          IN THE SUPREME COURT OF
                 CALIFORNIA

                          THE PEOPLE,
                     Plaintiff and Respondent,
                                 v.
                   JOSHUA MARTIN MIRACLE,
                     Defendant and Appellant.

                                 S140894

               Santa Barbara County Superior Court
                            1200303



                           December 3, 2018

Chief Justice Cantil-Sakauye filed the opinion of the court, in
which Justices Chin, Corrigan, Cuéllar, Kruger and Ikola*
concurred.

Justice Liu filed a dissenting opinion.




*
       Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.
                    PEOPLE v. MIRACLE
                            S140894


         Opinion of the Court by Cantil-Sakauye, C. J.


       Defendant Joshua Martin Miracle pleaded guilty to the
first degree murder of Elias Raymond Silva (Pen. Code, §§ 187,
subd. (a), 189; further undesignated statutory references are to
the Penal Code), and to assault with a deadly weapon, a knife,
on Jaime Alfaro Lopez (§ 245, subd. (a)(1)). He admitted two
special circumstances: that he intentionally killed Silva by
means of lying in wait (§ 190.2, subd. (a)(15)), and that he
intentionally killed Silva while defendant was an active
participant in a criminal street gang and the murder was
carried out to further the activities of the gang (§ 190.2, subd.
(a)(22)). In connection with the murder of Silva, he admitted
the allegations that he personally used a deadly or dangerous
weapon, a knife, (§ 12202, subd. (b)(1)), and that the murder
was committed for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent
to promote, further, and assist in criminal conduct by gang
members (§ 186.22, subd. (b)(1)). In connection with the
assault on Lopez, he admitted the allegations that he
personally used a deadly or dangerous weapon, a knife,
(§ 12202, subd. (b)(1)), and that he personally inflicted great
bodily injury (§ 12202.7, subd. (a)). At the penalty trial, the
jury returned a verdict of death. This appeal is automatic.
(Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the
judgment.



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                    I. STATEMENT OF FACTS
     A. Evidence of the Charged Crimes
         1. Murder of Elias Silva
      Because defendant pleaded guilty to the charges and
allegations, evidence related to the crimes was submitted at
the penalty phase to establish the circumstances of the crimes.
(§ 190.3, subd. (a).)
     Elias Silva was killed on Saturday night or Sunday
morning (October 2 or 3, 2004) in Robert Galindo’s apartment.
Galindo agreed to testify pursuant to an agreement that he
plead guilty to voluntary manslaughter in connection with the
death of Silva. As described below, defendant and Robert
Ibarra spent several days in Galindo’s apartment, coerced and
threatened Galindo to lure Silva to the apartment, and then
stabbed Silva 48 times.
      Galindo and Ibarra had been friends for about three
years, and in the days before Silva was killed, they consumed
methamphetamine together in Galindo’s apartment. Galindo
was also friends with Danny Ramirez, who had arranged with
Galindo to come to Galindo’s apartment on Thursday night,
September 30, to give Silva a tattoo. When Ramirez arrived at
the apartment, defendant was with him. Galindo had not met
defendant before that evening.        Silva also came to the
apartment, and he and Ramirez discussed the tattoo, but
apparently agreed to do the tattoo the next day. Ramirez then
asked if he and defendant could stay at Galindo’s apartment
overnight.
     The morning of Friday, October 1, while Galindo was
showering, Silva came by the apartment and picked up
Ramirez, leaving Galindo, Ibarra, and defendant in the


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apartment. Galindo asked defendant why he was still there,
and defendant told him Ramirez would come back for him.
Ibarra left the apartment Friday night, but Galindo let
defendant stay, because Galindo assumed Ramirez would
eventually come back to get defendant.
      On either Friday or Saturday, Galindo went to see Silva,
bothered by the fact that when Silva came to the apartment to
discuss the tattoo, he did not say “hi” to Galindo like he usually
did. When Galindo asked Silva to explain, Silva told him that
defendant was no good and that Galindo should get him out of
his apartment.
      Saturday morning, Ibarra returned to the apartment.
During the day, defendant and Ibarra spent a substantial
amount of time in Galindo’s bathroom, consuming
methamphetamine. Ibarra left the apartment at some point,
and when he returned at around 8:30 or 9:00 p.m., the mood in
the apartment changed. Ibarra was “wired,” “antsy,” in “a very
hyper mood.” Galindo inquired regarding the purpose of a
duffel bag Ibarra brought back with him, and Ibarra said it
was for Ibarra’s and defendant’s clothes. Galindo heard
defendant talking about needing to take care of a “rat,” which
Galindo understood to refer to someone who was cooperating
with law enforcement.
       At some point, either defendant or Ibarra asked Galindo
to call Silva, who sold methamphetamine, to bring drugs to the
apartment. Galindo did not have a telephone, so he used
Ibarra’s mobile phone. Galindo called Silva, and Silva told
Galindo that he did not want to have anything to do with
“them,” and that Galindo should “get them out of your house.”
Thereafter, Ibarra told Galindo to call Silva again. Because


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Ibarra’s telephone had to be charged, Ibarra suggested that
Galindo go to a payphone to make the call.
      Galindo left, but did not call Silva. When he returned to
his apartment, defendant and Ibarra were in the bathroom,
apparently consuming more methamphetamine. Defendant
and Ibarra asked Galindo to call Silva again. Galindo then
called wrong numbers a few times on Ibarra’s telephone, and
acted like he was calling Silva. Defendant and Ibarra told him
to keep trying, and at some point, Galindo said he would go out
to get some cigarettes and would try calling from the payphone
again. When Galindo returned, Ibarra continued to urge him
to call, and Galindo told him that he had left voicemail
messages.
      At this point, defendant was in the kitchen, taping the
loose handle on a butcher knife from Galindo’s kitchen.
Defendant and Ibarra continued to tell Galindo to call Silva,
and Galindo responded that he had already called Silva too
many times. Ibarra was becoming more persistent about
calling Silva, and both defendant and Ibarra were becoming
agitated with Galindo. Galindo asked, “Why are you doing this
to me?” Ibarra told him to “just shut the fuck up and call him.”
Galindo then said he would go to the payphone and call Silva
one more time, but he did not call Silva.
     When Galindo returned, his furniture had been moved
from the living room to the kitchen area, leaving more open
space in the living room. Galindo asked why his belongings
had been moved, and Ibarra told him to shut up and call Silva.
Defendant then brought out the butcher knife, stood behind
Galindo, put his arm around Galindo, and held the knife by
Galindo’s throat or upper chest. Defendant told Galindo, “You


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need to call.” In addition, defendant wanted to listen to
Galindo’s call because he and Ibarra did not believe that
Galindo was calling Silva. Yelling back and forth ensued, and
Galindo was crying. Defendant told Galindo, “I don’t care what
you say to him to get him over here, you just need to get him
over here.”
      Galindo called Silva and left a message that Galindo’s
cousins were in town, they wanted to party, and Silva should
bring some drugs. Within a few minutes, Silva called back,
and Galindo spoke to Silva while defendant continued to hold a
knife to him. After confirming that his cousins were still there,
Galindo told Silva to meet him in the back. Galindo had never
before told Silva to meet him in the back, and he thought Silva
might guess that something was amiss. When Silva called
again and said he was two minutes away, defendant told
Galindo not to go out, and instead to meet Silva at the
apartment door. Silva called again, asked why Galindo did not
come out, and said he was coming to the door.
      Ibarra then stood in a position to be the first person Silva
would see when the door opened. Defendant stood behind
Galindo to make sure Galindo opened the door. As Silva
started to enter, Ibarra pulled him inside. Defendant pushed
Galindo to the side, rushed at Silva, and helped Ibarra drag
him into the center of the room. When defendant pushed
Galindo to the side, defendant still had the knife in his hand.
Defendant closed the door and told Galindo to lock it, but
Galindo left the apartment to look for Silva’s “homeboys.”
      Galindo did not find them. He then went to look for his
roommate Phillip, because Ibarra had said that he was going to
kill anyone who came through the apartment door. About 20


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or 25 minutes after leaving the apartment, Galindo headed
back to the apartment, and saw a trail of blood drops and
bloody footprints in the direction of the parking lot where Silva
would have parked his car. Galindo returned to his apartment,
and discovered broken furniture and Silva lying in blood.
Galindo fled again, looking for Phillip.
      Deputy Sheriff Lawrence Hess and a second deputy
arrived at the apartment in response to a later 911 call. They
saw a trail of blood leaving the apartment, and when they
entered the apartment, they saw that furniture had been
moved and tipped over, there was a “large amount of blood in
the living room area,” and Silva’s body was on the carpet.
      Defendant and Ibarra were arrested in San Diego,
driving Silva’s car. Ibarra had a puncture or stab-type wound
to his leg, and there appeared to be a fresh blood stain on the
floor of the car. Photographs taken after defendant was
arrested showed “ESG” tattooed on the back of defendant’s
head, and a number of small tattoos on his chest.
      The parties stipulated that Silva was stabbed 48 times.
Photographs of many of the stab wounds were admitted,
including a photograph of Silva’s heart with a stab wound in it.
      Lisa Hemman, a senior identification technician in the
forensics unit of the Santa Barbara County Sheriff’s
Department, identified various objects found in a duffel bag in
the apartment, including a hammer or hatchet-looking item,
two tarps, plastic sheeting, duct tape, pliers, and a workman’s
knife. Galindo identified Ibarra in a videotape, purchasing
items at a Home Depot. A receipt from the Home Depot
reflected the purchase of a poly sheet, vinyl gloves, and a tarp.
Hemman also identified in photographs wounds on the side


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and front of Silva’s neck, and numerous other injuries, most
consisting of puncture or stabbing wounds.
      Finally, Detective Gary Siegel testified as a gang expert.
In his opinion, the murder of Silva was for the benefit of the
Eastside Gang.
         2. Assault with a Deadly Weapon on Jaime Lopez
      Jaime Lopez testified that he was a member of the
Eastside Gang, and that the “ESG” tattoo on the back of
defendant’s head stood for “Eastside Gang.” He admitted
driving to a Circle K store on September 23, 2004, but stated
that he did not see defendant there, and did not remember
telling a grand jury that he saw defendant in the parking lot.
Lopez further testified that he did not know how he got a stab
wound on his back or a cut over his eye, and that he did not
say anything to the contrary to the investigating detective,
Gary Siegel.
      Detective Siegel testified that Lopez and defendant were
members of the Eastside Gang, and that Lopez told him that
defendant stabbed him on September 23, 2004, at a Circle K
store. He also testified that Lopez was very worried about the
ramifications of testifying. Finally, Siegel testified that, in his
opinion, the assault on Lopez was for the benefit of the
Eastside Gang.
      B. Other Evidence
       The People presented testimony concerning a violent
incident in the holding cell at the courthouse and two violent
incidents in the county jail. They also presented a stipulated
list of more than two dozen incidents of violence or threats by
defendant from 1993 to 2005. This evidence is described below,



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in connection with the discussion of defendant’s contention
that he was subjected to excessive restraints in the courtroom.
       In addition, James Nalls, an investigator with the
district attorney’s office, testified that he heard defendant
make the following statements while in the courtroom on
October 25, 2005. “I believe in accepting the consequences of
my actions, good or bad, and maintaining my princip[les]
regardless of the cost, including death. I feel that if I’m willing
to kill I should also be willing to die.” He also heard defendant
state, “I didn’t show any mercy, so I’m not going to ask for any
mercy.” Similarly, on August 9, 2005, Nalls heard defendant
state during a telephone conversation, “The way I see it, if I’m
willing to kill I should be willing to die, too.”
       Silva’s widow, Deanna Garcia testified that she and Silva
were together for 12 years, and had three children, ages nine,
five, and three. Their children missed their father and asked
about him every day. She tries to be strong for their children.
Silva’s mother, Suzanne Silva, testified that she was close to
her son. He had left behind his life with the Goleta 13 gang in
Santa Barbara. He had a good job at the University of
California, Santa Barbara, and spent time with his children,
taking them fishing and camping. The events had been very
hard for her grandchildren. She missed her son very much.
      Defendant’s advisory counsel engaged in some cross-
examination, but defendant did not present any evidence at
the penalty phase and declined to make a closing argument.
At a pretrial hearing on October 25, 2005, defendant
personally described at length his reasons for not presenting
mitigating evidence, including the point that the jury may
decide that he does not deserve the death penalty because he


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was not making excuses for his actions and was willing to
accept responsibility. His advisory counsel then asked him to
make clear for the record that he was not seeking the death
penalty and would be pleased if the jury sentenced him to life
without the possibility of parole. Defendant responded, “It
would be correct to assume that I’m not seeking the death
penalty.” On November 21, 2005, the trial court held an in
camera hearing with defendant and his advisory counsel to
review all of the mitigating evidence obtained by the defense,
and to confirm that defendant did not want the evidence
presented.

                 II. PRETRIAL PROCEEDINGS
       As described more fully below, defendant sought to plead
guilty to the capital murder charge and to admit a special
circumstance allegation from the outset of the proceedings in
March 2005. When his appointed counsel was unwilling to
consent to a guilty plea, defendant asserted his right to
represent himself. (See Faretta v. California (1975) 422 U.S.
806 (Faretta).) The trial court granted defendant’s motion, and
appointed advisory counsel to assist him. Advisory counsel
reviewed all of the evidence with defendant, and eventually
concluded that entering an unqualified guilty plea to the
murder charge and admitting the special circumstance
allegations was an intelligent tactic to try to avoid a death
sentence. The trial court confirmed that advisory counsel had
effectively acted throughout his appointment as counsel to
defendant. The court allowed defendant to plead guilty to the
capital charge and to admit the two special circumstance
allegations.




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     A. Procedural History
      Defendant’s first appearance in court following the grand
jury indictment was in early March 2005, when he agreed to
continue his arraignment to later that month. At the later
hearing, defendant’s counsel, Michael Carty, informed the
court that defendant intended to make a motion to represent
himself, and that defendant was aware that the court might
want to research the implications of his proceeding in propria
persona in a capital case. The trial court cautioned defendant
regarding the serious and complex nature of the case, directed
Carty to discuss all of the implications with defendant, and
continued the matter. Carty disclosed that he had discussed
the issue with defendant for three hours, and was of the
opinion that defendant was capable of making that decision
under Faretta. (Faretta, supra, 422 U.S. at p. 835.) The trial
court asked defendant to confer further with Carty, and to
consider what the court had said.
      In early April, Carty informed the court that defendant
had indicated to him on multiple occasions that he intended to
plead guilty at the earliest possible time to counts 1 (murder)
and 2 (attempted murder), and to admit at least one of the
special circumstance allegations. Carty further disclosed that
he had discussed with defendant section 1018, which prohibits
a plea of guilty to a capital offense unless the defendant
appears with counsel who consents to the plea. Although
defendant wanted his counsel to consent to the plea that day,
Carty declined to do so, principally because he was still
reviewing the grand jury transcript and investigating
witnesses. Therefore, Carty did not believe he could ethically
support a change in defendant’s plea that day. He further
explained that because he would not support defendant’s


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desire to plead guilty that day, it was defendant’s wish to
proceed with his motion to represent himself. Carty reiterated
that he found no evidence of a mental incapacity that would
preclude defendant’s self-representation.
      Carty then advised the court that if it granted
defendant’s motion to represent himself, the court would be
called upon to provide defendant with advisory counsel. He
further informed the court that it was required “to set the
scope and the functions of advisory counsel. . . . And I think
that the Court ought to authorize advisory counsel to be
involved in the change of plea so that you could satisfy Penal
Code Section 1018.” In response to questioning by the court,
Carty confirmed that the court could set the terms of the
appointment of advisory counsel to require advisory counsel’s
consent in order to enter a guilty plea.
      The court then obtained defendant’s confirmation that he
wanted to enter a guilty plea. Defendant further confirmed
that he was comfortable with Carty’s representation of him,
but because Carty was not willing to consent at that point in
time to a guilty plea and an admission of the special
circumstance allegations, defendant wanted to represent
himself. Carty stated that his primary objection to defendant’s
desire to plead guilty and admit the special circumstance
allegations was that this course would make him eligible for
the death penalty. The court explained to defendant that
counsel was still reviewing the grand jury transcript and other
materials, and was not yet in a position to consent to or oppose
a guilty plea. The court further stated that if it granted a
Faretta motion and appointed advisory counsel, “I can
condition the appointment of advisory counsel on compliance
with Penal Code Section 1018 which requires consent of that

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advisory counsel.” The court declined to take defendant’s
guilty plea or admissions to the special allegations, stating
that the case was “far too serious,” and that defendant’s
counsel needed more time to review the record.
      Defendant responded that he wanted “to pursue the
Faretta motions with the conditions Carty stipulated before.”
Carty then stated that defendant “has very strong opinions
about what type of evidence should be presented on his behalf
at the penalty phase,” which would “pose a real problem to
counsel. Because case law says that a defendant cannot
prohibit counsel from presenting mitigation evidence over the
objection of the defendant, that decision is placed entirely with
trial counsel.” He further explained that “[a] facet of this
Faretta decision is allowing Mr. Miracle to present or to limit
evidence at the penalty phase that he’s never going to get me,
or probably any other ethical lawyer, to go along with unless
there’s some sort of agreement reached, and I think that Mr.
Miracle is concerned that he wants to control what sort of
mitigation evidence is presented with Judge or jury. That
argues, I believe, for the Faretta position, the pro per position,
and I’ve discussed that with Mr. Miracle at length.” The court
reiterated that it would not rule on defendant’s motion to
represent himself until Carty finished reviewing the entire
record.
      In mid-April, at the continued arraignment hearing,
Carty stated that he had reviewed all relevant materials, had
discussed his review with defendant, and would not consent to
a guilty plea or admission of the special allegations. He
explained that “the question is not limited to whether or not he
should admit guilt or enter guilty pleas to the charged count
and admit the special allegations, a big part of the picture has

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to do with Mr. Miracle’s very strong preferences as to what
material, if any, should be permitted at the penalty phase on
the case, and whether or not he should cooperate with
investigation and any expert witnesses that might be used in
mitigation.” He stated that he did not want to “reveal
confidential communications, but Mr. Miracle and I cannot
agree on the presentation of penalty phase material.” Carty
added that he did not think defendant would be able to find an
attorney who would agree not to present evidence in
mitigation. The trial court then explained to defendant that he
had a right to have counsel represent him at the guilt phase,
and could then decide to represent himself at the penalty
phase.      Defendant confirmed that he understood that
possibility, and Carty confirmed that he had explained that
approach to defendant. In addition, Carty had provided
defendant with a copy of section 1018 and had spent hours
discussing its impact on defendant’s options. Carty also stated
that defendant wanted to make an unequivocal request to
proceed in propria persona at both phases of the trial.
      The court then turned to defendant, who confirmed that
he wanted to represent himself, that he had reviewed the
indictment with his attorney, and that he understood the
nature of the charges and potential penalty. In response to
further questioning, defendant stated that he had been
through the court system in other cases, but he had never
represented himself and had no legal training. With respect to
his understanding of how the court system works, he felt he
could become familiar with each stage as the case proceeded
and educate himself. He stopped regularly attending school at
about age 11, when he was first sent to juvenile hall, and did
not thereafter attend a full school year. He attended school at


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the California Youth Authority beginning at age 14, taking
both high school and college classes, and he could read and
write.
      Defendant stated that he wanted to represent himself
because Carty was interfering with his desire to plead guilty,
and Carty disagreed with defendant regarding the mitigating
evidence to be presented. Defendant explained that he did not
intend to cooperate with any professional investigators or
psychologists, and did not intend to present any defense. The
court asked defendant whether he understood that even if he
represented himself, state law prohibited a plea of guilty, so he
would not be able to avoid a trial. Defendant responded that
he had been led to believe that if the court appointed an
“assistant counsel,” and that counsel was willing to consent to
a guilty plea, that consent would be “just as legitimate as”
Carty’s consent. The court responded that it was highly
unlikely that advisory counsel would be in a position to consent
to a guilty plea and admission of special allegations, so there
would be a trial regardless of whether he represented himself.
The court asked if he understood that he would be better off
having counsel, and defendant disagreed, noting that he did
not intend to offer any defense.
      Carty stated that defendant “has the mental capacity to
waive the constitutional rights to counsel, he realizes the
probable risk and consequences of his action, and his decision
is voluntary and intelligent.” Carty further stated that he
could not formally oppose defendant’s request to represent
himself, but he had “spent hours and hours with Mr. Miracle
suggesting to him that this Faretta motion is ill-advised.” The
court agreed that it was ill-advised, but granted the Faretta
motion. It stated that it would “appoint stand-by counsel,

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sometimes called advisory counsel, to assist you.” It added
that it was for the court to determine the parameters of
counsel’s role, and that the issue was one that “we can explore
in terms of exactly what role advisory counsel will play.” After
the court twice referred to stand-by counsel, Carty stated that
he had explained to defendant the difference between stand-by
and advisory counsel, and that defendant was seeking advisory
counsel. The court then inquired whether Carty might serve
as advisory counsel, but he asked not to be appointed in light of
defendant’s opposition to his continued representation. Carty
observed that another attorney, Joe Allen, had considerable
experience with respect to homicide and death penalty issues,
and the court appointed Allen as advisory counsel in late April.
      Over the following weeks, as the court addressed the
issue of the extent to which defendant would be allowed to
review discovery materials that included witnesses’ names and
contact information, Allen took an active role in the
proceedings. The court took note of Allen’s active role, but
informed defendant that it would be directing its comments to
defendant, and that defendant should respond to the court.
Thereafter, however, defendant continued to look to Allen to
represent him. When confusion regarding the court’s order
concerning redaction and the defense investigator’s access to
the materials arose, defendant asked the court to allow Allen
to explain the matter to the court, and the court agreed. Allen
then handled most of the discussions concerning the
circumstances under which defendant would be allowed to
review the materials. When the court explained to defendant
that the decision regarding expenditures for investigative
tasks was up to defendant, defendant asked whether he could
give Allen permission to spend the investigative funds as Allen


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saw fit, as defendant did not “want to be bothered with that.”
Allen stated that defendant, the defense investigator, and
Allen had been working together well in this regard, and the
court responded that it wanted to make it clear to defendant
that he was representing himself.
       At the continued arraignment in mid-June, defendant
stated that he wanted to plead guilty to all of the charges and
to admit the special allegations. The court reiterated that it
could not accept a guilty plea from him, and Allen stated that
he had not found any case law related to whether the
concurrence of advisory counsel to a guilty plea would satisfy
section 1018. Defendant asked the court it if would be inclined
to accept his plea with advisory counsel’s consent, and the
court stated it was not prepared to do so. It further explained
that if defendant wanted to expedite the process, he could do so
by asking for “a court trial within a relatively short period of
time. And you can testify at your own trial. You can say to the
Court whatever you desire. You’re also entitled to have a jury
trial, you can ask for that jury trial within sixty days of today.
You can tell the jury whatever you wish to that might assist
them in making a determination as to your guilt or innocence.”
It added that by choosing to represent himself, he had more
limited options than he might have had with appointed counsel
“at some point in time.”
      Defendant then asked if he could waive his right to
continue to represent himself and have Allen appointed to
represent him so that he could proceed with the arraignment.
The court said it would not take that action that day. It stated
that it had taken his decision to represent himself seriously,
that they had discussed it and defendant had indicated why he
wanted to represent himself. “You can’t just . . . flip back and

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forth between representing yourself and having someone
represent you. You now have advisory counsel and he’s there
to advise you as you feel it necessary, but you’re representing
yourself. I’m giving you your options now as an attorney and
as a defendant. As an attorney representing yourself and as a
defendant.”
      The court clarified that it was not suggesting that it
would not allow defendant to withdraw his in propria persona
status in the future if he was sincere in wanting the assistance
of counsel, but if his intent was “to play games with the Court,
or to seek some other objective other than to have counsel
appointed to assist you in preparing a competent defense, then,
you know, we’re in a different posture. I may not grant that
request.” The court then asked defendant why he wanted
Allen to represent him when he had repeatedly indicated he
wanted to represent himself. Allen interjected that the
question elicited information related to defense strategy and
defendant’s approach, and should occur in chambers. The
court asked Allen if defendant wanted him appointed as
counsel so Allen could concur in his guilty plea. Allen
confirmed that was defendant’s purpose, and said he could not
discuss in the presence of the prosecution defendant’s reasons
or why Allen’s position was different from Carty’s with respect
to whether counsel should agree to a guilty plea.
      The court then held an in camera hearing, at which Allen
stated that he had discussed with defendant his reasons for
wanting to plead guilty and to admit the special allegation of
lying in wait. Allen stated that defendant was “correct in two
fundamental points that are motivating his desire to enter this
set of guilty pleas and admissions.” First, defendant believed
that the evidence against him was very strong, and that it was

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highly likely that a judge or jury would find him guilty and
find the special allegations to be true, but “[f]or reasons
connected with his personal beliefs and outlook on life, he is
not interested in plea bargaining with the District Attorney’s
office.” Allen explained that defendant wanted the record to
reflect that he had “not received any guarantees of any kind of
consideration, leniency, or anything else in exchange for the
plea.    That the plea is what he wants to do to take
responsibility for what he feels he did.” Second, defendant
believed that his acceptance of responsibility through his plea
and admissions was his best strategy for avoiding a death
sentence, and Allen agreed that this strategy, “even though it’s
highly risky, is the best strategy available on the facts of his
particular case.” Allen further explained, “obviously if that
acceptance of responsibility is something less than completely
free and unconditional it loses its moral strength as an
argument . . . .”
      With respect to his ethical situation, Allen stated that if
a client’s motive “makes no sense or is contrary to the client’s
best interests, then you have an ethical obligation not to
cooperate,” but here, given the strength of the evidence, Allen
thought a jury would be irritated that it had to “hear several
weeks of, essentially, uncontestable evidence.” He stated that
the evidence was “extremely strong,” and “the likelihood of a
conviction is extremely high.” He also informed the court that
he had tried about 65 murder cases, including 15 which
potentially involved a death penalty, and had tried three
capital penalty phases. He added, “I think I understand what
I’m doing when I appraise the evidence in Mr. Miracle’s case.
[¶] Mr. Miracle doesn’t have on the guilt phase a reasonable
defense to any, except as I say, one minor allegation, which if it


                                  18
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


were resolved in his favor wouldn’t change the capital charge
or any of the allegations connected to it.” The trial court
responded that the trial would not appear pointless if
codefendant Ibarra pursued a jury trial.
       Allen then explained defendant’s intentions with respect
to Ibarra:     defendant felt that he dragged Ibarra into
defendant’s plan, and that defendant had led them to killing
the victim; Ibarra had no intent to kill the victim, but
defendant pulled Ibarra too far for him to back out. Defendant
wanted to describe to the prosecutor and Ibarra’s attorneys
what defendant’s testimony would be at Ibarra’s trial, and
wanted to testify at Ibarra’s trial. Defendant felt that his
obligation to take responsibility for his actions included
accepting responsibility for what he led Ibarra to do, and that
pleading guilty without any consideration would cause his
testimony to have more weight with the factfinder in Ibarra’s
trial. Finally, Allen stated that he wanted defendant to testify
in Ibarra’s trial prior to the penalty phase in defendant’s trial,
and that he would “argue very strongly” in defendant’s penalty
phase that defendant’s “willingness to tell the truth and help
Mr. Ibarra” was also a point in favor of a sentence of life
without the possibility of parole rather than a sentence of
death.
       The court then inquired whether the defense
contemplated a jury trial at the penalty phase. Defendant said
he did not, and explained that his only reason for pleading
guilty was because he thought he was responsible, and he
“want[ed] to do the right thing and take responsibility and
offer exonerating testimony on behalf of Mr. Ibarra.” He added
that he “just want[ed] to make clear that . . . using that as
mitigating evidence at the penalty trial is not my motive for

                                  19
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


pleading guilty.” The court sought to clarify that it was not
defendant’s main motive, and that the fact of his plea would be
used at the penalty phase. Defendant responded, “[t]ell you
the truth, I’m not concerned about it at all.” Allen interjected
that “[i]t would be fair to say that it is a very important factor
for me in agreeing to go along with this proposal.”
      The court then attempted to clarify how the case would
proceed. It stated that if it appointed Allen to represent
defendant, and if Allen consented to defendant’s guilty pleas
and admissions of special allegations, the court would not let
defendant represent himself at the penalty phase. Defendant
stated that he wanted to waive his right to a jury trial at the
penalty phase, and not to offer any mitigating evidence at that
phase. He added that “I just don’t believe in doing that, I
believe the right thing for me to do is take responsibility.” The
court pointed out to defendant that Allen had indicated that he
intended to present mitigating evidence, including the fact of
defendant’s admission. Defendant did not respond, but Allen
explained that he had advised defendant that he was willing to
help present an argument based on defendant’s acceptance of
responsibility, and that there might be other evidence that
could be presented, but that defendant “has a very strong
desire to limit that.”
      The court then explained to defendant that if it allowed
defendant to withdraw his decision to represent himself, and
thereby allow Allen to concur in his decision to plead guilty,
the court would not allow him to represent himself at the
penalty phase, and counsel would present mitigating evidence
that might exceed what defendant wanted presented. It stated
it would continue the matter for two weeks to allow defendant
and Allen to think about whether Allen should be appointed to

                                  20
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


represent defendant. Defendant asserted that the court was
interfering with his right to take responsibility for his actions.
The court responded that it was bound by state law regarding
the entry of a guilty plea. Defendant then asked the court to
research the possibility of accepting defendant’s plea with the
consent of advisory counsel. The court reiterated its view that
defendant could plead guilty only with the consent of appointed
counsel. The arraignment was continued for two weeks during
which time Allen and defendant would review the rest of the
evidence.
      At the next hearing, in late June, the court asked
defendant if he wanted to proceed with the arraignment, and
defendant asked if he could have Allen address the court.
Allen reiterated defendant’s desire to plead guilty and to admit
the special allegations, and argued, among other points, that
there was a conflict between section 1018, which prohibits a
defendant from pleading guilty to a capital offense without the
consent of counsel, and the right under the Sixth Amendment
to represent oneself. After articulating his legal arguments,
Allen stated that if defendant could not establish the right to
enter a guilty plea while representing himself, his second
choice would be to have Allen represent him. The court stated
that it was troubled by the reference to a second choice or
preference, because the court had explained to defendant that
he could not plead guilty if he represented himself, and had
also explained that defendant could not go back and forth
between representing himself and having legal representation.
It indicated that it would probably grant a request to appoint
Allen as his counsel, but would not then allow defendant to
represent himself again if he did not like how Allen was
representing him at either stage. The court then granted


                                  21
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


Allen’s request to brief the court regarding defendant’s rights
under Faretta.
      In mid-July, Allen filed a brief in which he argued that
defendant had a right to plead guilty and admit the special
circumstance allegations with the consent of his advisory
counsel, “at least where the record shows that advisory counsel
is fully informed of the facts and the law, and has the
experience and training to function as appointed defense
counsel on a capital case. . . . The concurrence of advisory
counsel under such circumstances fulfills all the policy
objectives and protects against miscarriages of justice, to
exactly the same extent as if defendant were ‘represented’ by
counsel.” Alternatively, he argued that the right of self-
representation recognized in Faretta takes precedence over the
restrictions of section 1018.
      At the next hearing, a few days later, defendant
confirmed that he still desired to plead guilty to the capital
charge and all other charges except the charge of attempted
murder. The court acknowledged defendant’s brief concerning
his asserted right to plead guilty, and addressed the role of
advisory counsel, stating that a court may expand the roles
and responsibilities of an advisory counsel at the request of the
defendant. It also stated that it was clear over the preceding
several weeks that defendant had desired Allen to play a more
active role, and Allen interjected that he was “happy to
perform that expanded role at Mr. Miracle’s request.” The
court then explained that during trial, Allen’s role would be
limited in order to avoid conflicts concerning the presentation
of the case, but these risks were not present during pretrial
proceedings. Therefore, the court concluded, it could permit
Allen to have a more active role prior to trial.

                                  22
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


       The court then turned to section 1018, noting that it
prohibits a guilty plea in a capital case without the consent of
counsel. It stated that it wanted “to be very clear in terms of
the role that Mr. Allen is assuming in terms of duties and
responsibilities at this stage of the proceedings because I want
to make sure that we comply with the spirit of Penal Code
Section 1018.” It asked Allen whether he was willing, “at least
up to this point in the proceedings, . . . to accept the duties and
responsibilities of counsel for Mr. Miracle within the meaning
of Penal Code section 1018?” Allen responded, “Absolutely,”
and added that he had discharged those duties during his
service as advisory counsel. Allen stated that “[w]e have
explored all the facts relating to the capital charge and I’m
satisfied that Mr. Miracle’s decision is a tactically intelligent
one. It’s not only voluntary and intelligent on his part in that
he understands what his legal alternatives are, but it’s an
intelligent one in that I think it plays a proper role in an
intelligent penalty phase strategy.” He explained that he was
referring to the matters discussed in the in camera hearing
held in mid-June.
      The court asked counsel if he would characterize his
representation of defendant up to that point “as being one of
counsel and not advisory counsel in terms of the duties and the
functions that you’ve performed for him, and the assistance
that you’ve provided to him.” Allen responded that he had
“spent the same time and diligence and explored the same
information and issues to the same extent as if I had been
appointed to represent him.” The court confirmed with Allen
that his statement was “with particular reference to the spirit
of Penal Code Section 1018.” The court also confirmed that
Allen understood that his conduct to date would be examined,


                                  23
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


for purposes of determining whether he provided effective
assistance of counsel, in the same manner as if he were
appointed counsel. Finally, defendant confirmed that he
continued to desire to represent himself, stated that he
accepted what the trial court described as Allen’s “greatly
expanded role,” and added that he had encouraged Allen to
take on the expanded role.
      The court then stated that “the label that I’m going to
continue to use with respect to you, Mr. Allen, will be advisory
counsel. But I don’t want there to be any ambiguity in the
record, and I don’t think there is, in terms of the greatly
expanded role that you’ve assumed in discharging
responsibilities as the functional equivalent as of counsel for
Mr. Miracle.” The court then continued the arraignment for
two weeks to make certain that Allen and defendant had
reviewed all of the discovery, and to give them additional time
to think about the decision to enter pleas and admissions.
Allen stated that he would review the plea form with
defendant at the jail.
       Defendant entered his plea at a hearing in late July.
Defendant was present, as was Allen, his advisory counsel.
The court reiterated that at a prior hearing in mid-July, the
court wanted to ensure that defendant and Allen had reviewed
all of the District Attorney’s materials and all of the discovery.
Allen confirmed that he had met with the prosecutor and was
satisfied that he had received all of the discovery. In addition,
defendant confirmed that he had reviewed all of the materials
along with Allen.
      The court asked defendant if it was still his desire to
enter a guilty plea to Count 1, the murder of Elias Silva, and to


                                  24
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


admit all of the special allegations. Defendant stated that was
still his desire. The court asked Allen if he was prepared to
consent to the guilty plea and the admissions to the special
allegations, and he responded, “Yes.” Allen also confirmed that
he was doing so unequivocally, and that he had explained to
defendant the consequences of pleading guilty and admitting
the special allegations. The court asked defendant if he was
proceeding without any equivocation, without any question in
his mind that he wanted to enter a guilty plea to the capital
charge, and he responded, “Yes.” Defendant also confirmed
that he had thoroughly discussed this course with Allen. The
court then stated that it was “going to accept the consent to the
guilty pleas as is required by Penal Code section 1018.”
      As the prosecutor was about to review the felony plea
form and waiver of rights form with defendant, the court
stated, for the benefit of “anyone who is reading this
transcript,” that at least part of Allen’s justification for
consenting to the plea was articulated at the earlier in camera
hearing. After the prosecutor asked Allen to indicate on the
waiver form that defendant was proceeding in propria persona
and was represented by advisory counsel, the court interjected
that “anyone reviewing last week’s transcript and proceeding
would certainly understand that your role as advisory counsel
at least through this proceeding today is really the role of
counsel. We’re not relieving or withdrawing Mr. Miracle’s pro
per status. He’s entitled to that and he retains it both now and
in future proceedings. [¶] But your role as advisory counsel
has been greatly expanded. In effect, you’re proceeding as
counsel to Mr. Miracle. You’ve represented on the record . . .
in the last couple proceedings and today that you’ve been
treating your role as advisory counsel as if you were appointed


                                  25
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


counsel; is that correct?” Allen responded, “And by the same
standards of behavior, exactly. That’s correct, your Honor.”
The prosecutor then confirmed with defendant that “you’re
represented by your advisory counsel Joe Allen.”
       In the course of reviewing his plea and waiver of rights,
defendant confirmed that he was pleading guilty to the murder
charge, and admitting two special circumstance allegations,
murder committed by means of lying in wait and murder by an
active participant in a criminal street gang to further the
activities of a criminal street gang. (§ 190.2, subd. (a)(15),
(22).) He also admitted enhancements for use of a deadly
weapon (§ 12022, subd. (b)(1)) and commission of the murder
while he was an active participant in a criminal street gang to
further activities of the criminal street gang (§ 186.22, subd.
(b)(1)). The court found that “the plea and admissions are
knowing, intelligent, and made understandably and that they
are free and voluntary.” At the late July hearing, defendant
pleaded not guilty to count two, the attempted murder charge.
On September 8, 2005, the court granted the prosecutor’s
motion to amend the second count to allege assault with a
deadly weapon (§ 245, subd. (a)(1)), a knife, rather than
attempted murder. Defendant then changed his plea on the
second count to guilty, and admitted the allegations that he
personally used a knife and personally inflicted great bodily
injury.
     B. Validity of Defendant’s Guilty Plea
      Defendant contends through counsel on appeal that his
plea of guilty to the capital charge was precluded by section
1018, which provides in pertinent part: “No plea of guilty of a
felony for which the maximum punishment is death, or life



                                  26
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


imprisonment without the possibility of parole, shall be
received from a defendant who does not appear with counsel,
nor shall that plea be received without the consent of the
defendant’s counsel. . . .    This section shall be liberally
construed to effect these objects and to promote justice.”
      We have previously upheld section 1018’s prohibition on
the entry of a guilty plea to a capital offense without the
consent of counsel. (People v. Chadd (1981) 28 Cal.3d 739
(Chadd).) In Chadd, the defendant wished to plead guilty, but
his counsel would not consent, observing that defendant
desired to commit suicide. The trial court ruled that if it found
the defendant competent to act as his own attorney under
Faretta, supra, 422 U.S. 806, it would accept his guilty plea
without the consent of the defendant’s counsel of record. It
thereafter found him competent, and allowed him to plead
guilty to the charges and to admit the special circumstance
allegations.
      On appeal, the Attorney General urged the court to
construe section 1018 to allow a capital defendant to choose to
represent himself and enter a guilty plea. We noted that this
scenario was “entirely hypothetical: although he well knew of
his right to do so, defendant never made an unequivocal
request to discharge [his counsel] Mr. Pitkin and represent
himself, and hence was never granted that status; on the
contrary, with defendant’s agreement Mr. Pitkin continued to
act as his counsel throughout the proceedings. [Citation.] We
will not, of course, adjudicate hypothetical claims or render
purely advisory opinions.” (Chadd, supra, 28 Cal.3d at p. 746.)
Despite our observation, we articulated two additional reasons
for rejecting the contention. First, section 1018 plainly stated
“that no guilty plea to a capital offense shall be received

                                  27
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


‘without the consent of the defendant’s counsel.’ ” (Ibid.)
Second, the proposed interpretation would render the statute’s
third sentence, which allows noncapital defendants to waive
counsel and plead guilty, redundant. (Id. at p. 747; see also
§ 1018 [“No plea of guilty of a felony for which the maximum
punishment is not death or life imprisonment without the
possibility of parole shall be accepted from any defendant who
does not appear with counsel unless” specified conditions are
met], italics added.)
       In the alternative, the Attorney General contended the
statute was unconstitutional. He appeared to concede that the
state could entirely bar guilty pleas in capital cases, but
argued that the state could not impose the lesser restriction of
requiring consent of counsel. More particularly, he asserted
that a requirement of consent “disturbs the ‘uniquely personal’
nature of the defendant’s decision to plead guilty, denies him
his ‘fundamental right’ to control the ultimate course of the
prosecution, and destroys the constitutionally established
relationship of counsel as the defendant’s ‘assistant’ rather
than his master.” (Chadd, supra, 28 Cal.3d at p. 747.) We
responded that this contention “fails to recognize the larger
public interest at stake in pleas of guilty to capital offenses.”
(Ibid.; see id. at pp. 747-754 [analyzing issue].)
      We considered section 1018 again in People v. Alfaro
(2007) 41 Cal.4th 1277, in which counsel for the defendant
declined to consent to her desire to enter an unconditional
guilty plea. Like the defendant in Chadd, Alfaro did not
invoke her right to self-representation. (Id. at p. 1298.) On
appeal, she asserted that she sought to plead guilty to support
her strategy at the penalty phase of demonstrating remorse, in
contrast to the defendant in Chadd, supra, 28 Cal.3d 747, who

                                  28
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


sought to commit suicide. We did not decide whether our
reasoning in Chadd would apply to the asserted facts, because
the record did not substantiate her claim. The record reflected
that she sought to plead guilty because she feared for the
safety of her family and herself if, through her defense, she
implicated a particular person in the crime. Her counsel
believed that the evidence she sought to avoid presenting
“would mitigate her culpability for the murder.” (Id. at
p. 1301.) Therefore, “defendant’s plea would have cast doubt
on potentially critical mitigating evidence. A guilty plea
entered under such circumstances might very well lead to the
erroneous imposition of the death penalty — precisely the
outcome section 1018 is intended to prevent.” (Ibid.)
      The facts in the present case are distinguishable from
those in Chadd and Alfaro. Here, when defendant’s counsel
would not consent to a guilty plea and defendant pursued self-
representation, his counsel proposed that the trial court
appoint advisory counsel, authorize such counsel to participate
in evaluating the appropriate plea, and require such counsel’s
consent to a guilty plea.        Following his appointment,
defendant’s advisory counsel reviewed all of the discovery with
defendant and concluded that pleading guilty was defendant’s
best strategy for avoiding the death penalty. Thereafter, the
court clarified that advisory counsel’s duties and
responsibilities encompassed the duties of counsel under
section 1018. Advisory counsel confirmed that he had accepted
and discharged those duties and responsibilities, repeated that
he thought a guilty plea was an intelligent strategy, and
further stated that he had performed in the same manner as if
he had been appointed counsel. The trial court characterized
the role advisory counsel had assumed as “the functional


                                  29
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


equivalent” of counsel. Finally, in accepting defendant’s guilty
plea, the court reiterated and advisory counsel confirmed that
he had been acting as he would if he had been appointed
counsel.
       Defendant contends that his advisory counsel’s consent
could not satisfy the requirements of section 1018 because
there is a clear line between representation by counsel and
self-representation. He is correct that a defendant may not
both represent himself and be represented by counsel. (People
v. Bloom (1989) 48 Cal.3d 1194, 1218-1219 [rejecting claim
that a motion to proceed in propria persona sought only
cocounsel status].) However, “trial courts retain the discretion
to permit the sharing of responsibilities between a defendant
and a defense attorney when the interests of justice support
such an arrangement.” (People v. Moore (2011) 51 Cal.4th
1104, 1120.)      Although a self-represented defendant is
responsible for his defense, “the court is not foreclosed from
permitting a greater role for counsel assisting a Faretta
defendant, so long as defendant’s right to present his case in
his own way is not compromised.” (People v. Hamilton (1989)
48 Cal.3d 1142, 1164, fn. 14.)
      We have recognized several forms of hybrid
representation, including “advisory counsel, in which the
attorney actively assists the defendant in preparing the
defense case by performing tasks and providing advice
pursuant to the defendant’s requests, but does not participate
on behalf of the defense in court proceedings.” (People v.
Moore, supra, 51 Cal.4th. at p. 1119, fn. 7.) When a trial court
assigns responsibilities to advisory counsel, “the defendant is
entitled to expect professionally competent assistance within
the narrow scope of advisory counsel’s proper role.” (People v.

                                  30
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


Lawley (2002) 27 Cal.4th 102, 145; see People v. Hamilton,
supra, 48 Cal.3d at pp. 1164-1165, fn. 14 [a self-represented
defendant may raise ineffective assistance claims that “arise
directly from assisting counsel’s breach of the limited authority
and responsibilities counsel has assumed”]; see also McKaskle
v. Wiggins (1984) 465 U.S. 168, 182 [“Even when he insists
that he is not waiving his Faretta rights, a pro se defendant’s
solicitation of or acquiescence in certain types of participation
by counsel substantially undermines later protestations that
counsel interfered unacceptably”].) These principles reflect
that when an attorney is assigned responsibilities as advisory
counsel, he or she performs as the defendant’s counsel for those
purposes.
      Defendant contends that the language of section 1018 is
clear, unambiguous, and not reasonably susceptible to a
construction that allows advisory counsel to satisfy the
statutory requirements imposed on counsel. We disagree. The
operative portion of section 1018 provides that a capital
defendant who seeks to plead guilty must “appear with
counsel” and have “the consent of the defendant’s counsel.” As
discussed above, advisory “counsel” may be appointed to
handle responsibilities associated with the defense of a case
and is expected to perform the assigned responsibilities in a
professionally competent manner. On its face, the operative
portion of section 1018 does not foreclose an interpretation of
“counsel” that encompasses advisory counsel who has been
assigned to fulfill the responsibilities of counsel under section
1018.
      The dissent observes that the phrase “ ‘right to counsel’ ”
as used elsewhere in section 1018 must “mean[] the right ‘to be
represented by counsel’ ” because the constitutional “ ‘right to

                                  31
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


counsel’ ” sweeps only that far. (Dis. opn. of Liu, J., post, at
p. 2, quoting § 1018; id. at p. 3). True enough. But it does not
follow that the meaning of the word “counsel” is equally
circumscribed. The constitutional “right to counsel” may
contemplate only a particular kind of counsel, but as a
linguistic matter, the word “counsel” (standing alone or in
other contexts) may carry a more expansive meaning. (See,
e.g., McKaskle v. Wiggins (1984) 465 U.S. 168, 181-183 [using
“counsel” as a shorthand for “standby counsel”].) So the
phrase “appear with counsel,” as used throughout section 1018,
is susceptible to a broader interpretation than the dissent
suggests –– even if the phrase “right to counsel” does not
encompass advisory counsel.
      Moreover, “a statute must be construed, if reasonably
possible, in a manner that avoids a serious constitutional
question.” (People v. Engram (2010) 50 Cal.4th 1131, 1161.)
We are presented in this case with a defendant who invoked
his right to represent himself and whose best strategy to avoid
the death penalty was arguably a guilty plea. As we discussed
in Chadd, supra, 28 Cal.3d 739, 751, the high court in Faretta,
supra, 422 U.S. 806, recognized the right of a pro se defendant
to make a defense. Interpreting the operative portion of
section 1018 to bar defendant from pleading guilty would raise
a serious question about whether section 1018 is compatible
with defendant’s constitutional rights under Faretta. By
contrast, if “counsel” is construed to include advisory counsel,
then section 1018 did not forbid defendant’s plea, and we need
not resolve whether it could have done so constitutionally.
      Assigning the responsibilities of counsel under section
1018 to advisory counsel in the case of a defendant who has
exercised the right to self-representation is not inconsistent

                                  32
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


with the purposes of section 1018. “ ‘[S]ection 1018 is obviously
designed to protect defendants by assuring that such a serious
step is a fully informed and competent one, taken only after
consideration with and advice by counsel.’ ” (Chadd, supra,
28 Cal.3d at p. 749.) In addition, the amendment that added
the requirement that counsel consent did so to provide “a
further independent safeguard against erroneous imposition of
a death sentence.” (Id. at p. 750.) By evaluating a case and
advising the defendant with respect to his or her desire to
plead guilty, advisory counsel safeguards against an ill-
considered entry of a guilty plea. Therefore, we conclude that
the term “counsel” in the operative portion of section 1018 is
susceptible of a construction that includes advisory counsel —
and adopt that construction.2



2
      As noted, the word “counsel” appears in portions of
section 1018 not applicable here. Although we ordinarily
construe terms to have the same meaning throughout a
statute, there is no categorical requirement that “ ‘identical
words used in different parts of the same act’ ” must have the
same meaning. (General Dynamics Land Systems, Inc. v. Cline
(2004) 540 U.S. 581, 595; see also People v. Hernandez (1981)
30 Cal.3d 462, 468.) Accordingly, we express no opinion
concerning whether other portions of section 1018 can or
should be construed similarly — let alone how the term
“counsel” should be construed in other contexts. (Cf. People v.
Lightsey (2012) 54 Cal.4th 668, 692-699 [holding that statute
requiring representation by counsel during competency
proceedings did not violate defendant’s right to self-
representation and concluding, without identifying any serious
constitutional question to be avoided, that the statutory
requirement was not satisfied by appointment of advisory
counsel].)



                                  33
                         PEOPLE v. MIRACLE
              Opinion of the Court by Cantil-Sakauye, C. J.


       This case well-illustrates that accepting the consent of
advisory counsel is compatible with the interests served by
section 1018. The court appointed Allen to be defendant’s
advisory counsel and assigned him the responsibility to
evaluate whether defendant should be allowed to plead guilty
to the murder charge and to admit the special circumstance
allegations. Allen, whom the court described as “a very
experienced criminal defense lawyer” and “[m]aybe the most
experienced that we have in Santa Barbara County,” advocated
on behalf of defendant with respect to his access to discovery
materials and the assistance of an investigator. He reviewed
all of the discovery with defendant and evaluated the strength
of the evidence. He presented his views and defendant’s views
to the court, and the court explored those reasons with
advisory counsel and defendant. After months of discussions,
when the trial court finally allowed defendant to plead guilty
and admit the special circumstance allegations, it confirmed
with advisory counsel that he had performed as he would if he
had been appointed as counsel. This process assured that
defendant’s plea was fully informed by advisory counsel’s
evaluation of the case, and the process served as a safeguard
against an erroneous judgment. That defendant conducted the
penalty phase differently than counsel may have (see dis. opn.
of Liu, J., post, at pp. 5, 13) casts no doubt on the reliability of
defendant’s conviction nor on the truth of the special
circumstance allegations that made him eligible for the death
penalty. And section 1018 does not require that the attorney
who consents to a plea may do so only if he or she retains
control over the balance of the proceedings; nothing in section
1018 prohibits a capital defendant who has pleaded guilty from



                                   34
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


substituting counsel or electing self-representation at the
penalty phase.3

                      III. PENALTY TRIAL
      Defendant contends that the restraints placed on him
during the penalty trial and the denial of any writing
instrument violated his right to participate in his own defense,
and his rights to due process, a fair trial, and a reliable
sentencing determination under the Fifth, Sixth, Eighth, and
Fourteenth Amendments and the correlative state
constitutional provisions.
      A. Proceedings Concerning Defendant’s Restraints
       Prior to jury selection, county counsel filed on behalf of
the Santa Barbara County Sheriff’s Department a motion for
an order that defendant be physically restrained during the
trial “by having both of his hands handcuffed within a lockbox,
and to a waist chain, and having both of his legs attached to
leg shackles.” The sheriff’s department also planned to have
additional officers in the courtroom.



3
      Our conclusion also resolves defendant’s contention that
the failure to prohibit him from entering a guilty plea deprived
him of his right under the Eighth Amendment to a reliable,
nonarbitrary sentencing determination, and his due process
liberty interest under the Fourteenth Amendment to the
enforcement of state statutory rights. As explained above, the
process followed by the trial court afforded defendant the
assistance and advice of counsel contemplated by section 1018
in connection with his desire to plead guilty, fulfilling the
Legislature’s purpose of ensuring adequate assistance and
avoiding arbitrary results.



                                  35
                         PEOPLE v. MIRACLE
              Opinion of the Court by Cantil-Sakauye, C. J.


      The motion was supported by declarations of three
corrections officers of the Santa Barbara County Sheriff’s
Department, and copies of inmate discipline reports. Wendy
Shannon’s declaration stated that in mid-October 2004, after
defendant was searched and handcuffed in preparation for
transport to court, he slipped one of his hands out of the
handcuffs, held down another inmate, and repeatedly punched
him. Douglas Todaro’s declaration stated that in late April
2005, defendant had to be extracted from his cell.4 “In order to
subdue Inmate Miracle, the extraction team had to use
chemical spray, a pepperball gun, and two shots from a 50,000-
volt TASER.        Later that day, . . . [defendant] told [the
declarant], ‘I will keep fighting you, until I kill you or until you
kill me.’ [¶] Because of Inmate Miracle’s history of being
aggressive with Corrections Officers, he is housed in a single
person cell and is required to be moved by two Corrections
Officers, and a Corrections Sergeant armed with a TASER, any
time he is removed from his cell.” (Emphasis in original.)
Trevor Carpenter’s declaration stated that in mid-May 2005,
after defendant had refused to comply with Carpenter’s orders,
defendant stated, “ ‘I’m glad that it’s you that fucked with me,
cause I always wanted to slice you up.’ ” The next day,


4
      A recording of the April extraction was played at the
hearing on the motion. Sergeant Tim Morgan, the supervisor
of the special operations team that extracted defendant from
his cell, testified that once the team moved defendant to
another cell, defendant “repetitively asked who we were, that
he was going to get us back, that he was going to, I want to say
use a knife to get us, and I don’t remember the exact wording
of slashing, or something of that nature.”



                                   36
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


Carpenter moved defendant from his cell to a shower. As
Carpenter removed defendant’s handcuffs, defendant pulled a
razor blade from the waistband of his pants, “then turned on
us and slashed out with the razor blade.” With the assistance
of other corrections officers, Carpenter pushed defendant into
the shower room. A team was assembled to extract defendant
from the shower room, but defendant “complied with their
instructions, and turned over a razor and two razor blades that
had been broken out of razor handles and wrapped in tape.”
      At the hearing on the motion, Allen stated that county
counsel had indicated that defendant could have his writing
hand free, but Allen was concerned that defendant could not
hold paper steady while writing unless his other hand was
free, and that having a hand shackled to his stomach for long
hearings would be very uncomfortable. Allen also stated that
defendant had been polite and well behaved in the courtroom.
The court directed defendant to raise his arms, and observed
that defendant would not be able to write with the lockbox on
him. It then asked county counsel whether he was concerned
about defendant having a sharp object for writing, and county
counsel indicated that the risk could be mitigated with a short
pencil. Before taking a break to allow defendant to read the
motion, the court commented that based on what it had read, it
was not inclined to allow defendant to have either hand free.
Instead, short breaks could be taken when defendant wanted
to communicate with Allen. Thereafter, county counsel stated
that if the court concluded that defendant needed to have a
hand free for writing, the sheriff’s department believed
defendant could be adequately restrained with his nonwriting
hand handcuffed to a waist belt and his legs shackled, with the
presence of additional deputies near him.


                                  37
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


       Following these discussions and after a video recording of
the April cell extraction was played for the trial court, county
counsel urged that there was a manifest need for defendant to
be shackled and for one hand to be cuffed and attached to a
waist belt. He added that the sheriff’s department did not
think these restraints could be concealed from the jury, given
the position of the jury box in relation to defendant’s chair, and
the fact that defendant intended to wear his jail uniform.
Allen noted that although the recorded cell extraction was
“fairly violent,” the court should keep in mind that the incident
had occurred in April, defendant had behaved like a
“gentleman” in court, and it had been the officers, not
defendant, who used force in the recorded incident.
       The court observed that there must be a manifest need
for shackling, and noted the concern about the visibility of
shackles during the penalty phase. It stated that “by his own
choice and decision, he’s going to be wearing jail clothing. So
the jury is obviously going to know that he’s in shackles.” It
explained to defendant, “You’ve attacked fellow inmates, you’ve
attacked corrections officers, you’ve threatened to kill
correction    officers,  you’ve    actually   either    created,
manufactured or found a razor blade and attempted to slash
officers with a razor blade. So there is just no question
whatsoever in my mind that there is an exceedingly compelling
manifest need and special need for shackling in this case.
There’s just absolutely no question about it.” It added that it
was “quite concerned about putting any sort of an instrument
in your hand that can be used in any form or fashion as a
weapon, and at this point in the proceedings I’m not going to
permit it.” It further noted that the courtroom was small; it
estimated that defendant was about eight feet from the court


                                  38
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


reporter and about ten feet from the clerk. It ordered that
defendant be shackled as proposed in county counsel’s motion,
and stated that perhaps the issue could be revisited during the
trial. With respect to defendant’s need to communicate with
his advisory counsel, the court stated that he could whisper to
him or more frequent breaks could be taken.
      Allen informed the court that the lockbox was
“particularly uncomfortable for long periods of time,” and
asked that defendant instead be placed in handcuffs “threaded
through the waist chain.” County counsel responded that the
lockbox would prevent defendant from escaping from his
handcuffs. The court concluded that in light of the incident in
which defendant escaped from his handcuffs and battered a
fellow inmate, he should be in a lockbox while in the
courtroom, and that if it was uncomfortable, breaks could be
taken.
      Allen then informed the court that defendant suggested
the alternative of an electric belt. County counsel observed
that the use of such belts was criticized in People v. Mar (2002)
28 Cal.4th 1201, and the sheriff’s department had chosen not
to obtain such belts. Allen responded that he thought a belt
could be borrowed from Los Angeles County, and that this case
differed from People v. Mar because defendant was requesting
a belt as a preferred alternative. In response to an inquiry
from the court, Allen confirmed that he thought the court
should allow defendant’s hands to be free if he wore an electric
belt. The court responded that it was concerned for Allen’s
safety because he was in close proximity to defendant, so it
would not permit defendant to have his hands free to write.
Allen then asked the court to consider the approach taken in a
prior case in which the defendant’s hands were free, but the leg

                                  39
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


chain was fastened to the underpinnings of the table so that
the defendant could not get up without taking the table with
him. The court stated that if defendant wanted to make a
written motion to change the restraints, the motion should
focus on why oral communication between Allen and defendant
was not effective. The discussion concluded with Allen stating
for the record that he trusted defendant “absolutely not to hurt
me. He knows I’m on his side, he knows I’m not going to
betray him or do something evil to him. And I feel likewise
about him.”
      At a subsequent pretrial hearing, Allen voiced his
concern that defendant would be unable to take notes, and
suggested adjustments in the shackles that might allow him to
write. Following discussions, the court suggested that the
defense investigator sit by defendant and write down whatever
comments he made to her. Allen stated that the investigator
would be happy to do that. The court stated that it would not
allow defendant to have a pen or pencil, but it would take steps
to insure defendant could have notes taken, including taking
more frequent breaks. Allen then expressed concern that the
shackling configuration caused defendant muscle cramps, and
defendant added that “[t]his is a very stiff position for me to be
in for any length of time.” County counsel suggested that the
lockbox could be removed during breaks, and the court
suggested that the way the lockbox was affixed could be varied
over the course of a day. Defendant suggested fastening an eye
bolt to the table and running his chain through it, which would
allow him a greater range of motion. He stated that the
lockbox forced him to lean forward, and that his body,
especially his neck, was stiff after one or two hours. Defendant
confirmed that it helped to stand, and the court once again


                                  40
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


proposed that they take more frequent breaks. The court
added that based on its observations of defendant over a
number of days, it did not appear to the court that his
discomfort rose to the level of a violation of his legal rights.
      With respect to defendant’s proposal to be bolted to the
table, county counsel opined that the one-inch piece of wood
would not hold defendant. The court added that it was
concerned about what the jury would see if defendant were
chained to the table. “You’ve chosen here to be in jail clothing,
so they’re going to know you’re in custody, and they’re going to
know that you’ve been convicted of first degree murder with
special circumstances. To have handcuffs on your hands, and
that’s really all that appears to look like to me, to have
handcuffs on your hands and a chain around your legs I don’t
think causes the sort of prejudice in the eyes of the jury that
chaining you to a table might do.” In the court’s view, chaining
him to the table would be like chaining a rabid dog to a fence.
The court also observed that defendant could raise both hands
together, move his feet back together, and separate his knees.
      A week later, Allen asked to have the lockbox removed
when defendant was in his cell during court breaks, because
the box caused muscle cramps. The court stated that removal
of the box was not necessary “in terms of the representation of
himself,” and left it to the sheriff’s department to decide if the
box could be moved without security concerns. The bailiff
stated that they did not always have a key available, and a
deputy stated that three bailiffs were required to unlock him
and lock him again, which would hold up the proceedings. The
court then stated, “I think that’s your answer.”




                                  41
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


       Two days later, defendant threatened corrections officers
and acted violently when he was being moved from the holding
cell to the courtroom, and he was returned to jail rather than
brought to court. Voir dire was cancelled for the day. The next
day, the court warned defendant that it was considering
revoking his in propria persona status. Allen stated that
defendant wanted to know if he could choose not to be present
at some points in order to avoid being in restraints. The court
expressed concern with his desire to avoid court, given that he
was representing himself. The defense investigator stated that
she had bought thermal shirts with thick wristbands to
alleviate the pain, but defendant was not allowed to wear
them. She had also obtained thicker socks and shoes that
would be more comfortable. The court directed that defendant
wear the shirt and wristbands to the next court session, unless
county counsel wanted to explain to the court how these
articles would impact security, and stated that it would
address the issue of shoes later.
       The following week, a deputy described to the court
defendant’s earlier misconduct in the courthouse holding cell,
and stated that defendant’s grievance that day had been
related to discomfort from the shackles, which he claimed were
too tight. County counsel informed the court that the proposed
padding on defendant’s wrists, with long sleeves or wristbands,
would substantially increase the risk of escape from the
lockbox. He further reported that defendant was restrained
with a new system that day, employing hand restraints at each
side of the waist chain and another set of handcuffs attached at
the front of the waist chain. He also had ankle cuffs attached
by chain. If this setup was to be used rather than the more
secure lockbox, counsel explained, an additional deputy would


                                  42
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


be present. At the court’s request, defendant demonstrated his
range of motion, and the court expressed concern “about any
system of restraints that allows any possibility of violence
occurring in this courtroom.” County counsel responded that
the new configuration “would provide adequate, although less
security than the lockbox,” and suggested that the court accept
the new configuration, but further provide that “if there’s any
further nonconforming behavior” by defendant, the lockbox
would be used. The court agreed with this proposal, and also
allowed defendant to wear thicker socks.
      In sum, defendant was shackled with a lockbox through
all but one day of jury selection, and was shackled with triple
handcuffs, a waist chain, and leg chains for the rest of the
proceedings. The shackles were visible to the jury. The court
instructed the jury that “[t]he fact that physical restraints
have been placed on defendant . . . must not be considered by
you for any purpose. You must not speculate as to why
restraints have been used in determining the issues in this
case. Disregard this matter entirely.”
      B. Analysis of the Propriety of Defendant’s
         Restraints
      “In general, the ‘court has broad power to maintain
courtroom security and orderly proceedings’ [citation], and its
decisions on these matters are reviewed for abuse of discretion.
[Citation.] However, the court’s discretion to impose physical
restraints is constrained by constitutional principles.” (People
v. Lomax (2010) 49 Cal.4th 530, 558-559.) The federal
“Constitution forbids the use of visible shackles during the
penalty phase, as it forbids their use during the guilt phase,
unless that use is ‘justified by an essential state interest’ —
such as the interest in courtroom security — specific to the

                                  43
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


defendant on trial.” (Deck v. Missouri (2005) 544 U.S. 622,
624.) Similarly, “[u]nder California law, ‘a defendant cannot
be subjected to physical restraints of any kind in the courtroom
while in the jury’s presence, unless there is a showing of a
manifest need for such restraints.’ ” (People v. Lomax, supra,
49 Cal.4th at p. 559.)
      “ ‘[W]e will not overturn a trial court’s decision to
restrain a defendant absent “a showing of a manifest abuse of
discretion.” ’ [Citation.] To establish an abuse of discretion,
defendants must demonstrate that the trial court’s decision
was so erroneous that it ‘falls outside the bounds of reason.’
[Citations.] A merely debatable ruling cannot be deemed an
abuse of discretion. [Citations.] An abuse of discretion will be
‘established by “a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.” ’ ”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
390.)
      Defendant does not establish that the trial court abused
its discretion in finding a manifest need for the physical
restraints based on security concerns particular to defendant.
When the trial court made its initial ruling, it had before it
evidence of four violent incidents while defendant was in
custody. In October 2004, defendant had slipped out of one
handcuff and attacked another prisoner. In April 2005, in
separate incidents, he had to be extracted from his cell, and he
attempted to attack another inmate. In May 2005, defendant
stated that he wanted to slice a corrections officer, and the
next day, he slashed at officers with a razor blade. Because of
his aggressive behavior in jail, he was accompanied by two
corrections officers and a sergeant with a Taser whenever he

                                  44
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


was moved. The fact that these incidents occurred outside of
the courtroom does not diminish their relevance or their
support for the trial court’s order. (People v. Hawkins (1995)
10 Cal.4th 920, 944 [evidence need not show disruption in
courtroom proceedings or attempt to escape; when there were
“multiple instances of violent and nonconforming behavior
while in jail, as well as an extensive background of criminal
and violent activity, we will generally not second-guess the
trial court’s decision”].) Finally, the trial court was aware that
the shackles would be visible, and acknowledged this fact when
it made its ruling.5 (See Deck v. Missouri, supra, 544 U.S. 622,
629 [use of physical restraints “visible to the jury” must be
justified].)
       Defendant contends the restraints were excessive. He
cites county counsel’s statement that “we believe that with the
combination of legs shackled together and Mr. Miracle’s non-
writing hand restraining to a waist belt, his writing hand could
be free so long as there were additional deputies nearby.” The
court inquired whether county counsel had any concern with
respect to the fact that defendant would have a sharp object.
Counsel responded, “We do have that concern, . . . and believe
that we can mitigate that by providing him with, essentially, a
golf pencil, a short object that wouldn’t be as effective as a
stabbing weapon.” The trial court responded that it was “not

5
      The trial court observed when it made its ruling that
defendant’s choice to wear prison clothes made it impossible to
hide the shackles. With respect to his choice of clothing,
defendant asserts only that the fact he “chose to appear in his
prison clothes did not diminish the prejudicial effect of his
shackles.”



                                  45
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


inclined to allow Mr. Miracle to have any hand free based on
what I’ve read.” When the possibility of giving defendant a golf
pencil was raised again a few weeks later, the court stated that
golf pencils “may be short, but I think they can be gripped
enough to cause fairly significant damage or injury.”
      The trial court has broad discretion to evaluate the
evidence and determine the appropriate security measures in
the courtroom. (People v. Stevens (2009) 47 Cal.4th 625, 642.)
The fact that the sheriff or county counsel believed that the
risk of freeing one hand and giving defendant a writing
instrument could be adequately mitigated by providing
additional deputies and giving defendant a short pencil does
not establish that the trial court abused its discretion in
deciding that defendant’s hands should be restrained and he
should not have any sharp object in his hand.
      Defendant also contends that restraining his hands and
wrists interfered with his ability to participate in his defense.
First, he cites a statement by Allen that it was very difficult for
defendant to handle and read papers in his holding cell with
the lockbox on. The discussion that followed, however, focused
solely on whether defendant could write. The trial court
examined the restraint, and noted that defendant’s hands and
fingers were free, but agreed that he could not write with the
lockbox on. Thereafter, the court suggested that the defense
investigator could sit by defendant and transcribe his
comments, and Allen stated that the investigator would be
happy to do so. The record does not establish that defendant
could not review documents or dictate notes while the lockbox
was on his wrists. In addition, at the hearing when the court
decided to allow the use of three handcuffs instead of the
lockbox, the trial court asked defendant to take his hands

                                  46
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


apart and move them up and down to demonstrate the
additional range of motion. Following this demonstration,
county counsel observed that defendant could raise the waist
chain “some inches” and had “some arc with each hand.”
      Second, defendant asserts that he “had reason to believe
his privileged, oral communications with Mr. Allen or [the
defense investigator] would be overheard.” In support, he cites
the trial court’s description of the courtroom as being small,
with defendant seated “in very close proximity” to court
personnel. The court’s comments, which noted that the bailiffs
were “close by,” the court reporter was “probably eight feet
away from you,” and the clerk was “probably ten feet away
from you,” were made in the course of explaining why it would
be dangerous to give defendant a pencil. There is no evidence
that others would overhear if defendant whispered to the
defense investigator or spoke to Allen and the investigator
during breaks.
       Third, defendant focuses on the physical discomfort he
experienced as a result of the shackles. The discomfort was
apparently due in part to the fact that the sheriff’s department
did not remove the lockbox while defendant was in a holding
cell. In general, security arrangements in the custodial setting
are determined by the officials who run the institution, not the
court. (See People v. Roberts (1992) 2 Cal.4th 271, 307.) Here,
however, the use of the lockbox in the holding cell arguably
may be attributed to the trial court’s order, because the
sheriff’s department apparently would not have used a lockbox
absent the trial court’s order; the lockbox remained on due to
the procedures required to remove it, not necessarily due to
security concerns in the jail.



                                  47
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


      Given the evidence presented to the trial court
concerning defendant’s violent behavior, the trial court’s
decision to continue the use of the lockbox, despite the fact it
would remain on defendant while he was in the holding cell,
was not an abuse of discretion. The trial court articulated its
concrete concerns regarding the risk of allowing defendant to
have a free hand. In addition, it noted that “just based on my
observations in court and having watched you over a number of
days it doesn’t appear to be that it’s the type of discomfort or
pain that rises to the level of a violation of due process or a
violation of your legal rights.” Finally, use of the lockbox was
discontinued as of the last day of jury selection, and defendant
did not thereafter complain of pain. He asserts it would have
been futile to complain about the new configuration of
shackles, but the record reflects that the court was open to
considering adjustments to the security measures.
     Even if any aspect of the security arrangements had been
excessive, defendant fails to establish prejudice under any
standard.6 Prejudice may be shown if shackles impaired or

6
      “[W]here a court, without adequate justification, orders
the defendant to wear shackles that will be seen by the jury,
the defendant need not demonstrate actual prejudice to make
out a due process violation. The State must prove ‘beyond a
reasonable doubt that the [shackling] error complained of did
not contribute to the verdict obtained.’ Chapman v. California,
386 U.S. 18.” (Deck v. Missouri, supra, 544 U.S. at p. 635.)
The Attorney General observes that we have never held that
excessive shackling alone establishes prejudice, and he
contends that where there is adequate justification for
restraints, and the claim is that the restraints are excessive,
the Chapman standard does not apply. Instead, the Attorney
General urges us to apply the Watson standard — whether “it



                                  48
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


prejudiced a defendant’s right to participate in the trial.
(People v. Anderson (2001) 25 Cal.4th 543, 596 (Anderson).) As
we have noted, defendant wore the lockbox only until the last
day of jury selection. Five days before jury selection began, he
informed the court that “I still have no intention of taking an
active role in the selection of the jury.” The court observed
that there might be times when Allen offered his opinion to
defendant that some question should be asked of a prospective
juror, and stated that “anytime you want a moment so that the
two of you can talk I’ll give you that moment,” but in response
to a question from the prosecutor, the court confirmed that it
was not likely that the court would allow both Allen and
defendant to engage in voir dire. As noted above, once use of
the lockbox was discontinued, the shackles did not appear to
cause pain or interfere with defendant’s participation.
      With respect to the fact the shackles suggested to the
jury that defendant was a dangerous person, we note that the
jury was presented with extensive and dramatic evidence of
defendant’s violent conduct while incarcerated. Testimony was
presented concerning three violent incidents that occurred in
the seven months before jury selection was completed. In
addition, the parties stipulated to a summary description of 27
other incidents of violence or threats. This evidence of his
violent tendencies, which is summarized below, was far


is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, it is
clear beyond a reasonable doubt that no aspect of the shackling
affected the judgment. Therefore, we need not resolve this
contention.



                                  49
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


stronger than any inference the jury might have drawn from
the shackles regarding his dangerous character.
      The most recent episode occurred in late November 2005,
in the holding facility at the courthouse during the jury
selection phase. Jesse Ybarra, a senior deputy with the Santa
Barbara County Sheriff’s Department, testified that defendant
was in an individual holding cell for his safety and the safety of
others. When the officers were ready to transport him, they
put shackles on him. When defendant complained that the
shackles were too tight, Ybarra had an officer re-check them.
That officer thought the shackles were on properly, and that
“Mr. Miracle was just playing a game to get the shackles real
loose.” As the officers completed putting the shackles on
defendant, defendant began swearing and threatening to hurt
the officers. The officers then escorted him down the hallway
to be taken to court. Ybarra testified that “we had a minimum
of three people moving Mr. Miracle at one time, if not four, just
due to safety and precautions . . . .” Defendant continued to
yell loudly, use profanity, and make threats, and he was
returned to his cell rather than taken to court.7
      Four days earlier, defendant’s misconduct led to a violent
cell extraction. Defendant had put up a sheet that prevented

7
      On cross-examination, Ybarra confirmed that on the day
of the incident defendant was complaining that he was in pain
from the shackles. Ybarra further confirmed that adjustments
had subsequently been made to address the issue, with the
result that “everybody [was] getting along a little better . . . .”
The problem on that particular day apparently had been that
the waist chain was too tight, rather than that the lockbox was
placed on defendant incorrectly.



                                  50
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


officers from seeing him. Jeffrey Bradshaw, a corrections
officer, testified that when he opened the outer door, he “felt a
gush of liquid all over my body and Mr. Miracle said, ‘Get the
fuck out of my cell.’ ” David Panel, a senior corrections officer
at the jail, testified that defendant refused to come out of his
cell peacefully, and “had actually prepared himself for battle.
He had put a sheet around his property box lid . . . to block
anything that may be coming his way. He used plastic . . . that
he got from a sandwich bag or something, [to make] goggles
. . . .” In addition, he tied the door shut with blankets and
sheets. Defendant told staff that they were not allowed to go
into his “private” cell. When defendant refused to lie down,
Officer Panel fired numerous pepper balls at defendant’s legs,
and then at defendant’s shoulders when defendant pulled up a
mattress to protect his body. Panel continued to fire pepper
balls as four officers entered the cell to try to restrain
defendant. Defendant continued to fight, and Officer Panel
entered the cell with a Taser. Using the drive stun, he stunned
defendant for five seconds, and was able to get defendant’s
right arm behind his back. He stunned defendant for two more
seconds and got his other hand behind his back and cuffed him.
     The most dramatic evidence of defendant’s violent
conduct was related to the cell extraction that occurred in April
2005.8 The jury was shown the recording of the incident,


8
      At one point in the proceedings, the prosecutor referred
to the cell extraction video as being of an event in May, and the
briefing refers to a video of an extraction in May, but the
recorded extraction took place in April 2005.




                                  51
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


which had earlier been shown to the trial court in support of
the motion for restraints. The recording reflected a very
violent confrontation with six officers. As the recording was
played, Officer Panel explained that defendant had put items
on the window to his cell, obscuring the officers’ view.
Approximately eight hours after negotiations were initiated
with defendant, Panel administered a chemical agent through
the slot in the cell. The chemical agent makes skin feel hot
and attacks the mucous membranes of the mouth and nose.
Defendant used a box lid to keep Panel from putting more of
the chemical through the slot. In response, an officer used a
baton to keep the slot from being blocked. The officers waited
to allow the chemical to have some effect, and then opened the
cell door. Defendant rushed out and attempted to strike
officers, one of whom used a Taser against him. Handcuffs
were placed on his wrists, and a hobble was placed on his legs
so he could not kick or pull his feet apart.
     Finally, an investigator with the district attorney’s office
read a stipulated list of 27 incidents in which defendant acted
in a violent or threatening manner,9 and then read more


9
      The list identified the following incidents. (1) January
1993, defendant fought with another inmate in a juvenile
placement.     (2) July 1993, defendant and other inmates
attacked a rival gang member in a juvenile placement.
(3) January 1994, defendant was involved in a gang fight in
custody. (4) February 1994, defendant challenged another
inmate to a fight. (5) August 1994, defendant threatened an
inmate with violence. (6) August 1994, defendant threatened
a rival gang member with violence.            (7) August 1994,
defendant fought with another inmate, and struggled and
physically resisted when staff took him to his room.



                                  52
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.




(8) August 1994, defendant assaulted another inmate.
(9) October 1994, defendant assaulted a corrections officer,
and was convicted of felony battery on a peace officer with
injury. (10) and (11) April 1995 and May 1995, defendant
fought with another inmate at the California Youth Authority
(CYA). (12) December 1995, defendant stated that he enjoys
physical violence and physical altercations. (13) December
1995, defendant committed battery on emergency personnel,
and was convicted of felony assault causing great bodily injury
on a youth counselor/peace officer at CYA. (14) August 1999,
defendant attacked another inmate.             (15) October 2000,
defendant threatened a member of the staff of the Department
of Corrections and Rehabilitation with bodily injury.
(16) October 2000, defendant slipped handcuffs, attacked an
inmate, and caused injury to the corrections officer who
subdued him. (17) September 2001, defendant and two others
attacked a fourth inmate. (18) November 2003, defendant
committed spousal battery on his girlfriend, and pleaded guilty
to willful infliction of corporal injury (§ 273.5). (19) May 2004,
defendant was convicted of threatening a witness to an
Eastside Gang crime. (20) October 2004, defendant slipped a
handcuff while in line for the bus to court, and assaulted and
injured another inmate in line, who was handcuffed.
(21) October 2004, defendant stated to correctional officers in
county jail, “if I’m going to do what I need to do, I don’t care
what you fuckers do, this is my fucking house, you
motherfuckers just work here.” (22) April 2005, defendant
tried to attack another inmate in the county jail. (23) April
2005, defendant barricaded himself in his cell, was extracted
by pepper spray and force, and tried to assault correctional
officers during extraction. (24) April 2005, defendant told
corrections staff that he would keep fighting them until he
killed all of them or they killed him. (25) May 2005, in the
county jail, defendant threatened to “slice up” corrections staff.
(26) May 2005, while being escorted to the shower, defendant
tried to assault county jail corrections staff with razor blades
he hid in his underwear. (27) August 2005, defendant stated



                                  53
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


detailed descriptions of some of the incidents.            The 27
incidents, spanning from 1993 to August 2005, included the
incident in May 2005 involving razor blades. The evidence also
reflected statements defendant made regarding his intention to
kill all of the corrections staff, to “go off on random corrections
officers,” and to build a reputation for when he was sent to
prison.
     In advancing his argument that he was prejudiced by the
shackling, defendant focuses on the evidence of the
circumstances of the crime, particularly Ibarra’s role in the
murder, and the fact that the jury sent the court a note with
nine questions regarding the crimes and defendant’s
background.10 He contends that these factors demonstrate



that he was willing to “go off on random corrections officers,”
and was building his reputation to go with him to state prison.

10
      The questions from the jury were received by the court on
December 19, 2005, and were not answered before the jury
returned its verdict the same day. The jury’s questions were:
“1. Is there a document signed by Mr. Miracle that says he
was the one who used the knife to kill Mr. Silva?
“2. What day was Mr. Miracle apprehended and where (city)?
“3. Can you give us Mr. Miracle’s age and the year he first
started disobeying the laws? What was the offense?
“4. Can you give us some personal background on Mr. Miracle?
(family life, schooling, his children [and] wife, if any, family
support system)?
“5. Where does Mr. Gilrada [sic] (witness that Mr. Miracle had
at knifepoint to his throat) work? What type of work does he
do? Was he employed at the time of the murder?



                                  54
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


that the jury might have returned a sentence of life without
the possibility of parole absent the shackling. Certainly, the
death verdict was not a foregone conclusion, but in light of the
extensive and graphic evidence of defendant’s violence while
incarcerated, the inference to be drawn from the shackling
regarding defendant’s violent tendencies could not have made
any difference in the jury’s evaluation of the evidence.
Defendant also cites the prosecutor’s argument to the jury that
defendant was dangerous, but as noted above, the evidence
presented at the penalty trial that defendant was dangerous
provided compelling support for the argument, regardless of
whether defendant was in visible restraints.
      In sum, the trial court did not abuse its discretion in
ordering the shackling used in this case, and defendant does
not establish that the shackles impaired his ability to
participate in the proceedings or prejudiced him in the eyes of
the jury. (Anderson, supra, 25 Cal.4th at p. 596 [because the




“6. What happens when you use crystal meth? How long does
it impact a person? Does it agitate someone? Would a person
know what they’re doing while under its influence?
“7. Will the testimony of this trial be used in the trial of Mr.
Ybarra [sic]?
“8. You showed a video of Mr. Ybarra [sic] in a grocery store
picking up various items. Were the items important to this
case? Other than Gil stating it was Mr. Ybarra [sic] was there
any other importance to this video?
“9. What holds more weight — what a witness states under
oath or what a witness signs as to what happened to be the
truth?”



                                  55
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


physical restraints did not impair the fairness of the trial, they
caused no prejudice].)

          IV. CHALLENGES TO CALIFORNIA’S JURY
        INSTRUCTIONS AND DEATH PENALTY STATUTE
      Defendant raises a number of challenges to California’s
death penalty scheme and standard jury instructions that, he
acknowledges, we have previously considered and rejected.
Because he identifies no reason to reconsider our prior
holdings, we will briefly reiterate our relevant holdings below.
     “The death penalty is not unconstitutional for failing to
meaningfully narrow the class of murderers eligible for the
death penalty.” (People v. Henriquez (2017) 4 Cal.5th 1, 45
(Henriquez).)
      “Section 190.3, factor (a), which permits the jury to
consider the circumstances of a defendant’s crime in
determining whether to impose the death penalty, does not
license the jury to impose death in an arbitrary and capricious
manner in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.” (People v.
Simon (2016) 1 Cal.5th 98, 149 (Simon).)
      The death penalty is not unconstitutional on the ground
that it does not require “findings beyond a reasonable doubt
that an aggravating circumstance (other than Pen. Code,
§ 190.3, factor (b) or factor (c) evidence) has been proved, that
the aggravating factors outweighed the mitigating factors, or
that death is the appropriate sentence.” (People v. Rangel
(2016) 62 Cal.4th 1192, 1235.) “This conclusion is not altered
by the United States Supreme Court’s decisions in Apprendi v.
New Jersey (2000) 530 U.S. 466 . . . and Ring v. Arizona (2002)
536 U.S. 584 . . . .” (Simon, supra, 1 Cal.5th at p. 149.)


                                  56
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


      “The federal Constitution does not require that a burden
of proof be placed on the prosecution at the penalty phase.
[Citation.] Nor did the trial court err by failing to tell the jury
that there was no burden of proof. [Citation.] ‘Unlike the guilt
determination, “the sentencing function is inherently moral
and normative, not factual” [citation] and, hence, not
susceptible to a burden-of-proof quantification.” (Henriquez,
supra, 4 Cal.5th at p. 45.)
      “The federal Constitution does not require that the jury
agree unanimously on which aggravating factors apply.
[Citation.] This does not violate a capital defendant’s right to
equal protection of the laws.        ‘[C]apital and noncapital
defendants are not similarly situated and therefore may be
treated differently without violating constitutional guarantees
of equal protection of the laws or due process of law.’ ”
(Henriquez, supra, 4 Cal.4th at p. 45.)
       “ ‘CALJIC No. 8.88 properly instructs the jury on its
sentencing discretion and the nature of its deliberative
process.’ [Citation.] Its instruction that ‘jurors may impose a
death sentence only if the aggravating factors are
“ ‘so substantial’ ” is not impermissibly vague or ambiguous.’
[Citation.] ‘CALJIC No. 8.88 is not constitutionally flawed
because it “uses the term ‘warrants’ instead of ‘appropriate.’ ” ’
[Citation.] Nor is it ‘unconstitutional for failing to inform the
jury that if the mitigating circumstances outweigh those in
aggravation, it is required to return a sentence of life without
the possibility of parole.’ ” (People v. Jones (2017) 3 Cal.5th
583, 619-620 (Jones).)
      “ ‘CALJIC No. 8.85 is both correct and adequate.’
[Citation.] Its inclusion of such adjectives as ‘extreme’ and


                                  57
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


‘substantial’ in the list of potential mitigating factors did not
prevent the jury from considering mitigating evidence.
[Citation.] The trial court properly instructed ‘the jury in the
language of CALJIC No. 8.85 without deleting certain factors
that were inapplicable to defendant’s case.’ [Citation.] The
trial court had no obligation to advise the jury which
sentencing factors were aggravating, which were mitigating, or
which could be either aggravating or mitigating depending on
the jury’s appraisal of the evidence.” (Jones, supra, 3 Cal.5th
583, 620.) “The phrase ‘whether or not’ in section 190.3,
factors (d)–(h) and (j) does not unconstitutionally suggest that
the absence of a mitigating factor is to be considered as an
aggravating circumstance.” (People v. Wall (2017) 3 Cal.5th
1048, 1073; see People v. Cook (2006) 39 Cal.4th 566, 618.)
      “We have repeatedly held that ‘ “[t]he trial court’s failure
to [instruct] the jury that there is a presumption of life does
not violate a defendant’s constitutional rights to due process, to
be free from cruel and unusual punishment, to a reliable
determination of his sentence, and to equal protection of the
law under the Fifth, Eighth and Fourteenth Amendments to
the federal Constitution.” ’ ” (People v. Cage (2015) 62 Cal.4th
256, 293-294.)
      “The penalty phase jury is not required by the federal
Constitution to make written findings. [Citation.] This
conclusion is not altered by the high court’s decision in Hurst v.
Florida (2016) 577 U.S. ___ [136 S.Ct. 616].” (Henriquez,
supra, 4 Cal.5th 1, 45-47.)
     “The federal Constitution does not require intercase
proportionality review.” (Henriquez, supra, 4 Cal.5th at p. 46.)




                                  58
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


      “ ‘California does not deny capital defendants equal
protection of the law by providing certain procedural
protections to noncapital defendants that are not afforded to
capital defendants.’ ” (Henriquez, supra, 4 Cal.5th at p. 46.)
     “ ‘International norms and treaties do not render the
death penalty unconstitutional as applied in this state.’ ”
(Henriquez, supra, 4 Cal.5th at p. 47.)

                    V. CUMULATIVE ERROR
      Defendant contends the cumulative effect of errors
requires reversal. We have found no errors. In addition, the
only prejudice we have analyzed is the prejudice defendant
claims exists with respect to his shackling, and we have
concluded that he suffered no prejudice.

                    VI. RESTITUTION FINE
       The trial court ordered defendant to pay an aggregate
amount of $3,401.12 to four victim restitution funds. It also
ordered two restitution fines of $10,000 each, pursuant to
sections 1202.4 and 1202.45. The fine imposed under section
1202.4, which relates to postrelease supervision, was stayed.
In a separate case arising from defendant’s conduct while in
jail, the court ordered him to pay restitution fines of $2,400
each pursuant to sections 1202.4 and 1202.45, with the fine
under section 1202.45 stayed. The total amount of fines that
are not stayed is $15,801.12. Defendant did not object to these
orders.
      Defendant contends the restitution fines under section
1202.4 should be reduced to the statutory minimum of $200
because the trial court did not consider whether defendant was
able to pay the sums imposed, and he is unable to pay a fine of


                                  59
                        PEOPLE v. MIRACLE
             Opinion of the Court by Cantil-Sakauye, C. J.


more than $200. At the time the fines were imposed, section
1202.4 provided that “[t]he restitution fine shall be set at the
discretion of the court and commensurate with the seriousness
of the offense, but shall not be less than two hundred dollars
($200), and not more than ten thousand dollars ($10,000), if
the person is convicted of a felony.” (Former § 1202.4, subd.
(b)(1), Stats. 2005, ch. 240, § 10.5, p. 2516.) It further provided
that “[t]he court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and
states those reasons on the record. A defendant’s inability to
pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be
considered only in increasing the amount of the restitution fine
in excess of the two-hundred dollar ($200) . . . minimum.”
(Former § 1202.4, subd. (c).)
      Because defendant did not object to the fine at his
sentencing hearing, he has forfeited his challenge. (People v.
Gamache (2010) 48 Cal.4th 347, 409.) Furthermore, as in
Gamache, we find that the claim fails on the merits because
defendant does not establish an inability to pay. He contends
his indigence is established by the fact that he was appointed
counsel and provided funds for expert witnesses and
investigators, and because he assertedly has no earning
potential. However, the fact that he could not afford the cost of
the defense in a capital case does not establish that he cannot
pay these fines. As in Gamache, defendant does not “identify
anything in the record indicating the trial court breached its
duty to consider his ability to pay” (ibid.), and because “the
trial court was not obligated to make express findings
concerning his ability to pay, the absence of any findings does
not demonstrate it failed to consider this factor. Thus, we


                                  60
                           PEOPLE v. MIRACLE
               Opinion of the Court by Cantil-Sakauye, C. J.


cannot say on this record that the trial court abused its
discretion” (ibid.).

                           VII. CONCLUSION
       The judgment is affirmed.


                                          CANTIL-SAKAUYE, C. J.


We Concur:

CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
IKOLA, J.*




*
       Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.




                                     61
                     PEOPLE v. MIRACLE
                            S140894


               Dissenting Opinion by Justice Liu


      Penal Code section 1018 says no guilty plea to an offense
punishable by death or life imprisonment without the
possibility of parole “shall be received from a defendant who
does not appear with counsel, nor shall that plea be received
without the consent of the defendant’s counsel.” Today’s
opinion concludes that the word “counsel” in this sentence
encompasses advisory counsel, such as the attorney appointed
to advise the capital defendant in this case. (Maj. opn., ante, at
pp. 26–35.) But it is evident from a careful reading of the
entire statute that the word “counsel” has its natural meaning.
It means an attorney who represents the defendant; it does not
encompass advisory counsel. Because the court’s contrary
construction erodes the important safeguard against erroneous
imposition of the death penalty that section 1018 provides, I
respectfully dissent.
                                I.
      Penal Code section 1018 provides in full: “Unless
otherwise provided by law, every plea shall be entered or
withdrawn by the defendant himself or herself in open court.
No plea of guilty of a felony for which the maximum
punishment is death, or life imprisonment without the
possibility of parole, shall be received from a defendant who
does not appear with counsel, nor shall that plea be received
without the consent of the defendant’s counsel. No plea of
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


guilty of a felony for which the maximum punishment is not
death or life imprisonment without the possibility of parole
shall be accepted from any defendant who does not appear with
counsel unless the court shall first fully inform him or her of
the right to counsel and unless the court shall find that the
defendant understands the right to counsel and freely waives
it, and then only if the defendant has expressly stated in open
court, to the court, that he or she does not wish to be
represented by counsel. On application of the defendant at any
time before judgment or within six months after an order
granting probation is made if entry of judgment is suspended,
the court may, and in case of a defendant who appeared
without counsel at the time of the plea the court shall, for a
good cause shown, permit the plea of guilty to be withdrawn
and a plea of not guilty substituted. Upon indictment or
information against a corporation a plea of guilty may be put
in by counsel. This section shall be liberally construed to effect
these objects and to promote justice.” (All undesignated
statutory references are to the Penal Code.)
      Let us focus on the second and third sentences of the
statute. These sentences have parallel structure. The second
sentence applies to defendants facing the death penalty or life
imprisonment without parole, whereas the third sentence
applies to defendants facing lesser sentences. The third
sentence speaks of “the right to counsel” and waiver of that
right by a defendant’s informed, voluntary, and express
statement in open court that “he or she does not wish to be
represented by counsel.” In other words, “the right to counsel”
means the right “to be represented by counsel.” Further, a
defendant seeking to plead guilty must “appear with counsel
unless” the defendant validly waives “the right to counsel.”


                                 2
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


The text of the statute leaves no doubt that “counsel,” in all of
its usages in the third sentence, means an attorney who
represents the defendant. “Attorneys serving in an advisory or
standby capacity do not ‘represent’ the defendant . . . .” (People
v. Lightsey (2012) 54 Cal.4th 668, 692; see ibid. [interpreting
the phrase “represented by counsel” in section 1368 to exclude
advisory counsel].) And there is no such thing as a right to
advisory counsel. (See People v. Moore (2011) 51 Cal.4th 1104,
1119–1120 [“[A] defendant has no right, under either the
federal or state Constitution, to ‘hybrid representation.’
Criminal defendants have the constitutional right to have an
attorney represent them, and the right under the federal
Constitution to represent themselves, but these rights are
mutually exclusive.” (fn. omitted)].)
      In light of the unambiguous meaning of “counsel” in
section 1018’s third sentence, the term “counsel” in the second
sentence is most naturally read to have the same meaning.
(See People v. Ruiz (2018) 4 Cal.5th 1100, 1113 [“ ‘It is an
established rule of judicial construction that when a term
appears in different parts of the same act . . . , the term should
be construed as having the same meaning in each instance.’ ”].)
This reading is further bolstered by the fact that we are
construing the same term in neighboring sentences that
address “ ‘the same or an analogous subject’ matter.” (Kibler v.
Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th
192, 201; see People v. Tran (2015) 61 Cal.4th 1160, 1168
[“ ‘when statutes are in pari materia similar phrases appearing
in each should be given like meanings’ ”]; id. at p. 1167.)
Moreover, the neighboring sentences have parallel structure,
and they share an identical usage (“appear with counsel”) that
was originally enacted as parts of a single sentence.


                                 3
                      PEOPLE v. MIRACLE
                        Liu, J., dissenting


(Stats. 1949, ch. 1310, § 1, p. 2298 [“No plea of guilty of a
felony for which the maximum punishment is death, or life
imprisonment without the possibility of parole, shall be
received from a defendant who does not appear with counsel,
nor shall any plea of guilty of any other felony be accepted from
any defendant who does not appear with counsel unless the
court shall first fully inform him of his right to counsel and
unless the court shall find that the defendant understands his
right to counsel and freely waives it.” (italics added)].)
      Today’s opinion acknowledges that the phrase “right to
counsel” in the third sentence of section 1018 must mean the
right “to be represented by counsel,” as the statute plainly
says. (Maj. opn., ante, at pp. 31–32.) From there, the court
says “the word ‘counsel’ (standing alone or in other contexts)
may carry a more expansive meaning.” (Id. at p. 32; see id. at
p. 33, fn. 1.) But the court makes no effort to examine the
context in which the word “counsel” appears in section 1018.
How could the word “counsel,” as used in the third sentence,
mean something different in the phrase “appear with counsel”
than in the phrase “right to counsel” or “represented by
counsel”? After all, the third sentence says that a defendant
seeking to plead guilty must “appear with counsel unless the
court shall first fully inform him or her of the right to counsel
and unless the court shall find that the defendant understands
the right to counsel and freely waives it, and then only if the
defendant has expressly stated in open court, to the court, that
he or she does not wish to be represented by counsel.” (Italics
added.) In addition, how could the phrase “appear with
counsel” mean something different in the second sentence than
in the third sentence, in light of the fact that both usages were



                                4
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


originally enacted as part of a single sentence?       The court
simply ignores these obvious linguistic clues.
       In addition to defying ordinary rules of construction, the
court’s interpretation of section 1018 is problematic for reasons
that are apparent in this case. Defendant Joshua Miracle was
initially represented by Michael Carty. When Miracle decided
he wanted to plead guilty to special-circumstance murder,
Carty refused to consent. Miracle then sought to represent
himself in order to plead guilty. The trial court granted
Miracle’s request and appointed Joe Allen as advisory counsel.
Allen consented to Miracle’s guilty plea because he believed
Miracle’s acceptance of responsibility would serve as important
mitigating evidence in an “intelligent penalty phase strategy.”
Allen told the trial court that the fact that Miracle’s plea would
be used at the penalty phase “is a very important factor for me
in agreeing to go along with this proposal.” But Miracle told
the trial court that he “just want[ed] to make clear that . . .
using that as mitigating evidence at the penalty trial is not my
motive for pleading guilty.” And in fact, Miracle “did not
present any evidence at the penalty phase and declined to
make a closing argument.” (Maj. opn., ante, at p. 8.)
      From this sequence of events, it is clear that Allen’s
consent to Miracle’s guilty plea did not serve as the
“independent safeguard” that section 1018 requires (People v.
Chadd (1981) 28 Cal.3d 739, 750 (Chadd)) because Allen, as
advisory counsel, did not and could not exercise control over
trial strategy. That control belonged exclusively to Miracle
after the trial court allowed him to represent himself. The
clear disconnect between the rationale for Allen’s consent and
Allen’s inability to direct a defense in accordance with that



                                 5
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


rationale illuminates why the term “counsel” in the second
sentence of section 1018 does not encompass advisory counsel.
      In response to this disconnect, today’s opinion says
“nothing in section 1018 prohibits a capital defendant who has
pleaded guilty [with counsel’s consent] from substituting
counsel or electing self-representation at the penalty phase.”
(Maj. opn., ante, at p. 34–35, fn. omitted.) But, as the trial
court in this case recognized, self-representation after the guilt
phase of a capital proceeding is a matter within the trial
court’s discretion (People v. Bloom (1989) 48 Cal.3d 1194,
1220), as is substitution of appointed counsel at any point
(People v. Walker (1976) 18 Cal.3d 232, 238). In discussing
with Miracle his desire to plead guilty, the trial court
considered the option of appointing Allen as counsel but made
clear that if it did so, it “would not then allow defendant to
represent himself again if he did not like how Allen was
representing him at either stage.” (Maj. opn., ante, at p. 21.)
Section 1018 is properly construed against the backdrop of
trial courts’ authority to prevent capricious or manipulative
behavior by defendants.
      Today’s holding is in significant tension with Chadd,
where we held that “the trial court had no authority to accept
[the defendant’s] guilty plea to a capital offense in the face of
his counsel’s express refusal to consent to the entry of such a
plea.” (Chadd, supra, 28 Cal.3d at p. 746.) There, the
Attorney General had argued that “section 1018 can be
‘construed’ to permit a capital defendant to discharge his
attorney, represent himself, and enter a guilty plea.” (Ibid.)
“But,” we said, “that is precisely what the third sentence of
section 1018 expressly authorizes noncapital defendants to do.
The proposal would thus obliterate the Legislature’s careful

                                 6
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


distinction between capital and noncapital cases, and render
largely superfluous its special provision for the former. Such a
construction would be manifestly improper.” (Id. at p. 747,
fn. omitted.)
      The scenario we disapproved in Chadd is essentially the
scenario the court approves today in light of the appointment
of advisory counsel who, although well-meaning, had no
authority to direct Miracle’s defense and whose advice on
penalty-phase strategy ultimately went unheeded. This is an
end run around section 1018’s clear prohibition on accepting a
guilty plea to a capital offense unless the defendant “appear[s]
with counsel” and has “the consent of [his] counsel.” As we
said in Chadd and reaffirmed in People v. Alfaro (2007) 41
Cal.4th 1277 (Alfaro), “ ‘it is difficult to conceive of a plainer
statement of law than the rule of section 1018 that no guilty
plea to a capital offense shall be received “without the consent
of the defendant’s counsel.” ’ ” (Id. at p. 1298, quoting Chadd,
supra, 28 Cal.3d at p. 746.) The Legislature need not abide the
erosion of this important safeguard in capital cases; it can
correct today’s decision by expressly stating that the word
“counsel” in section 1018 means an attorney who represents
the defendant and does not include advisory or standby
counsel.
                                II.
       The Attorney General, taking a view contrary to his
position in another pending case (Respondent’s Answering Br.
at p. 34, People v. Frederickson (S067392)), argues that reading
section 1018 to mean what it plainly means would run afoul of
a capital defendant’s constitutional right to refuse counsel and
represent himself. (Faretta v. California (1975) 422 U.S. 806


                                 7
                        PEOPLE v. MIRACLE
                          Liu, J., dissenting


(Faretta).) Today’s opinion says its construction of section 1018
has the virtue of avoiding this constitutional issue. (Maj. opn.,
ante, at p. 32.) But we construe statutes to avoid serious
constitutional questions only when doing so is “reasonably
possible.” (People v. Engram (2010) 50 Cal.4th 1131, 1161; see
Warger v. Shauers (2014) 574 U.S. __, __ [135 S.Ct. 521, 529]
[the avoidance canon “ ‘has no application in the absence
of . . . ambiguity’ ”].) Like this court in Chadd and Alfaro, I see
no ambiguity here, especially when the second sentence of
section 1018 is read together with the third sentence. And in
any event, like this court in Chadd and Alfaro, I see no
constitutional infirmity in section 1018, at least as applied to
the facts here.
       In Chadd, the Attorney General argued that if section
1018 cannot be construed to permit a capital defendant to
discharge counsel, represent himself, and enter a guilty plea,
then “it is unconstitutional because it allows counsel to ‘veto’ a
capital defendant’s decision to plead guilty.” (Chadd, supra, 28
Cal.3d at p. 747.) We rejected the argument, explaining that it
“fails to recognize the larger public interest at stake in pleas of
guilty to capital offenses. It is true that in our system of
justice the decision as to how to plead to a criminal charge is
personal to the defendant: because the life, liberty or property
at stake is his, so also is the choice of plea. [Citation.] But it is
no less true that the Legislature has the power to regulate, in
the public interest, the manner in which that choice is
exercised. Thus it is the legislative prerogative to specify
which pleas the defendant may elect to enter (Pen. Code,
§ 1016), when he may do so (id., § 1003), where and how he
must plead (id., § 1017), and what the effects are of making or
not making certain pleas.


                                  8
                       PEOPLE v. MIRACLE
                        Liu, J., dissenting


       “A plea of guilty, of course, is the most serious step a
defendant can take in a criminal prosecution. It operates first
as a waiver of formal defects in the accusatory pleading that
could be reached by demurrer. [Citations.] Next, because
there will be no trial the plea strips the defendant of such
fundamental protections as the privilege against self-
incrimination, the right to a jury, and the right of
confrontation. [Citations.] As to the merits, the plea is
deemed to constitute a judicial admission of every element of
the offense charged. [Citation.] Indeed, it serves as a
stipulation that the People need introduce no proof whatever to
support the accusation: the plea ipso facto supplies both
evidence and verdict. [Citation.] ‘A plea of guilty is more than
a confession which admits that the accused did various acts; it
is itself a conviction; nothing remains but to give judgment and
determine punishment.’         [Citation.]  Finally, it severely
restricts the defendant’s right to appeal from the ensuing
judgment. [Citation.]” (Chadd, supra, 28 Cal.3d at pp. 747–
748.)
      Section 1018’s prohibition on pleading guilty to capital
charges without the consent of counsel, Chadd explained, “was
an integral part of the Legislature’s extensive revision of the
death penalty laws in response to the decision of the United
States Supreme Court in Furman v. Georgia (1972) 408 U.S.
238. (Stats. 1973, ch. 719, §§ 2–6, pp. 1297–1300.) That
revision, of course, was an effort to eliminate the arbitrariness
that Furman found inherent in the operation of prior death
penalty legislation. [Citation.] The fact that the requirement
of counsel’s consent to guilty pleas in capital cases was enacted
as part of that statutory scheme demonstrates that the



                                9
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


Legislature intended it to serve as a further independent
safeguard against erroneous imposition of a death sentence.
       “Two years later the United States Supreme Court
decided Faretta, holding that defendants in state criminal
trials have a federal constitutional right of self-representation.
But that decision did not strip our Legislature of the authority
to condition guilty pleas in capital cases on the consent of
defense counsel. . . . [¶] . . . The opinion first categorizes the
several pretrial and trial rights guaranteed by that
amendment as ‘necessary to a full defense’ ([Faretta, supra,
422 U.S.] at p. 818), and observes that the amendment
‘constitutionalizes the right in an adversary criminal trial to
make a defense as we know it.’ (Ibid.; italics added.) The
opinion then reiterates (at p. 819) that the amendment grants
to the accused personally ‘the right to make his defense,’ and
concludes: ‘Although not stated in the Amendment in so many
words, the right to self-representation — to make one’s own
defense personally — is thus necessarily implied by the
structure of the Amendment. The right to defend is given
directly to the accused; for it is he who suffers the
consequences if the defense fails.’ (Italics added; fn. omitted.)
(Id. at pp. 819–820.)
      “The Attorney General in effect stands Faretta on its
head: from the defendant’s conceded right to ‘make a defense’
in ‘an adversary criminal trial,’ the Attorney General attempts
to infer a defendant’s right to make no such defense and to
have no such trial, even when his life is at stake. But in
capital cases, as noted above, the state has a strong interest in
reducing the risk of mistaken judgments. Nothing in Faretta,
either expressly or impliedly, deprives the state of the right to
conclude that the danger of erroneously imposing a death

                                 10
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


sentence outweighs the minor infringement of the right of self-
representation resulting when defendant’s right to plead guilty
in capital cases is subjected to the requirement of his counsel’s
consent.” (Chadd, supra, 28 Cal.3d at pp. 750–751.)
      Just as a state may prohibit all guilty pleas to murder
charges or may prohibit capital defendants from waiving an
automatic appeal without running afoul of Faretta (see Chadd,
supra, 28 Cal.3d at pp. 751–752), the requirement of counsel’s
consent to a guilty plea to a capital offense is a “ ‘reasonable’ ”
means of protecting the state’s interest in the accuracy and
fairness of its proceedings (id. at p. 753). It serves “as a filter
to separate capital cases in which the defendant might
reasonably gain some benefit by a guilty plea from capital
cases in which the defendant, as here, simply wants the state
to help him commit suicide.” (Ibid., fn. omitted.)
      In 2007, we reaffirmed this understanding of section
1018 in Alfaro. There, a capital defendant sought to enter a
guilty plea not with the goal of committing suicide but “to
avoid testifying against ‘Beto,’ whom her counsel sought to
implicate as an accomplice in the murder.” (Alfaro, supra, 41
Cal.4th at p. 1300.) Defense counsel refused to consent to the
plea, and the trial court determined that under section 1018 it
lacked authority to accept the plea absent counsel’s consent.
We held that counsel’s refusal to consent was reasonable
(Alfaro, at pp. 1300–1301), and we rejected the defendant’s
argument that her desire to plead guilty “concerned a
fundamental aspect of her defense that . . . must remain within
defendant’s control” (id. at p. 1302). Relying extensively on
Chadd, we concluded that “nothing in the record supports
defendant’s contention that her desire to plead guilty was
motivated by a desire to establish a defense of remorse or to

                                 11
                      PEOPLE v. MIRACLE
                        Liu, J., dissenting


demonstrate her acceptance of responsibility for the murder so
that a lesser punishment might be imposed at the penalty
phase. Accordingly, the trial court reasonably concluded that
the dispute between defendant and her counsel did not
implicate a constitutionally protected fundamental interest
that might override the plain terms of section 1018.” (Alfaro,
at p. 1302, fn. omitted; see id. at pp. 1298–1301.)
       Our unanimous opinion in Alfaro reaffirmed that “[t]he
consent requirement of section 1018 has its roots in the state’s
strong interest in reducing the risk of mistaken judgments in
capital cases and thereby maintaining the accuracy and
fairness of its criminal proceedings.” (Alfaro, supra, 41 Cal.4th
at p. 1300, citing Chadd, supra, 28 Cal.3d at pp. 750, 753.) We
explained that “[t]he statute constitutes legislative recognition
of the severe consequences of a guilty plea in a capital case,
and provides protection against an ill-advised guilty plea and
the erroneous imposition of a death sentence.” (Alfaro, at
p. 1300; cf. Beck v. Alabama (1980) 447 U.S. 625, 638 (Beck)
[Eighth Amendment’s prohibition on cruel and unusual
punishment requires a heightened degree of reliability in
capital cases not only in sentencing but also in “the guilt
determination”].) And recently, we again recognized that “[a]
societal interest in the integrity of the capital process may at
times outweigh a defendant’s stated preferences in controlling
his or her own case. For example, . . . state law prevents any
defendant from pleading guilty to capital charges without
consent of counsel, in light of ‘the state’s strong interest in
reducing the risk of mistaken judgments in capital cases and
thereby maintaining the accuracy and fairness of its criminal
proceedings.’ (Alfaro, supra, 41 Cal.4th at p. 1300.)” (People v.
Daniels (2017) 3 Cal.5th 961, 1005 (Daniels); see also People v.


                                12
                      PEOPLE v. MIRACLE
                        Liu, J., dissenting


Mai (2013) 57 Cal.4th 986, 1055 [citing section 1018 as an
example of the “limited circumstances in which, as a matter of
fundamental public policy, rights and decisions that are
normally personal to a criminal defendant may be limited or
overruled in the service of death penalty reliability”].)
      Like Chadd and Alfaro, this case presents no occasion to
decide whether section 1018 unconstitutionally restricts a
capital defendant’s right to make fundamental decisions about
his or her defense when the defendant, against the advice of
counsel, wishes to plead guilty as part of a strategy to avoid
the death penalty. In such a case, the disagreement between
the defendant and counsel arguably goes to the right to “make
one’s own defense personally.” (Faretta, supra, 422 U.S. at
p. 819.) Here, by contrast, Miracle told the trial court that he
“want[ed] to do the right thing and take responsibility and
offer exonerating testimony on behalf of Mr. Ibarra,” and that
he “just want[ed] to make clear that . . . using that as
mitigating evidence at the penalty trial is not my motive for
pleading guilty.” Although Allen said a “very important factor”
for him (Allen) in agreeing with the plea was its utility as
mitigating evidence in the penalty phase, Miracle consistently
told the trial court that he did not wish to offer any mitigating
evidence at the penalty phase (maj. opn., ante, at pp. 12–14,
19–20), and in fact he did not put on any mitigating evidence
(id. at p. 8). As in Alfaro, the record does not show that
defendant’s “desire to plead guilty was motivated by a desire to
establish a defense of remorse or to demonstrate [his]
acceptance of responsibility for the murder so that a lesser
punishment might be imposed at the penalty phase.” (Alfaro,
supra, 41 Cal.4th at p. 1302, italics added.)



                                13
                      PEOPLE v. MIRACLE
                        Liu, J., dissenting


       Miracle may have believed, according to his own ethical
code, that accepting responsibility — with no further
instrumental purpose — was “the right thing” to do for himself
and for his codefendant Ibarra. But the state has a strong
interest in the operation of its criminal justice system in
accordance with applicable law, not the ethical code of a
particular defendant. This interest is at its apex in capital
cases due to the severity and finality of the death penalty. (See
Beck, supra, 447 U.S. at p. 637.) To be sure, a self-represented
defendant may decide not to mount any defense in a capital
trial. (Daniels, supra, 3 Cal.5th at pp. 984–985.) “But a trial,
even one where a defense is voluntarily forgone, is
fundamentally different from a guilty plea. In [a trial], the
state [is] put to its burden of proof as to the murder charges
and related counts. A plea, on the other hand, ‘serves as a
stipulation that the People need introduce no proof whatever to
support the accusation’ and ‘ “is itself a conviction.” ’ (Chadd,
supra, 28 Cal.3d at p. 748.) Moreover, a guilty plea severely
limits the right to appeal. (See ibid.)” (Id. at p. 983.)
      It is true that Allen believed the prosecution’s evidence
was very strong and advised Miracle to that effect. But Allen’s
support for Miracle’s plea as part of “an intelligent penalty
phase strategy” provided no check on whether the plea, shorn
of any use at the penalty phase, would heighten the risk of a
mistaken judgment in this capital case. The attorney who had
considered that question, Carty, refused to consent to the plea.
Here, as in Chadd and Alfaro, the application of section 1018
as an “independent safeguard against erroneous imposition of
a death sentence” does not impermissibly compromise the
constitutional right to self-representation or the right to



                                14
                       PEOPLE v. MIRACLE
                         Liu, J., dissenting


control a fundamental aspect of the defense. (Chadd, supra, 28
Cal.3d at p. 750; see Alfaro, supra, 41 Cal.4th at p. 1302.)
      The Attorney General cites McCoy v. Louisiana (2018)
584 U.S. __ [138 S.Ct. 1500]), which held that defense counsel
cannot concede a capital defendant’s guilt over the defendant’s
objection. The high court reasoned that a defendant’s decisions
to “refuse to plead guilty in the face of overwhelming evidence
against her” and to “maintain[] her innocence at the guilt
phase of a capital trial” are “not strategic choices about how
best to achieve a client’s objectives; they are choices about what
the client’s objectives in fact are.” (Id. at p. 1508.)          I
acknowledge that aspects of McCoy may be read to suggest
that a defendant retains the ultimate right to decide whether
to plead guilty to capital charges. (See, e.g., ibid. [“whether to
plead guilty” is a decision “reserved for the client”].) But
McCoy did not weigh a defendant’s autonomy interests against
countervailing reliability interests; it did not address whether
a capital defendant may enter a guilty plea against the advice
of counsel in the face of a state statute requiring counsel’s
consent as a measure to lessen the risk of a mistaken
judgment. (See People v. Ghobrial (2018) 5 Cal.5th 250, 285
[“ ‘a decision is not authority for propositions not
considered’ ”].) McCoy’s holding is that “it is the defendant’s
prerogative, not counsel’s, to decide on the objective of his
defense: to admit guilt in the hope of gaining mercy at the
sentencing stage, or to maintain his innocence, leaving it to the
State to prove his guilt beyond a reasonable doubt.” (McCoy, at
p. __ [138 S.Ct. at p. 1505].) The case before us does not
involve a defendant who sought “to admit guilt in the hope of
gaining mercy at the sentencing stage.” (Ibid.)



                                 15
                      PEOPLE v. MIRACLE
                        Liu, J., dissenting


       In sum, the trial court should have followed its initial
instinct not to accept Miracle’s guilty plea without the consent
of counsel.      The discharge of Miracle’s attorney and
appointment of advisory counsel who subsequently agreed with
the plea did not satisfy section 1018’s plain requirement that a
defendant who wishes to plead guilty to a capital offense must
“appear with counsel” and have the “consent of the defendant’s
counsel.” The constitutionality of applying section 1018 might
be a more difficult question if Miracle had chosen to plead
guilty in order to improve his penalty-phase defense, as Allen
had advised. But the application of section 1018 to the
circumstances here presents no constitutional infirmity. The
trial court’s error under section 1018 requires reversal of the
judgment on the counts to which Miracle pleaded guilty. (See
Chadd, supra, 28 Cal.3d at pp. 754–755.)
     I respectfully dissent.


                                              LIU, J.




                                16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Miracle
_______________________________________________________________________________
___

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

_______________________________________________________________________________
___

Opinion No. S140894
Date Filed: December 3, 2018
_______________________________________________________________________________
___

Court: Superior
County: Santa Barbara
Judge: Brian E. Hill

_______________________________________________________________________________
___

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, and Andrea G. Asaro, Deputy
State Public Defender, for Defendant and Appellant.

Law Offices of John T. Philipsborn, John T. Philipsborn; Sanger Swysen & Dunkle and Stephen
K. Dunkle for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant
and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee,
Peggy Z. Huang, James William Bilderback II and Blythe J. Leszkay, Deputy Attorneys General,
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrea G. Asaro
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300

Blythe J. Leszkay
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6191
