider any less restrictive alternatives” and did not articulate “on the
                                          12
record” a “rationale for imposing this highly intrusive method of restraint.”
(Durham, at p. 1308; see id. at p. 1312 (conc. opn. of Tjoflat, J.).)
       A number of other jurisdictions, applying federal constitutional law, have
reached similar results. (See United States v. Wardell (10th Cir. 2009) 591 F.3d
1279, 1293–1294 [holding that “ ‘[t]he use of stun belts, depending somewhat on
their method of deployment, raises all of the traditional concerns about the
imposition of physical restraints’ ” and that a district court must make “a
defendant-specific determination of necessity resulting from security concerns”];
Wrinkles v. Buss (7th Cir. 2008) 537 F.3d 804, 813–815 [finding defense counsel’s
failure to object to stun belt where there was no “individualized justification” for
imposing it to be deficient performance under first prong of Strickland v.
Washington (1984) 466 U.S. 668]; United States v. Miller (6th Cir. 2008) 531 F.3d
340, 344–346 (Miller) [holding that district court erred “[b]y deferring to the
Marshals’ judgment” instead of making “individualized determinations or specific
findings” to justify use of stun belt]; Gonzalez v. Pliler (9th Cir. 2003) 341 F.3d
897, 901–902 (Gonzalez) [finding stun belt error where the “decision was
apparently made by the bailiff, not the trial judge,” the record was devoid of
evidence that the defendant posed a security problem, and the trial court failed to
consider less restrictive alternatives]; Mobley v. State (Tenn. 2013) 397 S.W.3d
70, 101 [requiring “particularized findings” that include “whether there is a less
onerous but adequate means of providing security”]; Illinois v. Allen (Ill. 2006)
856 N.E.2d 349, 353–354 (Allen) [holding that “the use of electronic stun belts in
the courts of this state is warranted only where there has been a showing of
manifest need for the restraint” and finding that the trial court erred because “it
simply deferred to the judgment of the sheriff”]; Hymon v. Nevada (Nev. 2005)
111 P.3d 1092, 1098–1099 [adopting the standards of Durham, Gonzalez, and Mar
as a matter of federal constitutional law]; Weaver v. State (Fla. 2004) 894 So.2d
                                          13
178, 195 [stun belt must be “reasonably necessary to ensure order and safety in the
courtroom,” and trial court must consider whether “alternative forms of restraint
. . . are less prejudicial or viable”].)
       Notwithstanding this substantial body of authority, the United States
Supreme Court has yet to provide definitive guidance on the use of stun belts, and
as a consequence, a number of courts have upheld their use under less stringent
standards on habeas or plain error review (see, e.g., Earhart v. Konteh (6th Cir.
2009) 589 F.3d 337, 349; United States v. Fields (5th Cir. 2007) 483 F.3d 313,
356–357; Mungo v. United States (D.C. 2010) 987 A.2d 1145, 1149–1150; State v.
Bowen (Ore. 2006) 135 P.3d 272, 279; Reynolds v. State (Ala.Crim.App. 2010)
114 So.3d 61, 82) or as a matter of state law (see State v. Benson (Ariz. 2013) 307
P.3d 19, 28; Young v. State (Ga. 1998) 499 S.E.2d 60, 61). The high court last
considered the issue of physical restraints during trial almost a decade ago in
Deck, supra, 544 U.S. 622, which set forth rigorous standards for the use of visible
restraints. Since then, courts have divided on the applicability of Deck to a stun
belt worn underneath a defendant’s clothing and shielded from the jury’s view.
(Compare Miller, supra, 531 F.3d at p. 345 [concluding on plain error review that
a concealed stun belt raises the “ ‘same fundamental issues’ ” as those considered
in Deck] and Allen, supra, 856 N.E.2d at p. 352 [“the Deck Court’s stated reasons
which prompt due process scrutiny in visible restraint cases . . . may be applied
with like force to stun belts which are not necessarily visible to the jury”] with
Mungo, supra, 987 A.2d at pp. 1149–1150 [concluding on plain error review that
Deck does not entail that “a stun belt qualifies as a type of physical restraint whose
use is subject to [Deck’s] strictures” or that “on-the-record findings are required
before stun belts may be used”] and Benson, supra, 307 P.3d at pp. 28–29
[distinguishing Deck where “the record reflects that the stun belt . . . [was] not
visible to the jury”].) For the reasons stated in Durham and Mar, the better view is
                                           14
that a requirement of individualized on-the-record justification applies not only to
visible restraints but also to stun belts as a matter of federal constitutional law.
                                           B.
       In this case, two trial judges entered two separate orders requiring
defendant to wear a stun belt: the first for the duration of the guilt phase and the
first penalty phase, and the second for the penalty phase retrial. On appeal,
defendant contends that each order violated his rights under the California
Constitution and the United States Constitution. The record clearly indicates that
neither order was supported by a proper finding of manifest need.
                                           1.
       Before the guilt phase, defendant submitted a motion objecting to physical
shackling. In response, the prosecutor requested a stun belt as an alternative to
shackling, arguing that a stun belt was not a physical restraint within the meaning
of Duran. (See People v. Garcia (1977) 56 Cal.App.4th 1349, 1356 (Garcia),
disapproved by Mar, supra, 28 Cal.4th at p. 1219.) At a hearing on March 30,
1999, the prosecutor said, “I feel very strongly about this defendant having a react
belt during this trial.” The trial court inquired whether defendant’s objection
would apply to a stun belt. Defense counsel replied, “My position would be that
Mr. Jackson has demonstrated his ability to be responsible in the courtroom and
that we don’t need anything.”
       The court then ruled as follows: “I tell you what we will do, if we have two
deputies[,] and they try to give two deputies on murder cases, we will not have the
react belt. . . . I have evidence in the Statement of Aggravation that [defendant]
did make a threat, he has engaged in violence in custody, and there is some — I
don’t have a clear record of it but there is certainly hints from the probation report
that he had when he was in [the California Youth Authority] and there is also
information apparently from the CDC 115s that he has posed some threat to other
                                           15
people. [¶] And it seems to me in a courtroom context if things don’t go the right
way there might be a problem with him. . . . [¶] I think you ought to tell the
sergeant it would be my strong preference to have a second deputy sitting back
there so we can avoid this problem. Tell them if it’s not, then I will have a react
belt, and it’s my understanding you have to have a second deputy then anyway.”
The courtroom deputy confirmed that if the court ordered defendant to wear the
stun belt, a second deputy would be provided to monitor the belt. The court then
told the deputy, “Tell the sergeant if you can, please, that if he forces me to order
the react belt in order to get a second deputy here I will do that.”
         The prosecutor objected to the court’s ruling on the ground that “there is
really no showing required for a react belt, because it’s not a restraint. It’s been
held they are not even a restraint on the defendant.” The court nevertheless
confirmed its decision, commenting: “If there is [sic] problems going on with
intimidation of witnesses or something else is occurring we will deal with it at that
point. But at this point, given Deputy Young’s confidence that he can handle the
situation with a second deputy, I think it would be inappropriate to have the react
belt.”
         The trial court continued to explain its reasoning, stating: “This is not an
easy case . . . to make a decision on because I have allegations — of course, I am
at somewhat of a loss because these things haven’t been proved, but I think I have
to assume from the starting point that there may be some basis for these things.”
The court continued: “Sure he isn’t causing a problem now because he is always
handcuffed and dressed in orange . . . . [H]e is in a situation where he really can’t
cause much problems. [¶] On the other hand, . . . I haven’t had a problem with
him in court. He has been cooperative. He hasn’t mouthed off in any way. And
the cases are clear that if I could avoid shackling him or handcuffing him or
anything like that I should do that. So I don’t intend to do that.”
                                           16
       Finally, the court restated its decision: “[W]hat I’m going to do is call
Captain Moreland, who is the person over in the jail, and tell him that I need to
have a second deputy, if you can’t provide it I will need to order the react belt,
which then will require a second deputy because there is always a deputy that
monitors the react belt.”
       A week later, on April 6, 1999, the court announced that defendant would
be required to wear a stun belt for the duration of trial. The court explained, “I
could not be assured of a second officer without having the REACT Belt.”
       On this record, it is clear that the trial court’s order was an abuse of
discretion. The trial court made no determination that the stun belt was necessary
for courtroom security. While noting that defendant “has engaged in violence in
custody,” the court acknowledged that there was no “clear record” defendant
posed a security threat, that defendant “has been cooperative” and “hasn’t
mouthed off in any way,” that “I haven’t had a problem with him in court,” and
that the contrary indications consisted of “allegations” that “haven’t been proved.”
Moreover, the court said “it would be inappropriate to have the react belt” in light
of its judgment that any threat posed by defendant could be handled by the
presence of a second deputy in the courtroom. The trial court ultimately decided
to order the stun belt not because it had made a finding that the belt was necessary
to restrain defendant, but because it “could not be assured of a second officer
without having the REACT Belt.” As a result, defendant was guarded by two
deputies and forced to wear a stun belt during trial.
       When ordering restraints, “[a] trial court abuses its discretion if it abdicates
[its] decisionmaking authority to security personnel or law enforcement.” (Hill,
supra, 17 Cal.4th at p. 841; see Miller, supra, 531 F.3d at pp. 344–346; Gonzalez,
341 F.3d at pp. 901–902; Allen, supra, 856 N.E.2d at pp. 353–354.) From this
principle, it follows that a trial court abuses its discretion when it permits such
                                          17
personnel to make their presence contingent on the court’s decision to order the
use of restraints. It is well established that “a court should impose the least
restrictive measure that will satisfy the court’s legitimate security concerns.”
(Mar, supra, 28 Cal.4th at p. 1206; see Durham, supra, 287 F.3d at p. 1308.)
Here, the trial court determined that having a second officer in the courtroom
would have been adequate. Because the court’s decision to order the stun belt was
driven by the sheriff’s department’s staffing policy rather than by any finding of
manifest need, it was an abuse of discretion.
                                          2.
       Before the penalty retrial, defendant was again ordered to wear a stun belt,
this time by a second judge who had just begun to preside over the case. At a
hearing on October 21, 1999, the prosecutor initiated discussion of the issue and
asked the court to order “[t]he zapping belt, the react belt.” In response, the court
observed, “I’ve been informed that there was a need for such by the sheriff’s
department and my deputy.” At that point, defense counsel said: “Well, I would
object to the belt, not only as I believe it’s unnecessary, but it’s extremely
uncomfortable for the defendant. I would ask that the Court use the leg brace on
him. It fits underneath the clothing. I think that’s ample restriction on his
movement and more than an adequate means of securing him in this courtroom.
He hasn’t done anything in the past to exhibit any kind of unruly behavior or any
disrespect to the Court or any staff. I just think it’s unnecessary.”
       The court responded: “It’s my understanding that although there has not
been any issue in the courtroom, there has been sufficient issues out of the
courtroom that give rise to considerable concern for the safety of the public and
the safety of deputies who would be called upon to attend to the security of the
defendant and the people in attendance. . . . Unfortunately, my bailiff who
brought the subject to me originally is not with us this morning.” The court
                                          18
continued: “He knew something of the background of the defendant, and I didn’t
ask him to go into any detail when he broached the subject the day before
yesterday.”
       The prosecutor proceeded to argue, as she had at the guilt phase, that a stun
belt was unlike other physical restraints and that the court was not required to
make any special finding before ordering defendant to wear it. When the trial
court said it was not aware that the belt had been uncomfortable to wear, defense
counsel responded: “The trial days are long, and what my concern is is that the
belt is uncomfortable. It’s a large object that’s placed on the kidney area, the liver
area on his back. It makes it difficult to sit back. And I believe that because of the
fact this is [sic] capital case, every caution and concern should be made to protect
the rights of the defendant. I’m worried about any unconscious grimacing or
exhibitions of discomfort that Mr. Jackson might make that might be misconstrued
by the jury as a reaction to witness testimony or anything like that. But we did in
the last trial try to alleviate that discomfort by giving him a pillow to kind of even
out the back so when he sat back, he wouldn’t be putting all the pressure onto that
react unit that’s strapped to him. That caused a little bit of relief, but I don’t think
significant.”
       The court then said: “[F]rom the little I’ve seen, it appears that the
defendant is sufficiently violent that it’s not a matter of we’re concerned about so
much his escape, which would be the subject of the leg restraint . . . .” The court
continued: “[H]ere we’re concerned about the violent nature of his responses to
people in authority. And that just is not sufficiently addressed by a leg brace. . . .
It will not keep him from attacking members of the public or the attachés and his
own counsel . . . . [¶] . . . I’m not about to have this [be] a matter of something
that we wish we would have done in retrospect which would have avoided some
serious injury.”
                                           19
       Finally, after observing that there was no reason to shackle defendant if the
stun belt was an available alternative, the court ruled as follows: “[S]ince the
Court is opposed to shackling and since the Court feels that the leg brace is, in the
opinion of the Court, insufficient to secure the safety of the public, the attachés
and so on, counsel, from violent attacks by the defendant, the use of the react belt
is approved . . . .”
       This order was also an abuse of discretion. The information on which the
second trial judge relied was precisely the sort that case law has found insufficient.
In raising a safety concern, the trial court made reference to “sufficient issues out
of the courtroom” and “the violent nature of [defendant’s] responses to people in
authority” without ever identifying what the specific issues or incidents were.
Further, rather than “mak[ing] its own determination of the ‘manifest need’ for the
use of such restraint,” the trial court “rel[ied] solely on the judgment of jail or
court security personnel in sanctioning the use of such restraints.” (Mar, supra, 28
Cal.4th at p. 1218.) The court acknowledged that “there has not been any issue in
the courtroom” and did not point to any on-the-record evidence that defendant
posed a security threat during trial. Instead, the trial court relied on unidentified
information it had been told in off-the-record conversations with the sheriff’s
department and the bailiff. By the court’s own account, those conversations were
not in-depth; the bailiff “knew something of the background of the defendant,” but
the court “didn’t ask him to go into any detail.” (See Cox, supra, 53 Cal.3d at
p. 652 [“the court is obligated to base its determination on facts, not rumor and
innuendo”].) In sum, the record does not “demonstrate that the trial court
independently determined on the basis of an on-the-record showing of defendant’s
nonconforming conduct that ‘there existed a manifest need to place defendant in
restraints.’ ” (Mar, supra, 28 Cal.4th at p. 1218; see Durham, supra, 287 F.3d at


                                           20
p. 1308.) Thus, I would conclude that the trial court erred under state and federal
law in forcing defendant to wear a stun belt during the penalty retrial.
                                           3.
       Today’s opinion neither agrees nor disagrees with the analysis above. The
court simply says: “In light of the People’s concession at oral argument that the
trial court erred under Mar, supra, 28 Cal.4th 1201, we proceed directly to the
issue of prejudice.” (Maj. opn., ante, at p. 19.) I am not sure what this sentence is
supposed to mean, but it certainly leaves the reader with the impression that the
court, by refusing to say it accepts the Attorney General’s concession, is not fully
convinced that use of the stun belt was error.
       Although it is not rare for our court to decline to resolve an issue on the
merits when it can be resolved on the basis of harmless error, this practice is
typically reserved for issues that present a close question, where the risk of an
incorrect ruling or unintended consequences may counsel restraint. In this case,
the trial court’s errors in ordering the stun belt are no less obvious than the similar
errors found in Mar, Durham, Miller, Gonzalez, and Allen. (See ante, at pp. 11–
14.) Indeed, after reciting defendant’s arguments on this issue (maj. opn., ante, at
pp. 18–19), today’s opinion does not even bother to state any counterarguments,
for there are none that could withstand scrutiny under well-established law. Any
hesitation the court may have about finding error is simply unexplained. The
court’s refusal to find error under these circumstances sows unnecessary doubt
about the rigorous standards that govern the use of restraints in the courtroom.
Even if this were unintended, the upshot remains that a violation of the right to be
free of unjustified restraints during trial has gone unrecognized. We should not
allow due process of law to be silently eroded in this way.




                                          21
                                           II.
       I agree with today’s decision that the stun belt was not prejudicial at the
guilt phase because the belt’s potential effect on defendant’s demeanor was not
relevant to the jury’s determination of the objective facts comprising his crimes
and because defendant does not contend he would have testified or otherwise
aided his defense at the guilt phase had the court not ordered the belt. However, I
cannot agree that the stun belt error was harmless beyond a reasonable doubt at the
penalty retrial, where it is reasonably possible that the stun belt adversely affected
defendant’s demeanor in a way that contributed to the jury’s verdict. In reaching a
contrary result, the court effectively assigns to defendant the burden of proving
that the error was prejudicial, thereby inverting Chapman’s requirement that the
state demonstrate lack of prejudice beyond a reasonable doubt. (Chapman, supra,
386 U.S. at p. 24; see Gamache, supra, 562 U.S. at p. __ [131 S.Ct. at p. 593]
(statement of Sotomayor, J.).) This case illustrates that the conceptual and
institutional difficulties inherent to harmless error analysis call for strict adherence
to established legal standards in assessing prejudice, especially when it comes to
errors in the penalty phase of a capital trial.
                                           A.
       To illuminate what is problematic about today’s decision, I begin by
bringing into focus the nature of harmless error analysis and the importance of the
legal standards that guide it.
       At bottom, harmless error inquiry mediates a basic tension in the law. On
one hand, few if any trials are entirely free from error, and an appellate court
would impair the basic functioning of the criminal justice system if it were to
reverse a conviction whenever some slight misstep occurred. This is a lesson
learned from experience. Until the beginning of the last century, a rule of near-
automatic reversal prevailed in criminal matters such that, “ ‘as one trial judge put
                                           22
it . . . [,] courts of review ‘tower[ed] above the trials of criminal cases as
impregnable citadels of technicality.’ ” (Kotteakos v. United States (1946) 328
U.S. 750, 759.) As a result, “criminal trials became a game for sowing reversible
error in the record, only to have repeated the same matching of wits when a new
trial had been thus obtained.” (Ibid.) It was in response to such problems that
many jurisdictions, including California, adopted measures to limit reversals of
judgments only to cases where substantial errors had occurred. (Id. at pp. 759–
760; see Cal. Const., art. VI, § 16; People v. O’Bryan (1913) 165 Cal. 55, 63–66.)
       On the other hand, an appellate court runs two related risks when it
evaluates the effect of an error to determine whether it warrants reversal. First, to
say that a conviction may stand in spite of underlying error is at odds with the
norm of legality that justifies the state’s imposition of criminal punishment in the
first place. A declaration that an error is harmless is, in essence, a conclusion that
even though a legal right has been violated, there will be no remedy for that
violation. As former D.C. Circuit Chief Judge Harry Edwards has put it, “each
time we employ the imaginary tonic of harmless error, we erode an important legal
principle. When we hold errors harmless, the rights of individuals, both
constitutional and otherwise, go unenforced.” (Edwards, To Err Is Human, But
Not Always Harmless: When Should Legal Error Be Tolerated? (1995) 70 N.Y.U.
L.Rev. 1167, 1170 (Edwards).) Divorcing legal rights from remedies in this
fashion may encourage, or at least fail to discourage, future violations by
undermining the “deterrent force of a reversal.” (Ibid.)
       Second, when an appellate court engages in harmless error inquiry, it risks
invading the province of the jury. A court trying to determine what would have
happened in a counterfactual proceeding in which the error at issue did not occur
may end up, consciously or not, conducting an inquiry into a defendant’s guilt or
innocence, a question that our system of justice reserves for the jury. (See
                                           23
Apprendi v. New Jersey (2000) 530 U.S. 466, 476–484; Sullivan v. Louisiana
(1993) 508 U.S. 275, 280.) The risk of an appellate court usurping the jury’s role
becomes especially great when harmless error analysis focuses not on whether
error might have affected the jury’s decisionmaking, but on whether there was
overwhelming evidence to support the result. As Chief Justice Traynor explained,
“It is one thing for an appellate court to determine that a verdict was or was not
affected by error. It is quite another for an appellate court to become in effect a
second jury to determine whether the defendant is guilty.” (Traynor, The Riddle
of Harmless Error (1970) p. 21 (Traynor); see Neder v. United States (1999) 527
U.S. 1, 31–32 (conc. & dis. opn. of Scalia, J.); Sullivan, at p. 28; Edwards, supra,
70 N.Y.U. L.Rev. at pp. 1185–1199; Field, Assessing the Harmlessness of Federal
Constitutional Error — A Process in Need of a Rationale (1976) 125 U. Pa.
L.Rev. 15.)
       These two risks arise in unique and potentially troubling ways when a
reviewing court assesses the prejudicial impact of errors in the penalty phase of a
capital trial. To state the obvious, it is no small thing for a court of law to affirm a
sentence of death while holding that the defendant’s legal rights were violated in
the sentencing proceeding. This court has recognized as much in holding that an
exacting “reasonable possibility” standard of harmless error review — which is
“ ‘the same, in substance and effect,’ as the harmless-beyond-a-reasonable-doubt
standard of Chapman” — specially applies when evaluating any error that occurs
during the penalty phase of a capital trial. (People v. Cowan (2010) 50 Cal.4th
401, 491; see People v. Gonzalez (2006) 38 Cal.4th 932, 961; People v. Ashmus
(1991) 54 Cal.3d 932, 990; People v. Brown (1988) 46 Cal.3d 432, 448 (Brown).)
Our less stringent “reasonable probability” standard applicable to ordinary state
law errors (People v. Watson (1956) 46 Cal.2d 818, 837) is “simply insufficient to
ensure ‘reliability in the determination that death is the appropriate punishment in
                                           24
a specific case.’ ” (Brown, at p. 448; see Deck, supra, 544 U.S. at p. 632 [“The
Court has stressed the ‘acute need’ for reliable decisionmaking when the death
penalty is at issue.”].)
       Moreover, we have long “recognized a fundamental difference between
review of a jury’s objective guilt phase verdict, and its normative, discretionary
penalty phase determination” in a capital trial. (Brown, supra, 46 Cal.3d at
p. 447.) The nature of the task assigned to the jury at the penalty phase of a capital
trial makes it particularly difficult to analyze identified error for harmlessness. “A
capital penalty jury . . . is charged with a responsibility different in kind from . . .
guilt phase decisions: its role is not merely to find facts, but also — and most
important — to render an individualized, normative determination about the
penalty appropriate for the particular defendant . . . .” (Id. at p. 448; see Woodson
v. North Carolina (1976) 428 U.S. 280.) In light of the jury’s “vast discretion” in
making this decision and the endless variety of factors that may affect its judgment
(Brown, at p. 447), a counterfactual assessment of whether an error did not
influence the jury can be “extremely speculative or impossible.” (Clemons v.
Mississippi (1990) 494 U.S. 738, 754; cf. Traynor, supra, at p. 73 [“[A]n appellate
court cannot possibly determine what factors influenced a jury to impose the death
penalty. Any error, unless it related only to the proof of some fact otherwise
indisputably established, might have tipped the scales against the defendant.”];
Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine
Misunderstood and Misapplied (1995) 28 Ga. L.Rev. 125, 126, 149–150.) It bears
emphasis that “this court is [not] entitled legally to make the determination of
whether appellant is to live or be put to death. The determination of what penalty
shall be imposed rests exclusively with the jury.” (People v. Hamilton (1963) 60
Cal.2d 105, 138; cf. Ring v. Arizona (2002) 536 U.S. 584, 614 (conc. opn. of


                                           25
Breyer, J.) [“the Eighth Amendment requires that a jury, not a judge, make the
decision to sentence a defendant to death”].)
                                          B.
       There is no easy solution for navigating these tensions either in the mine
run of harmless error cases or in cases involving error in the penalty phase of a
capital trial. But appellate courts can mitigate the risks associated with harmless
error review by complying strictly with the standards established by law to guide
such review. Rigorous adherence to these standards serves to maintain the crucial
role of appellate review in promoting adherence to the law, to restrain reviewing
courts from invading the province of the jury, and to preserve jury verdicts that
may be deemed untainted by error based on disciplined application of a legally
specified confidence level rather than an appellate judge’s ad hoc intuitions of
guilt, innocence, or just punishment.
       As today’s opinion acknowledges, the Chapman harmless error standard
applies to defendant’s federal constitutional claims. (Maj. opn., ante, at p. 25.)
Chapman has two principal features. First, a finding of harmless error requires a
showing “beyond a reasonable doubt” that the error did not affect the jury’s
verdict. (Chapman, supra, 386 U.S. at p. 24.) The reasonable doubt standard has
long been understood to indicate “the very high level of probability required by
the Constitution” to deprive an individual of life or liberty. (Victor v. Nebraska
(1994) 511 U.S. 1, 14.) The requirement is not one of absolute certainty. (See id.
at p. 17 [“A fanciful doubt is not a reasonable doubt.”]; Pen. Code, § 1096
[reasonable doubt “ ‘is not a mere possible doubt’ ”].) But the standard is, and is
intended to be, very stringent; it is not satisfied so long as there is a doubt “based
upon ‘reason.’ ” (Jackson v. Virginia (1979) 443 U.S. 307, 317.) The stringency
of the standard reflects not only its protective function but also its amenability to
principled application. Under Chapman, a reviewing court need not calibrate its
                                          26
certitude to some vaguely specified probability; instead, the court must be
convinced the error was harmless to the maximal level of certainty within the
realm of reason, a level that admits no reasonable doubt.
       Second, the burden of proving beyond a reasonable doubt that the error did
not affect the jury’s verdict lies with “the beneficiary of the error,” namely, the
state. (Chapman, supra, 386 U.S. at p. 24; see Deck, supra, 544 U.S. at p. 635;
United States v. Dominguez Benitez (2004) 542 U.S. 74, 81, fn. 7; Arizona v.
Fulminante (1991) 499 U.S. 279, 295–296; Satterwhite v. Texas (1988) 486 U.S.
249, 256.) Under Chapman, it is not the defendant’s burden to show that the error
did have adverse effects; it is the state’s burden to show that the error did not have
adverse effects. Because it may be difficult to determine whether a particular error
contributed to the jury’s verdict given the counterfactual nature of the inquiry, “the
allocation of the burden of proving harmlessness can be outcome determinative in
some cases.” (Gamache, 562 U.S. at p. __ [131 S.Ct. at p. 593] (statement of
Sotomayor, J.).)
       The significance of this burden allocation has been confirmed by high court
precedent since Chapman. In Riggins, the high court reversed a capital conviction
where the defendant was unconstitutionally forced to take antipsychotic drugs
during the course of his trial. (Riggins, supra, 504 U.S. at p. 138.) In deciding
that the error was prejudicial, the high court made no finding that the medication
actually affected the defendant’s outward appearance, testimony, ability to follow
the proceedings, or communication with counsel; the court simply said such
effects were “clearly possible.” (Id. at p. 137.) While acknowledging that “the
precise consequences of forcing antipsychotic medication upon Riggins cannot be
shown from a trial transcript,” the high court held that Riggins need not
“demonstrate how the trial would have proceeded differently” in order to prevail.
(Ibid.) Riggins reversed the conviction upon observing that “[e]fforts to prove or
                                          27
disprove actual prejudice from the record before us would be futile, and guesses
whether the outcome of the trial might have been different if [the defendant had
not been unlawfully medicated] would be purely speculative.” (Ibid.)
       The high court’s decision in O’Neal v. McAninch (1995) 513 U.S. 432
(O’Neal) likewise underscores that the state bears the burden of demonstrating the
absence of prejudice and that this burden allocation can be dispositive. In O’Neal,
the defendant had been convicted in state court of murder and other crimes, but the
Sixth Circuit on habeas review held that the trial court had given a misleading jury
instruction in violation of the Constitution. The question before the high court was
whether an error may be deemed harmless in “the special circumstance in which
record review leaves the conscientious judge in grave doubt about the likely effect
of an error on the jury’s verdict. (By ‘grave doubt,’ we mean that, in the judge’s
mind, the matter is so evenly balanced that he feels himself in virtual equipoise as
to the harmlessness of the error.)” (Id. at p. 435.) O’Neal held that in such cases
“the petitioner must win” (id. at p. 437), relying significantly on Chapman’s rule
that “ ‘constitutional error . . . casts on someone other than the person prejudiced
by it a burden to show that it was harmless’ ” (id. at p. 438, quoting Chapman,
supra, 386 U.S. at p. 24). O’Neal thus confirms that an error cannot be found
harmless under Chapman even when a reviewing court is not convinced but is
genuinely unsure that there is a reasonable possibility that the error affected the
verdict. The burden is on the state, not the defendant, to dispel the uncertainty.
                                          C.
       In the present case, a straightforward application of Chapman leads to the
conclusion that the death judgment must be reversed. Not only did defendant
expressly complain about the stun belt; the record also gives rise to reasonable
concern about the belt’s effect on defendant’s demeanor, an important
consideration for the jury in a capital penalty proceeding. Further, the
                                          28
prosecution’s case for death at the penalty retrial was not overwhelming, and the
first penalty phase, which set forth no less persuasive a case for death, resulted in a
hung jury. These considerations are more than sufficient to prevent us from
concluding beyond a reasonable doubt that the stun belt error did not affect the
penalty verdict.
       As context for examining the particulars of this case, it bears mention that
less than five years ago, in People v. Stevens (2009) 47 Cal.4th 625 (Stevens), we
described the use of stun belts for purposes of courtroom security as an
“exceptional practice[]” that is “inherently prejudicial.” (Id. at pp. 632, 644.)
Stevens held that “the stationing of a courtroom deputy next to a testifying
defendant is not an inherently prejudicial practice that must be justified by a
showing of manifest need.” (Id. at p. 629.) In reaching this conclusion, we drew a
contrast between the presence of security officers in the courtroom and “visible
shackling, stun belts, or other affronts to human dignity” that are “[i]nherently
prejudicial practices.” (Id. at p. 644.) In this context, the term “inherently
prejudicial” does not mean that erroneous use of a physical restraint requires
automatic reversal. But it does mean that the use of a stun belt carries a
“substantial risk of prejudice” and “an inordinate risk of infringing upon a criminal
defendant’s right to a fair trial.” (Id. at p. 632; accord, Durham, supra, 287 F.3d at
p. 1305.) This substantial risk of prejudice underscores the heavy burden the state
must meet to demonstrate that the stun belt error was harmless beyond a
reasonable doubt.
       As we said in Mar, “requiring an unwilling defendant to wear a stun belt
during trial may have significant psychological consequences that may . . .
adversely affect his or her demeanor in the presence of the jury.” (Mar, supra, 28
Cal.4th at p. 1205.) This concern is borne out in the record here. From the
beginning, defendant repeatedly complained about the stun belt. On April 6, 1999,
                                          29
when defendant was first fitted with the device at the guilt phase, defense counsel
observed that it prevented his client from leaning back and that “it’s going to be
very uncomfortable.” Defendant said, “It’s punching up in my side.” Defendant
was also worried about setting off the belt inadvertently. As the attending deputy
stated in the course of trying to reposition the device, “I think he’s concerned it’s
going to activate it, but just by leaning on it, it won’t activate it.” The deputy said
that “[t]he belt is designed to be worn around the waist tightly” and that according
to the belt’s instructions, “[i]t needs to be near the kidney.” Eventually, defendant
was fitted with a pillow to cushion the belt, and he said, “That’s a little better.”
Still, defendant continued to complain about the tightness of the belt, and the trial
court observed, “It really is bulky. I can see how it would be uncomfortable.”
       Defense counsel reiterated these concerns on October 21, 1999 before the
penalty phase retrial, stating: “Well, I would object to the belt, not only as I
believe it’s unnecessary, but it’s extremely uncomfortable for the defendant.”
When the trial judge (who was new to the case) said, “I have not been aware . . .
that there has been that much of an uncomfortable feeling for the defendant by
reason of the react belt,” defense counsel pushed back and expressed concern
about the stun belt’s potential effect on defendant’s demeanor: “The trial days are
long, and what my concern is is that the belt is uncomfortable. It’s a large object
that’s placed on the kidney area, the liver area on his back. It makes it difficult to
sit back. . . . I’m worried about any unconscious grimacing or exhibitions of
discomfort that Mr. Jackson might make that might be misconstrued by the jury as
a reaction to witness testimony or anything like that. But we did in the last trial try
to alleviate that discomfort by giving him a pillow to kind of even out the back so
when he sat back, he wouldn’t be putting all the pressure onto that react unit that’s
strapped to him. That caused a little bit of relief, but I don’t think significant.”


                                          30
       In addition to defense counsel’s statement, the record elsewhere reveals
reasonable grounds for concern that the stun belt may have “impair[ed] the
defendant’s ability to . . . maintain a positive demeanor before the jury.” (Mar,
supra, 28 Cal.4th at p. 1226.) On May 20, 1999, during the first penalty phase, the
defense moved to preclude the prosecution from commenting on defendant’s
courtroom demeanor. In granting the motion, the trial court said: “The only real
issue is lack of emotion at this point.” Today’s opinion says this observation “read
in context” reflects no concern related to the belt. (Maj. opn., ante, at p. 21.) But
when one reads the full transcript, one finds nothing to suggest that defendant’s
lack of emotion was, as the court speculates, merely an impassive response to the
testimony of the prosecution’s witnesses rather than a foreseeable effect of
wearing the stun belt. It is hardly unreasonable to think that lack of emotion may
be one effect of being forced to wear an electric shock device that is susceptible to
accidental activation and designed to achieve “ ‘ “total psychological
supremacy” ’ ” through the threat of “ ‘debilitating pain.’ ” (Mar, at pp. 1215,
1226.) I suspect most people, with such a device strapped around the waist, would
sit as still and impassively as they possibly could in order to avoid activating it. (I
would hesitate to even sneeze.)
       The possibility of prejudice resulting from modification of a defendant’s
demeanor during a capital sentencing proceeding is not insignificant. “As any trial
attorney will attest, serious prejudice could result if [an extraneous influence]
inhibits the defendant’s capacity to react and respond to the proceedings and to
demonstrate remorse or compassion. The prejudice can be acute during the
sentencing phase of the proceedings, when the sentencer must attempt to know the
heart and mind of the offender and judge his character, his contrition or its
absence, and his future dangerousness. In a capital sentencing proceeding,
assessments of character and remorse may carry great weight and, perhaps, be
                                          31
determinative of whether the offender lives or dies.” (Riggins, supra, 504 U.S. at
pp. 143–144 (conc. opn. of Kennedy, J.); see Sundby, The Capital Jury and
Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty
(1998) 83 Cornell L.Rev. 1557.) Our own cases have repeatedly held that a
defendant’s courtroom demeanor is relevant to the jury’s determination of the
defendant’s character in the penalty phase of a capital trial. (See People v.
Valencia (2008) 43 Cal.4th 268, 307–308 [collecting cases].) And we have said it
is not improper for a trial court to observe that “ ‘[t]he defendant was emotionally
calm during the entire trial’ ” in denying a motion to modify a death verdict
because “[a] defendant’s demeanor may reflect remorse, or otherwise arouse
sympathy in either jury or judge,” and is therefore “relevant” to the sentencing
decision. (People v. Williams (1988) 44 Cal.3d 883, 970, fn. 50, 971–972.)
       The stun belt’s effect on defendant’s demeanor may have been especially
significant at one crucial point during the penalty retrial. On November 17, 1999,
the prosecution alerted the court that defendant had engaged in some “verbal and
non-verbal communication” with members of his family. The court advised
defendant that “the bailiff will take actions if you do it again.” Defendant could
have reasonably interpreted this statement as a warning that the bailiff would
activate the stun belt if defendant were to engage in any further verbal or
nonverbal communication with his family. Immediately following this exchange,
defendant’s mother testified. It is reasonable to believe that the jury would have
found it particularly off-putting if defendant had remained expressionless while his
mother recounted the extensive emotional, physical, and sexual abuse she had
suffered in front of defendant, as well as the beatings that defendant had suffered
in trying to protect her. As defense counsel observed in closing argument, the
mother’s testimony caused defendant’s brother Antione, a Gulf War veteran, to
“run from the courtroom crying.” If there was one moment in the penalty phase
                                         32
when the jury might have expected defendant to visibly demonstrate his capacity
for empathy or compassion, it was during his mother’s testimony — right after the
trial court had warned him that “the bailiff will take actions” if he engaged in any
verbal or nonverbal communication with members of his family.
       Finally, the weakness of the prosecution’s case for death makes it even
more reasonable to believe that the stun belt error may have affected the jury’s
verdict. The most significant and objective indicator of that weakness is the fact
that the first penalty phase jury found the case to be very close and was ultimately
unable to reach a verdict. A jury’s inability to reach a verdict is often indicative of
weakness in the prosecution’s case and probative of an error’s prejudicial effect.
(See, e.g., Kyles v. Whitley (1995) 514 U.S. 419, 554; Krulewitch v. United States
(1949) 336 U.S. 440, 445; Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041,
1056, fn. 18; United States v. Beckman (8th Cir. 2000) 222 F.3d 512, 525; United
States v. Tubol (2d Cir. 1999) 191 F.3d 88, 97; People v. Figueroa (1986) 41
Cal.3d 714, 722; People v. Ross (2007) 155 Cal.App.4th 1033, 1055; People v.
Lee (2005) 131 Cal.App.4th 1413, 1430.) The first jury expressly confirmed that
the penalty decision was close in a note it sent to the trial court on May 27, 1999
shortly before the court declared a mistrial. That note indicated there were nine
jurors who believed the issue was close enough that they were willing to go either
way and one or two jurors who were firmly against imposing death.
       Although the murder of Monique Cleveland (Monique) may well be the
kind of crime worthy of a death sentence, the first jury’s hesitation to impose
death suggests it may have been unsure whether defendant was the one who
actually shot Monique. (Cf. Enmund v. Florida (1982) 458 U.S. 782, 794 [noting
juries’ reluctance to impose the death penalty “for accomplice liability in felony
murders”].) No one who testified at the trial had witnessed Monique’s murder.
Two of the prosecution’s main witnesses, Kevin Jackson and Donald Profit,
                                          33
testified that defendant said he shot Monique, but neither was present at the crime.
The third main witness, Robert Cleveland (Robert), “began losing consciousness
and was only vaguely aware of hearing additional gunshots” after he had been
shot. (Maj. opn., ante, at p. 4.) Further, both Robert’s testimony and Kevin
Jackson’s indicated that one or more of defendant’s confederates had entered the
Clevelands’ house before Monique was shot. The first jury’s uncertainty is
reflected in another note it sent to the trial court on May 27, 1999, asking about the
role that lingering doubt could play in its deliberations. In light of the evidence
presented, it is reasonable to suspect that the jury had lingering doubt as to
whether defendant shot Monique, an issue that was irrelevant at the guilt phase but
obviously relevant at the penalty phase.
       The evidence at the penalty retrial did not present a more compelling case
for death. If anything, the prosecution’s case was weaker. The first jury heard
three versions of the crimes — one from Donald Profit, another from Kevin
Jackson, and a third from Robert Cleveland, a surviving victim who had suffered
gunshot injuries to his face, upper back, and abdomen. The second jury heard
only Kevin Jackson’s testimony. In addition to being a convicted felon and an
admitted drug dealer, Kevin Jackson was not present at the shooting and, to the
jury’s knowledge, was testifying pursuant to a deal with the prosecution. His
testimony was based on a story defendant had told him while they smoked
marijuana together a few days after the shooting.
       There was little new evidence at the penalty retrial. The prosecution
submitted a redacted autopsy photograph of a one-month-old embryo found in
Monique’s womb. The photograph is rather clinical and “is neither gory nor
particularly disturbing.” (Maj. opn., ante, at p. 37.) The prosecution also put on
testimony by Correctional Sergeant Vern Nichols, who described an incident in
which defendant and two other inmates refused an officer’s order to “get down.”
                                           34
“One of the three inmates told the officer, ‘Fuck you. We don’t have to get
down,’ but Nichols was not sure whether it had been defendant.” (Id. at p. 8.)
This evidence “was not especially prejudicial, particularly since the guard
acknowledged that the three inmates were not a ‘direct threat’ to him, and the
prosecution made no mention of the incident in its closing argument.” (Id. at
p. 42.) Finally, the prosecution put on testimony by Officer Damon Aoki, who,
after arresting defendant, heard defendant say he would have shot Aoki “if he had
had a gun.” Although this statement was admissible to show defendant’s
consciousness of guilt (id. at p. 31), defendant’s guilt was not in doubt. Officer
Aoki’s testimony thus had limited value at the penalty retrial. (See id. at p. 31
[“Despite presenting this testimony to the jury, the prosecution made no mention
of it during closing arguments.”].)
       The witnesses for the defense, meanwhile, expanded on the testimony they
had given in the first penalty phase. Defendant’s brother Antione added that their
mother had abused them when they were children. Defendant’s mother added that
she had forced defendant to participate in a gang-related fight and that she had
been raped in front of him on multiple occasions. It was during this powerful
testimony by defendant’s mother — testimony that the jury might reasonably have
expected to elicit an emotional response from defendant — that the trial court’s
error in forcing defendant to wear the stun belt may have been most prejudicial.
       In sum, there is a reasonable possibility that the unlawful use of the stun
belt adversely affected defendant’s demeanor and in turn influenced the jury’s
decision to impose death. On this record, I am unable to conclude that the stun
belt error was harmless beyond a reasonable doubt.
                                         D.
       The court today holds otherwise based on a different reading of the record.
Its harmless error analysis consists of three contentions: First, any time defendant
                                         35
complained about the stun belt, his complaints were adequately addressed.
Second, any time defendant was not complaining about the stun belt, we must
infer that the stun belt did not adversely affect him. Third, the record affirmatively
demonstrates the absence of prejudice. None of these contentions withstands
scrutiny.
       As to the first, the court would have us believe that the pillow provided to
defendant and the adjustments made to the placement and tightness of the stun belt
on defendant’s body were sufficient to address his complaints at the start of the
guilt phase and again at the start of the penalty retrial. (Maj. opn., ante, at pp. 20,
23.) But this rendition is belied by statements at the penalty retrial that the court
simply ignores, statements informed by defendant’s actual experience of wearing
the belt throughout the guilt phase and first penalty phase. (See ante, at pp. 18–19,
30.) I quote them again here: On October 21, 1999, defense counsel objected to
the stun belt at the penalty retrial, saying “it’s extremely uncomfortable for the
defendant.” When the trial court said, “I have not been aware . . . that there has
been that much of an uncomfortable feeling for the defendant by reason of the
react belt,” defense counsel pressed the point: “The trial days are long, and what
my concern is is that the belt is uncomfortable. It’s a large object that’s placed on
the kidney area, the liver area on his back. It makes it difficult to sit back. . . . But
we did in the last trial try to alleviate that discomfort by giving him a pillow to
kind of even out the back so when he sat back, he wouldn’t be putting all the
pressure onto that react unit that’s strapped to him. That caused a little bit of
relief, but I don’t think significant.” The trial court again provided defendant with
a pillow but took no other steps to address defendant’s complaints. Thus,
defendant was no better off during the penalty retrial than he had been during the
guilt phase and first penalty trial — as defense counsel put it, “extremely
uncomfortable.”
                                           36
       Further, the court discounts the attending deputy’s observation on April 6,
1999 that defendant was worried about accidental activation (“I think he’s
concerned [leaning back is] going to activate it”). The court says that “the defense
offered no indication that defendant actually had this worry” and that
“[t]hroughout the duration of both trials, the defense never once stated or
suggested that the threat of electric shock affected defendant’s mental state or that
the belt caused him to experience mental stress or impairment.” (Maj. opn., ante,
at p. 20.) Apparently the court would have us believe that the deputy’s
observation of defendant’s concern about accidental activation lacks reasonable
credibility because defendant did not state the concern himself or through counsel.
If common sense were not enough to refute this suggestion, one need only consult
our opinion in Mar, where we prominently discussed the risk of accidental
activation not once, not twice, not thrice, but six different times as “a strong reason
to proceed with great caution in approving the use of this device.” (Mar, supra, 28
Cal.4th at p. 1205; see id. at pp. 1206, 1219, 1226, 1228–1229; see also Durham,
supra, 287 F.3d at p. 1306 [“It is reasonable to assume that much of a defendant’s
focus and attention when wearing one of these devices is occupied by anxiety over
the possible triggering of the belt. A defendant is likely to concentrate on doing
everything he can to prevent the belt from being activated, and is thus less likely to
participate fully in his defense at trial.”].)
       The court’s treatment of defendant’s concern about accidental activation is
symptomatic of its second thesis, that silence equals acquiescence for purposes of
harmless error analysis. The court assigns great significance to the fact that “the
defense made no mention at either trial of the stun belt’s potential or actual effects
on defendant’s mental state” and to defendant’s “complete failure to mention the
stun belt or its effects in any of his various motions for a mistrial, a new guilt trial,
and a new penalty trial.” (Maj. opn., ante, at p. 23.) But why would we expect
                                            37
defendant to have continued complaining about the effects of the belt after his
objections to wearing it had proven fruitless? By the time defendant was forced to
wear the belt during the penalty retrial, the trial court had already rebuffed his
objections twice — the second time notwithstanding defense counsel’s statement
that it had been “extremely uncomfortable” for defendant to wear the belt
throughout the guilt phase and first penalty phase. Perhaps defendant believed,
reasonably, that he had already made a sufficient record. Perhaps defendant
believed, reasonably, that under the only authority at the time (see Garcia, supra,
56 Cal.App.4th at p. 1356, disapproved by Mar, supra, 28 Cal.4th at p. 1219),
there was no point in complaining further.
       Further, the court says the record provides no indication that defendant’s
lack of emotion resulted from wearing the stun belt or that he feared activation of
the stun belt when the trial court warned, right before his mother’s testimony, that
“the bailiff will take actions” if he engaged in verbal or nonverbal communication
with his family. (Maj. opn., ante, at p. 21.) But these possibilities are surely
reasonable. They are no less reasonable than the court’s own conjectures that the
stun belt did not contribute to defendant’s lack of emotion and that defendant did
not construe the trial court’s warning as a reference to the stun belt.
       More fundamentally, the court’s one-sided inferences from silence in the
record effectively place the burden on defendant to have made a record
demonstrating prejudice from the stun belt error. Indeed, the court says as much
when it declares that “reversal of a judgment is unwarranted when the record on
appeal is devoid of evidence that the unjustified use of . . . a stun belt had any
adverse effect.” (Maj. opn., ante, at p. 14.) That is plainly not the law. In
Riggins, the dissent argued that the defendant was not legally incompetent and that
“[t]he record does not reveal any other form of unfairness relating to the purported
side effects of [the forced medication]. Riggins has failed to allege specific facts
                                          38
to support his claim that he could not participate effectively in his defense. He has
not stated how he would have directed his counsel to examine or cross-examine
witnesses differently. He has not identified any testimony or instructions that he
did not understand. The record, moreover, does not even support his assertion that
[the medication] made him worse off.” (Riggins, supra, 504 U.S. at pp. 149–150
(dis. opn. of Thomas, J.).) But the high court in Riggins disclaimed any need for
the defendant to prove “actual prejudice” and reversed the conviction on the
ground that prejudice was “clearly possible.” (Id. at p. 137.)
       Similarly, in Mar, we said “[i]t is not explicitly apparent from the transcript
of the proceedings what effect the stun belt had on the content of defendant’s
testimony or on his demeanor while testifying.” (Mar, supra, 28 Cal.4th at
p. 1213.) The record showed only that the defendant was “nervous while
testifying,” which “is, of course, not unusual for a defendant, or any witness,” and
that defendant at one point expressed concern about accidental activation. (Id. at
p. 1224; see id. at p. 1232 (dis. opn. of Brown, J.).) Yet, in reversing the
conviction, we said that “in view of the nature of a stun belt and the debilitating
and humiliating consequences that such a belt can inflict,” “it is reasonable to
conclude that defendant’s being required to wear the stun belt had at least some
effect on his demeanor while testifying.” (Id. at pp. 1224–1225.)
       The Eleventh Circuit in Durham likewise found prejudicial stun belt error
on a record that contained only nonspecific assertions by defense counsel that
wearing the belt would induce “ ‘extreme fear’ ” that “chills the exercise of the
defendant’s trial rights, including altering his outward appearance and affecting
his decision whether or not to testify, his ability to follow the proceedings, the
substance of his communication with counsel, and his ability to actively cooperate
with and assist counsel.’ ” (Durham, supra, 287 F.3d at pp. 1310–1311 (conc.
opn. of Tjoflat, J.).) Nothing in the record indicated that any of these concerns
                                          39
actually came to pass during the trial. Yet the court reversed the conviction
because “[t]he government ha[d] not demonstrated that Durham’s defense was not
harmed by” the stun belt. (Id. at p. 1309.) Applying Chapman, the court said it is
not “sufficient for the government to argue that the defendant cannot name any
outcome-determinative issues or arguments that would have been raised had he
been able to participate at trial. Not only does such an argument impermissibly
transfer the burden of proof back to the defendant, but it also would eviscerate the
right in all cases where there is strong proof of guilt.” (Ibid.)
       As Riggins, Mar, and Durham illustrate, silence in the record with respect
to actual prejudice does not dispel a reasonable possibility of prejudice, especially
when the error is one that carries a “substantial risk” of prejudice. (Durham,
supra, 287 F.3d at p. 1305; Stevens, supra, 47 Cal.4th at p. 632.) To say that
“reversal of a judgment is unwarranted when the record on appeal is devoid of
evidence that the [error] had any adverse effect” (maj. opn., ante, at p. 14) is to
effectively place the burden on defendant to demonstrate actual prejudice. In this
respect, today’s opinion contravenes Chapman.
       The court’s third and last resort is its remarkable claim that the record
“affirmatively demonstrat[es] the assessment of defense counsel that the jurors’
consideration of defendant’s courtroom demeanor would have a favorable effect
on their penalty determination.” (Maj. opn., ante, at p. 22.) According to the
court, this assessment may be inferred from defense counsel’s insistence on two
special jury instructions proposed in a May 25, 1999 filing at the first penalty trial
and again in a November 18, 1999 filing at the second penalty trial. Here is what
the two proposed instructions say: (1) “PROPOSED PENALTY PHASE
INSTRUCTION NO. 10 [¶] Mitigating factors are not necessarily limited to those
adduced from specific evidence offered at the sentencing hearing such as character
testimony. A juror might be disposed to grant mercy based on other factors, such
                                          40
as a humane perception of the developed during trial.” (2) “PROPOSED
PENALTY PHASE INSTRUCTION NO. 11 [¶] If a mitigating circumstance or
an aspect of the defendant’s background or his character called to the attention of
the jury by the evidence or its observation of the defendant arouses mercy,
sympathy, empathy, or compassion such as to persuade you that death is not the
appropriate penalty, you may act in response thereto and impose a sentence of life
without possibility of parole.” At the May 24, 1999 and November 18, 1999
hearings on these proposed instructions, the parties and the trial court regarded
them as essentially the same.
       As an initial matter, this is an argument entirely of the court’s own
invention, as the Attorney General nowhere relied on this aspect of the record to
demonstrate harmless error. The court’s reliance on this argument seems a rather
questionable way to adjudicate whether the state has carried its burden of proving
the absence of prejudice beyond a reasonable doubt. (See Chapman, supra, 386
U.S. at p. 24.)
       In any event, it is no wonder that the Attorney General never made this
argument in her briefing or at oral argument. From the text of the two proposed
instructions and from the transcripts of the two hearings on those instructions, it is
clear that defense counsel sought to inform the jury that if its observation of
defendant aroused mercy, sympathy, empathy, or compassion, then it could
consider this factor in choosing life over death. Defense counsel gave no
indication that he believed the jury would find defendant’s courtroom demeanor to
be mitigating. As defense counsel explained at the November 18, 1999 hearing,
he was simply seeking to enumerate for the jury as many potentially mitigating
factors as he could. The court’s assertion that “the only reasonable inference” is
that the stun belt did not negatively affect defendant’s demeanor (maj. opn., ante,
at p. 22) would be more convincing if the proposed instructions had merely told
                                          41
the jury it was free to consider defendant’s demeanor in its sentencing decision —
and left it at that. But a proposed instruction that says the jury may take demeanor
into account if the jury finds it to be mitigating does not firmly indicate that
defense counsel believed defendant’s demeanor would weigh in his favor. Rather,
the conditional language of the proposed instruction, coupled with defense
counsel’s opposition to any prosecutorial comment on defendant’s demeanor,
suggests that defense counsel saw a downside risk to the jury’s consideration of
demeanor. Indeed, the protective tilt of the proposed instructions was why the
prosecutor opposed the instructions and why the trial court at the penalty retrial
refused to give them. The court’s reliance on this sole aspect of the record as
“affirmatively demonstrating” the absence of prejudice (id. at p. 22) serves only to
underscore the lengths to which the court must go to reach its holding today.
       Finally, the court’s harmless error analysis is laced with string cites
purporting to show that “reversal of a judgment is unwarranted when the record on
appeal is devoid of evidence that the unjustified use of shackles or a stun belt had
any adverse effect.” (Maj. opn., ante, at p. 14, italics added; see id. at pp. 14–15,
24–25.) But this conflation of shackles and stun belts elides an important
distinction.
       Most of the cases cited by the court involved traditional physical restraints
like shackles, leg restraints, or handcuffs. We have consistently found the use of
such restraints to be harmless where the jury never saw the restraints and where no
evidence suggests they affected the defendant’s decision to testify or any other
aspect of the defense. (See People v. Foster (2010) 50 Cal.4th 1301, 1322
(Foster); People v. Letner and Tobin (2010) 50 Cal.4th 99, 155 (Letner); People v.
Ervine (2009) 47 Cal.4th 745, 773–774; People v. Wallace (2008) 44 Cal.4th
1032, 1051; People v. Combs (2004) 34 Cal.4th 821, 838–839; People v. Anderson
(2001) 25 Cal.4th 543, 596; Cox, supra, 53 Cal.3d at p. 652.) These cases stand to
                                          42
reason because the principal vector of prejudice when it comes to shackles, leg
restraints, or handcuffs is its visibility to the jury, which erodes the presumption of
innocence.
       By contrast, “the greatest danger of prejudice [from improper use of a stun
belt] arises from the potential adverse psychological effects of the device upon the
defendant rather than from the visibility of the device to the jury.” (Mar, supra,
28 Cal.4th at p. 1225, fn. 7.) No case law suggests that traditional restraints have
the potential to achieve the “ ‘ “total psychological supremacy” ’ ” over the
defendant that a stun belt is designed to achieve. (Id. at p. 1226.) Indeed, this
court in Letner quoted Mar’s graphic description of what a stun belt does to a
person when activated and said “[t]here is no evidence that the leg brace worn by
Letner created a remotely comparable level of potential pain, injury, and
humiliation, such that Letner’s ability to concentrate and participate in the trial
proceedings similarly might have been affected.” (Letner, supra, 50 Cal.4th at
p. 156.) Thus, our cases finding the invisible use of traditional restraints harmless
in the absence of affirmative evidence that the defense was impaired do not
suggest an equivalent rule for stun belts.
       Our cases that have found erroneous use of a stun belt to be harmless
likewise do not support today’s holding. In People v. Manibusan (2013) 58
Cal.4th 40, the defendant expressly agreed to wear the belt, so it is unsurprising
we found any error to be harmless in the absence of evidence showing an adverse
effect. (Id. at pp. 85–86; accord, Stanford v. State (Ga. 2000) 528 S.E.2d 246,
249–250 [finding harmless error where the defendant did not object to wearing a
stun belt and the record did not show prejudice]; State v. Johnson (Ohio 2006) 858
N.E.2d 1144, 1179–1180 [same].) In People v. Virgil, supra, 51 Cal.4th 1210, we
held that the trial court did not err in ordering the use of a stun belt, and we did not
engage in harmless error analysis. (Id. at p. 1271.) In Foster, the defendant did
                                          43
not object to the stun belt, and we deemed the issue forfeited. (Foster, supra, 50
Cal.4th at pp. 1321–1322.)
       That leaves Howard, supra, 51 Cal.4th 15, the case on which the court
principally relies. (Maj. opn., ante, at p. 22.) But our finding of harmless error in
that case turned “[m]ost significantly” on our observation that “at sentencing
defendant made an extended statement to the court regarding his mental state
during trial. He made no reference to a stun belt or its effects on his demeanor
while testifying. Instead, defendant claimed his testimony had been affected by
antipsychotic medication.” (Howard, at p. 29.) We concluded that “the record
affirmatively dispels any notion that [the defendant] was prejudiced” because the
stun belt “had no appreciable effect on him, even by his own account.” (Id. at
pp. 28, 30; see id. at p. 30, fn. 6 [“[T]he concern that defendant may have been
psychologically affected by a stun belt in this case was put to rest by his own
statements to the court about his mental state during trial.”].) Because the record
here does not include any fact remotely similar to the fact we found dispositive in
Howard, it strains credulity to say that the record in this case, as in Howard,
“affirmatively dispels any notion of prejudice.” (Maj. opn., ante, at p. 24.)
       In sum, today’s opinion dismisses any possibility of prejudice at the penalty
retrial as “pure conjecture.” (Maj. opn., ante, at p. 21.) Even though defendant
repeatedly complained about the belt, even though he naturally worried about
accidental activation, even though the trial court observed “lack of emotion” in his
demeanor, even though the trial court warned right before his mother testified that
“the bailiff will take actions” if he engaged in any verbal or nonverbal
communication with his family, and even though the first jury hung at the penalty
phase, the court says it is certain beyond a reasonable doubt that the jury would
have reached the same verdict absent the stun belt error. Now that is pure


                                         44
conjecture — and it is conjecture based on reasoning plainly at odds with
Chapman.
                                         III.
       Observers of this court have long noted the prominent role of harmless
error doctrine in our death penalty jurisprudence. One study of 215 capital cases
decided by this court between 1986 and 1996 reported that the court found guilt
phase error in 55% of the cases and penalty-phase error in 74% of the cases, but
found 93% of guilt phase errors and 85% of penalty-phase errors to be harmless,
producing a reversal rate of 3.8% for guilt verdicts and 11% for death verdicts.
(Kamin, Harmless Error and the Rights/Remedies Split (2002) 88 Va. L.Rev. 1,
70.) By contrast, 33% of the death sentences meted out nationally from 1986
through 1996 have been overturned on appeal or collateral review, and the reversal
rate is even higher for death judgments prior to 1986. (U.S. Dept. Justice, Bur. of
Justice Statistics, Capital Punishment, 2001 – Statistical Tables (2013) p. 19,
table 16, available at http://www.bjs.gov/content/pub/pdf/cp11st.pdf [as of Mar. 3,
2014]; see Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973–
1995 (2000) 78 Tex. L.Rev. 1839, 1850 [reporting that state and federal courts
nationwide found prejudicial error in 68% of capital cases between 1973 and
1995].)
       Unfortunately, the dubious reasoning in today’s decision is not an isolated
lapse in our harmless error jurisprudence. For example, just as the court here
supplies an argument on the state’s behalf that the state itself never made in
confronting its burden to demonstrate harmless error (ante, at p. 41), the court in
another case recently found the omission of a reasonable doubt instruction to be
harmless under Chapman despite the state’s concession in its answer brief that the
error required reversal. (People v. Aranda (2012) 55 Cal.4th 342, 379, 383 (conc.
& dis. opn. of Liu, J.) (Aranda).)
                                         45
       In addition, the court’s willingness to infer no reasonable possibility of
prejudice where the record is silent or indeterminate as to actual prejudice is a
recurring maneuver in our harmless error doctrine. Consider, for example, the
reasoning in People v. Whitt (1990) 51 Cal.3d 620 (Whitt). The defendant in Whitt
had taken the witness stand during the penalty phase of his capital trial. In
response to two questions posed by defense counsel — “Do you want to live?” and
“Why do you deserve to live?” — the prosecutor objected, and the trial court
sustained the objections. (Id. at p. 646.) This court held that the trial court’s
rulings, by denying the defendant an opportunity to plead for his life before the
jury, “violated his federal constitutional right to have the sentencer consider all
relevant mitigating evidence.” (Id. at p. 647.) But the court went on to find the
error harmless under Chapman: “In this case, though the question ‘Why do you
deserve to live?’ might produce a significant answer, the phraseology is so
inherently broad, and the range of conceivable answers so vast, that we cannot
know whether defendant’s actual response might have influenced the penalty
determination.” (Id. at p. 648.) Reversal was not warranted under these
circumstances, this court concluded, because the defendant had not made a record
of what he would have said and thus prejudice could not be assessed. (Ibid.) As
to Chapman’s mandate that the burden is on the state to prove the error was
harmless beyond a reasonable doubt, the court said “the ‘state-burden’ language in
Chapman does not literally mean that an appellate court must reverse the judgment
because the prosecution has failed to place evidence in the record showing that the
error was harmless. Rather, Chapman . . . [means that] where federal
constitutional error occurs and prejudice can be assessed from the record, there is
a strong presumption that the defendant was prejudiced.” (Id. at p. 649, italics
added.)


                                          46
       Three justices dissented. Justice Mosk explained that the court’s “analysis
rests on an implied premise that the burden of proof as to prejudice rests on the
person complaining of the error. But as the very words of Chapman demonstrate,
that premise is radically unsound: ‘Certainly error, constitutional error, . . . casts
on someone other than the person prejudiced by it a burden to show that it was
harmless . . . . [T]he beneficiary of a constitutional error [is required] to prove
beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.’ (386 U.S. at p. 24.)” (Whitt, supra, 51 Cal.3d at p. 666 (conc.
& dis. opn. of Mosk, J.).) “The People simply fail to carry that burden. Because
of the error, we cannot know what specific answers defendant might have given or
what precise force those answers might have carried. The void in the record is
indeed disturbing. But it is the People that created the void. And it is the People
that must bear the responsibility.” (Ibid.) Justice Kennard similarly explained:
“To condition an evaluation of federal constitutional error on a defendant’s offer
of proof, as the majority does, relieves the beneficiary of the error (the
prosecution) of the obligation to demonstrate that the error did not affect the
verdict, and impermissibly shifts to the defendant the burden of proving
prejudice.” (Id. at pp. 671–672 (conc. & dis. opn. of Kennard, J.); see also id. at
pp. 668–669 (conc. & dis. opn. of Broussard, J.).)
       Whitt was not wrong to say that “the ‘state-burden’ language in Chapman
does not literally mean that an appellate court must reverse the judgment because
the prosecution has failed to place evidence in the record showing that the error
was harmless.” (Whitt, supra, 51 Cal.3d at p. 649.) The state’s burden in a
harmless error inquiry is not a traditional evidentiary burden of production. As the
high court has observed, harmless error inquiry “does not involve a judge who
shifts a ‘burden’ to help control the presentation of evidence at a trial, but rather
involves a judge who applies a legal standard (harmlessness) to a record that the
                                          47
presentation of evidence is no longer likely to affect.” (O’Neal, supra, 513 U.S. at
p. 436.)
       However, to say that the prosecution bears no burden of production is not to
say that reversal is unwarranted whenever a defendant who objected to the error
has not made a record from which a reviewing court may assess prejudice. Whitt
found harmless error on the rationale that “we cannot know whether defendant’s
actual response might have influenced the penalty determination” (Whitt, supra,
51 Cal.3d at p. 648); in other words, the trial court’s error might or might not have
affected the verdict. If the infirmity of this reasoning were not already evident in
light of Chapman, it is surely evident in light of O’Neal, where the high court,
relying on Chapman, made clear that an error cannot be found harmless where
“the matter is so evenly balanced that [the court] feels [itself] in virtual equipoise
as to the harmlessness of the error.” (O’Neal, supra, 513 U.S. at p. 435.)
Similarly, in Riggins, the high court reversed a capital conviction where “[e]fforts
to prove or disprove actual prejudice from the record before us would be futile,
and guesses whether the outcome of the trial might have been different [without
the error] would be purely speculative.” (Riggins, supra, 504 U.S. at p. 137.)
Whitt misapplied Chapman and cannot survive the high court’s subsequent
precedent. And yet, this court continues to cite Whitt for the proposition that no
cognizable prejudice can result from the erroneous exclusion of potentially
mitigating testimony at the penalty phase of a capital trial unless the defendant can
show from the record that the testimony would have affected the verdict. (See,
e.g., People v. Earp (1999) 20 Cal.4th 826, 891–892, citing Whitt, at p. 648.) The
court’s opinion in this case is cut from the same cloth.
                                          IV.
       Today’s decision confirms that “[a]ppellate judges . . . are often reluctant to
open the way to a new trial, given not only the risk of draining judicial resources
                                          48
but also the risk that a guilty defendant may go free” or escape just punishment.
(Traynor, supra, at p. 50.) Yet “[t]he very reluctance of judges to confront such
risks . . . serves to condone errors that may affect a judgment and thus engenders a
still more serious risk, the risk of impairing the integrity of appellate review.”
(Ibid.) The Chapman rule — both its reasonable doubt standard and its allocation
of the burden of persuasion — has long endured as the proper accommodation of
these competing risks. When a reviewing court fails to faithfully apply the
standard, it compromises the fairness of the proceeding, usurps the jury’s function,
and weakens the role of appellate review in deterring future errors.
       Regrettably, today’s decision is only the most recent instance in which this
court has deviated from Chapman’s mandate. The deviations have occurred in
capital cases (see, e.g., Gamache, supra, 562 U.S. at p. __ [131 S.Ct. at p. 592]
(statement of Sotomayor, J.); Whitt, supra, 51 Cal.3d at pp. 666–668 (conc. & dis.
opn. of Mosk, J.)) as well as noncapital cases (see Aranda, supra, 55 Cal.4th at
p. 377 (conc. & dis. opn. of Liu, J.)). Given the precedential force of these
decisions, it is reasonable to worry that Chapman will continue to mean something
different in the courts of California than what the high court has repeatedly said it
means.
       Today’s opinion signals a retreat from the rigorous standards governing the
use of stun belts and similar devices. It also deviates from the degree of accuracy
and reliability that is required when a jury is entrusted to make the most
consequential decision allowed to be made in a court of law. For these reasons, I
respectfully dissent from the court’s judgment upholding the sentence of death. In
all other respects, I join the court’s opinion.


                                                   LIU, J.


                                           49
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jackson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S086269
Date Filed: March 3, 2014
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Edward Webster and Russell Schooling

__________________________________________________________________________________

Counsel:

Gilbert Gaynor, 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, Annie Featherman Fraser and Adrianne S.
Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gilbert Gaynor
Law Office of Gilbert Gaynor
P.O. Box 41159
Santa Barbara, CA 93140-1159
(805) 962-5842

Adrianne S. Denault
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2287
