Filed 3/11/15 P. v. Macias CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064624

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS245331)

EDUARDO ALBERTO MACIAS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed as modified and remanded with directions.

         Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland Assistant Attorney General,

Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and

Respondent.
                                     INTRODUCTION

       This case arose out of crimes committed by a group of inmates─some of whom

were members of the Mexican Mafia prison gang─against a fellow inmate in a prison

yard. In an amended information (information), Eduardo Alberto Macias (the appellant

in the current appeal) and his two codefendants at trial─Lionel Alvidrez Quinteros and

Geronimo Polina1─were charged with three felony offenses: (1) conspiracy to commit

murder (count 1: Pen. Code,2 §§ 182, subd. (a)(1), 187, subd. (a)); (2) attempted murder

(count 2: §§ 187, subd. (a), 664); and (3) assault with a deadly weapon by a prisoner

(count 4: § 4501). As pertinent here, the information also alleged that Macias committed

each crime for the benefit of, at the direction of, or in association with a criminal street

gang, within the meaning of section 186.22, subdivision (b)(1); that he personally used a

deadly weapon within the meaning of section 12022, subdivision (b)(l) in committing the

offenses charged in counts 2 and 4; and that he had suffered three prior strike convictions

within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 668.

       During trial before a single jury─after Macias, Quinteros, and Polina rested and

while the prosecution was presenting the testimony of a rebuttal witness─Macias pulled

out a concealed razor blade and slashed his attorney on the cheek in the presence of the



1     Five codefendants were originally charged in this matter along with Macias:
Quinteros, Polina, Jose Manuel Garcia, Juan Gabriel Morones, and Francisco Daniel
Valencia. At some point Valencia pleaded guilty and Garcia and Morones's trial was
severed. The remaining defendants─Macias, Quinteros, and Polina─were jointly tried.
Neither Polina nor Quinteros is a party to this appeal.

2      All further statutory references will be to the Penal Code.
                                               2
jury. The court individually questioned in camera the 12 jurors and three alternate jurors,

and then excused two jurors and replaced them with alternate jurors.

       Quinteros, joined by Polina and Macias, moved for a mistrial based on the

slashing incident in the courtroom. The court denied the three codefendants' mistrial

motions. In denying Macias's mistrial motion, the court told Macias he had forfeited his

right to appointed counsel and he should not benefit from his attack on his attorney.

       The jury found Macias guilty of all three charged offenses (conspiracy to commit

murder, attempted murder, and assault with a deadly weapon by a prisoner) and found to

be true the gang enhancement allegation (§ 186.22, subd. (b)(1)) attached to each of those

three counts (counts 1, 2, 4) and the personal-weapon-use allegations.

       In May 2013 Macias pleaded guilty to aggravated mayhem in People v. Macias

(Super. Ct. San Diego County, No. SCD235449) in connection with his attack on his

attorney during trial in the instant case.

       Later, in a bifurcated proceeding, Macias admitted one of the prior strike

allegations. The court then sentenced Macias to an aggregate term of 50 years to life plus

29 years. The sentence consisted of an indeterminate term of 25 years to life for Polina's

count 1 conspiracy conviction, doubled to 50 years to life under the Three Strikes law

(§§ 667, subds. (b)-(i), 1170.12); plus a consecutive determinate upper term of 18 years

for his count 2 attempted murder conviction; plus a consecutive one-year term for the

count 2 personal-use-of-a-weapon enhancement; plus a consecutive 10-year term for the

count 2 gang enhancement. The court imposed, but stayed under section 654, the



                                             3
sentence it imposed for Macias's count 4 aggravated assault conviction and the related

personal-use-of-a-weapon and gang enhancements.

       Macias's contentions

       Macias raises six contentions on appeal. First, he contends the judgment must be

reversed because the court violated his federal constitutional rights to due process and an

unbiased jury when it denied his motion for a mistrial following his courtroom

misconduct in slashing the face of his attorney in front of the jury.

       Second, he contends the judgment must be reversed because the court erred and

violated his federal constitutional rights in ruling he had forfeited his right to counsel by

assaulting his counsel in front of the jury.

       Third, Macias contends the judgment must be reversed because he was deprived of

his right to be either present or represented by counsel during the questioning of the jury

after his courtroom attack on his attorney.

       Fourth, he contends the judgment must be reversed because he was deprived of his

federal constitutional right to a fair trial when "he was compelled to appear in front of the

jury in jail clothing."

       Fifth, he contends the judgment must be reversed because cumulative error

deprived him of his federal constitutional right to due process.

       Last, Macias contends the 29-year sentence the court imposed for his count 2

attempted murder conviction and the related sentence enhancements "must be stricken"

under section 654. The Attorney General acknowledges Macias's count 2 sentence

should be stayed under section 654 because Macias was punished separately for his count

                                               4
1 conviction of conspiracy to murder Ortiz and "both crimes had the same objective and

intent."

       We modify the judgment to stay under section 654 the 29-year sentence imposed

for Macias's count 2 attempted murder conviction and the related count 2 sentence

enhancements. We affirm the judgment as modified and remand the matter to the

superior court with directions to correct the abstract of judgment.

                              FACTUAL BACKGROUND

       A. The People's Case

       Victoriano "Cyco" Ortiz testified both as the victim of the July 5, 2010 attack in

the prison yard at the Richard J. Donovan Correctional Facility (Donovan) that is the

subject of this case, and as an expert on the Mexican Mafia. Ortiz, who had been a

member of the Brole gang in Brawley, California, became an associate3 in the Mexican

Mafia. He was incarcerated at Donovan after he was convicted in 2010 of committing

an assault in El Centro for the benefit of the Mexican Mafia.

       Ortiz indicated that the Mexican Mafia exerts its control inside California prisons

and jails and over Southern California Hispanic street gangs. Members of Hispanic street

gangs in Southern California are called "Southsiders." The Mexican Mafia is in charge

of the Southsiders. A "Sureño" is a full-fledged "soldier" who is very loyal to the

Mexican Mafia. To become a Sureño one must assault somebody in prison or do

something that shows his alliance with, and respect for, the Mexican Mafia.


3       Ortiz testified that an associate is somebody who has been "validated" and has "a
lot of authority and power . . . for the Mexican Mafia."
                                             5
       Ortiz testified that the Mexican Mafia communicates to inmates through letters.

These letters give inmates authority to "run" the prisons, collect "taxes," and "do

whatever has to be done" inside the prisons. To show their respect to the Mexican Mafia,

Southsiders must pay "taxes" to the Mexican Mafia in the amount of one-third of all of

the proceeds of their illegal activity.

       Ortiz also testified that if a street gang fails to pay their respects to the Mexican

Mafia, they can get "greenlighted," which means the members of the gang will be beaten

or stabbed when they arrive in prison depending on how "hard" the greenlight is.

According to Ortiz, members of the Mexican Mafia commit "[a]ssaults, stabbings,

shootings, kidnappings, torture, anything that they have to" in order to "get the point

across that the Mexican Mafia is and will be respected." The members commit crimes to

collect their money, often by extortion. In the prison, a module contains about 20 cells,

and each module is run by a "key holder" who is in charge of collecting the taxes for the

Mexican Mafia.

       Ortiz testified that when he arrived at Donovan, he believed he had permission to

run Donovan based on verbal and written authority that Mexican Mafia member Richard

Buchanan gave him. Ortiz established a "mesa" (his team or executive committee) with

three other Donovan inmates: Polina ("Blue"), Isaac ("Lazy") Ballesteros, and Manuel

("Stomper") Gonzalez. Before July 2, 2010, Macias─a Sureño whom Ortiz knew as

"Funny Boy"─was also loyal to Ortiz. Ortiz testified that Quinteros (one of Macias's

codefendants at trial), a Southsider whom Ortiz knew as "Chuco," wanted to become

loyal to Ortiz's mesa and told Ortiz he would do whatever Ortiz asked.

                                               6
       According to Ortiz, a power struggle arose when another inmate, "Casper from

Fallbrook,"4 failed to recognize Ortiz's authority. In an attempt to "come together in

agreement," Ortiz tried sending written "kites"5 to Casper indicating that Buchanan had

given him authority to run the prison. Ortiz directed Ballesteros to write a kite telling

Casper that he and Ortiz needed to "settle up," but Casper refused to do so.

       On July 2, 2010, through a vent, Ortiz overheard a Mexican Mafia associate

named Jose Manuel "Crazy Joe" Garcia, who sided with Casper, tell Ballesteros to stab or

slice Ortiz and Gonzalez with razor blades. Ortiz testified that he also read some kites

sent to Ballesteros stating that Crazy Joe (Garcia) said Ortiz and Stomper (Gonzalez)

were supposed to get "hit on the next available yard, no exceptions." These kites noted

that Ortiz, Polina, Ballesteros, and Gonzalez were "in the hat," which meant they had

"mess[ed] up" and were "done." The word "whacked," which means killed, was used in

one of the kites. Ortiz testified he was angry that Ballesteros, a member of his mesa, was

being ordered to stab him.

       Investigators at Donovan received information that Garcia was going to conduct

some criminal activity for the Mexican Mafia at the prison. Unbeknownst to the inmates,

microphones were placed in the plumbing chase between two cells where Garcia was

4      Pablo ("Casper") Franco.

5      Ortiz testified that "kites" (or "willas") are "small handwritten notes that [inmates]
usually fold and roll up real small the size of a capsule. [U]sually an inmate can sneak it
under his tongue, in his tooth, in his gums, or if he has to, in his private areas or his toes,
or anywhere, because he gets searched." He stated that kites are "confidential
communications between inmates" that "generally talk about either Mexican Mafia or
prison politics."
                                               7
located so that law enforcement officers could glean intelligence. In one recorded

conversation, which was played for the jury, Garcia dictated a kite to his cellmate, Juan

Morones, giving a direct order for the stabbing of Ortiz.

       Knowing from the kites that he might get stabbed, Ortiz went outside to the prison

yard on July 5, 2010, at approximately 12:20 p.m., and walked laps with Polina. Ortiz

testified that as he walked and talked with Polina, he observed other inmates walking

towards a corner near a toilet stall. Polina then swung his hand at Ortiz's face, and Ortiz

raised his right hand to block the strike and protect his face. Ortiz felt something cutting

his hand.

       Ortiz also testified that Macias approached him and slashed his head with a razor

while Quinteros punched him and held him down.6 Another inmate named "Cobra"

Valencia also assaulted Ortiz. As correctional officers fired shots of increasing lethality,

Ortiz's attackers continued to assault him by punching, kicking, and stabbing him, and

banging his head against a wall while he tried to cover up and defend himself. As a result

of the razor slashes, Ortiz suffered cuts to his head, back, and hand. Macias flushed the

razor down the toilet. A video of the incident was played for the jury.

       B. The Defense

       Macias testified that Ortiz was angry with him because a girl named Priscilla liked

him. To antagonize Ortiz, Macias took a picture of himself kissing Priscilla and sent it to

Ortiz. Macias testified he was not involved in a conspiracy to murder Ortiz, and he



6      Gonzalez was attacked at the same time as Ortiz.
                                              8
denied receiving instructions to murder him. He claimed he never received a kite about

"putting a hit" on Ortiz.

       Macias also testified he and Ortiz argued because Macias was upset that Ortiz had

made jokes about the fact that he had been incarcerated for beating up a person in a

wheelchair. Following this argument, Macias began carrying a razor in his mouth when

he went to the prison yard. On the day of the incident, Macias saw Ortiz walking with

Macias's friend, Polina. Macias testified that Ortiz took a "cheap shot" at Polina by

punching him from the side. Macias removed the razor from his mouth and began

"slicing" Ortiz. Macias also testified he had no intent to kill Ortiz, as the razor was small

and flimsy. He stated that he flushed the razor down the toilet. He also testified that

Quinteros tried to break up the fight.

       Several other inmates testified in Macias's defense. Ortiz's cellmate, Angel

Cuadra, testified that Ortiz said he was going to attack Polina. Martin Madrid testified

that Ortiz told him Macias had taken his girlfriend, Priscilla, from him. Another of

Ortiz's cellmates, Anthony Barrera, testified that Ortiz carried razor blades and was angry

with Macias because of a woman. "Stomper" Gonzalez testified he witnessed the fight in

the yard between Ortiz and Polina. He stated that Ortiz started the fight by hitting Polina.

Gonzalez stated he also became involved in a mutual fight. Gonzalez also testified he did

not believe a hit was put on him.




                                              9
                                       DISCUSSION

           I. DENIAL OF MACIAS'S MISTRIAL MOTION FOLLOWING HIS
                   COURTROOM ATTACK ON HIS ATTORNEY

       Macias first contends the judgment must be reversed because the court violated his

federal constitutional rights to due process and an unbiased jury when it denied his

motion for a mistrial following his courtroom misconduct in slashing the face of his

attorney in front of the jury. We reject this contention.

       A. Background

       1. Macias's courtroom assault on his attorney and related proceedings that day

       On December 13, 2012, after Quinteros, Macias, and Polina rested their cases, the

prosecution recalled Ignacio Bravo, a correctional officer at Donovan, as its first rebuttal

witness. As Officer Bravo was testifying, Macias slashed his attorney, William

Burgener, in the face with a small razor blade he had concealed in his mouth. Burgener

jumped up and exclaimed, "What the fuck did you do to me?" Macias tried to stand up

but could not do so because he was bolted down. A bailiff said, "Call first aid." The

bailiffs then jumped on Macias. The court said, "Everybody stay right there."

       Immediately thereafter, Macias stated, "It didn't have nothing to do with you guys.

Officer Bravo—" The court silenced him, stating, "Mr. Macias, you need to keep quiet."

The jurors left the courtroom after the defendants were removed from the courtroom.

Burgener was taken to the hospital where he received stitches for his wound.

       Outside the presence of the jury, in another courtroom, the trial judge summarized

what had occurred:


                                             10
          "So we were in a different department, Department 25, when Officer
          Bravo was about to testify as a rebuttal witness for the prosecution.
          He was the last witness before we were going to instruct the jurors.
          And as soon as Mr. Bravo took the stand, Mr. Macias apparently had
          secreted a small─very small razor blade that had some cloth
          wrapped around the bottom of it, so it was probably maybe a quarter
          of an inch point, maybe, or maybe three-eighths of an inch point.
          And he slashed─I guess it was in his mouth. He took it out of his
          mouth and he slashed Mr. Burgener with it.

          "[Macias] was I bolted to the floor so he couldn't get up. And so
          then Mr. Burgener jumped up and yelled and had blood on his face,
          and apparently, according to Agent Epperson,7 had a pretty deep cut
          on his jawline on his right side.

          "So Mr. Burgener had to go to the hospital because it looks like he
          might have to have stitches. He definitely needs to have that wound
          thoroughly cleaned. And he's no longer here today.

          "But we have a jury that we swore in and listened to the entire
          proceedings and we were about to instruct. And so since Mr.
          Burgener is at the hospital and cannot be here, I wanted to have Mr.
          Macias represented when we decide what kind of--how we are going
          to proceed from here.

          "And so that's why you are here, Mr. Cline.[8] And so now I don't
          know if you had an opportunity to talk to [Polina's attorney] or
          [Quinteros's attorney], but I kind of wanted to get an idea of what
          they think should happen next in their judgment."

      At that point, Quinteros's counsel made a motion for mistrial, stating that

defendant Macias's conduct in the courtroom involved "the same thing that all three

defendants are charged with in this case." Polina's attorney stated he was leaning toward

7      Steve Epperson, a special agent at the Special Service Unit of the California
Department of Corrections, had previously testified during the People's case-in-chief.
Agent Epperson, who was in the courtroom at the time Macias slashed Burgener with the
razor blade, assisted Burgener in the courtroom before he was taken to the hospital.

8     Attorney Stephen Cline made a special appearance on behalf of Macias.
                                           11
a mistrial motion, but first he needed to speak with his client. When Quinteros's attorney

pointed out that Macias had been in the courtroom out of the presence of the jury for 30

minutes before he attacked his attorney, the prosecutor responded that Macias attacked

Burgener "[o]nly after the jury was brought in[ and] only when the witness took the

stand," which suggested Macias slashed his attorney "for the benefit of the jury."

       Indicating that the court needed to speak with Macias's attorney to determine

whether he wanted to "conflict out," the prosecutor stated that Macias should not benefit

from his conduct. The prosecutor suggested Macias would be entitled to a mistrial if

Burgener decided he could not continue as Macias's trial counsel because "no one else is

ready to represent him at this time." The prosecutor also suggested that the court

question the jurors to determine whether they could be fair and that it draft a special jury

instruction indicating Macias's conduct could not be used against Quinteros and Polina.

       After further discussion, the prosecutor told the court he was going to "change

[his] position," noting that he had consulted with a senior deputy attorney general, and he

believed "Polina and [Quinteros] have a built in reversal issue because of the horrific act

done by Macias." The court noted that the jury had witnessed a "slash attack" that was

potentially traumatizing and upsetting for them. Stating that "we're asking a lot" of the

jurors by asking them to "forget what [they] saw" and deliberate, the court commented

that "we're probably going to do the mistrial route as to [Polina and Quinteros]."

       After a recess, Polina's attorney indicated that he had conferred with Polina and

that they "wish[ed] to continue on with the trial and finish it up." Quinteros's counsel,

however, requested that the court declare a mistrial. Cline, the attorney specially

                                             12
appearing for Macias, stated he thought a mistrial "would be appropriate under the

circumstances," but he would "defer to the court." In response, the prosecutor suggested

that the court send the jury home to allow the parties to conduct research regarding the

issue.

         Noting that it also wished to hear from Macias's counsel, Burgener, the court

declared a recess.

         The court brought the jurors back into the courtroom and gave the following

admonishment:

            "First of all, I want to apologize for you[r] having to witness what
            some of you witnessed. And I also want to apologize for the
            inconvenience of having you all interviewed because an alleged
            crime occurred in your presence, and so you were witnesses to that
            alleged crime, so you were interviewed as witnesses.

            "Now, I've been doing criminal cases, either as a lawyer or as a
            judge, for 30 years, and this is the first time something like this has
            ever happened, and so I think all--and there are countervailing
            constitutional rights at play here for defendants, for the prosecutor,
            and so most of us have not experienced something like this either, so
            I think we all just need to--the lawyers need to all call time out and
            do a little research and try to figure out how we should proceed.

            "So what that means for you, is that we'd like you to return
            tomorrow morning at 10:00, and we're going to have a little
            conference between 9:30 and 10:00 with the lawyers, and then we're
            going to try to figure out what our next step is. So it may be that
            we're going forward and doing closing argument. It may be that we
            are declaring a mistrial and you'll all be excused. But before we
            figure out what the answer to some of those questions are, we need
            to have a little time to research it. Okay.

            "So now this is going to be the hardest part of the next 22 hours, is
            that you are not to form or express an opinion about this case, you're
            not to discuss it among yourselves or with others, so that's really
            important, because I know that this incident is going to be on the

                                              13
          news, and so if you can avoid watching the news, that would be
          great. It's also going to be in the paper, so please do not read a
          newspaper article about it, and please do not discuss it with your
          loved ones. Just say I can't talk about it until the trial is over.

          "And I appreciate your work on this case. We're actually, before this
          happened, we were making very good progress, and we were going
          to be doing closing argument, some today and some on Friday.

          "So we're actually way, way ahead of schedule. And so, I mean, we
          still have a little more time to dedicate to this case, like we told you.

          "So anyway, so tomorrow morning at 10:00 o'clock in Department
          25. Not here. This is our normal department, but that department is
          a little bit bigger and it accommodates everybody a little better.

          "So you're ordered to appear tomorrow morning at 10:00 o'clock
          outside Department 25. And like I said, I know it's going to be
          really hard to compartmentalize this, but I'm going to ask you do
          that. And if we do go forward with argument and deliberations, that
          you not let what happened in the courtroom affect what you think the
          evidence does or does not show about what happened at Donovan.

          "So what happened at Donovan is what you're charged with
          deciding, not what happened in our courtroom. Okay. [¶] Alright.
          Thank you very much. And you are excused for the day." (Italics
          added.)

       Outside the presence of the jury, attorney Cline represented to the court that

Burgener's wound did not appear to be life threatening and he was being evaluated by a

plastic surgeon. Cline also stated that Burgener believed he had a conflict with Macias

and he could not effectively represent him. The court then adjourned the hearing to give

the parties time to conduct research.

       2. The court's in camera interviews of the jurors and alternate jurors

       The following day, December 14, the prosecution filed an opposition to the

defense motion for mistrial. The prosecution urged the court, before deciding whether a

                                             14
mistrial should be declared, to inquire of the jurors whether they could "put the incident

aside and decide this case solely on the facts as presented [at] trial and not be influenced

by [Macias's] conduct." The prosecution argued that Macias's attack on his attorney

warranted his removal from the courtroom, and that by his actions he had forfeited his

right to appointed counsel if Burgener was unable to continue representing him.

       At the follow-up hearing that day, outside the presence of the jury, attorney

Burgener told the court he was prepared to go forward with closing arguments on behalf

of Macias. In response to the court's inquiry, the prosecutor informed the court that any

prosecution of Macias for his courtroom behavior would be handled by the Attorney

General's Office. The prosecutor argued that the incident in the courtroom did not

necessarily create a conflict between Burgener and Macias and that it was "allowable and

appropriate" for Burgener to continue representing Macias.

       The trial court then indicated it believed Burgener had an actual conflict with

Macias, notwithstanding Burgener's willingness to continue with the trial, and despite the

prosecutor's argument to the contrary. Cline, who again was specially appearing on

behalf of Macias, told the court he also believed that an actual conflict existed between

Burgener and Macias and then represented that Macias did not believe he could work

with Burgener. Burgener reiterated that he was "happy to go forward" despite the fact he

had received several fine stitches along his jawline.




                                             15
       The court then held an in camera Marsden9 hearing with Macias, Burgener, and

Cline to determine whether Burgener should continue representing Macias. Following

the hearing, the court relieved Burgener as Macias's counsel. The court also found that

Macias had forfeited his right to appointed counsel, indicating that Macias should not

benefit from his own wrongdoing. The court appointed Cline as Macias's standby

counsel. The court then stated it would conduct an in camera hearing with each

individual juror to determine whether he or she could be fair and impartial, and then it

would address any mistrial motions by the defendants.

       During the in camera hearing, the court, with counsel present, individually and

privately questioned each of the 12 jurors and three alternate jurors outside the presence

of the defendants and the other jurors. The court generally asked each juror four

questions: (1) whether the juror could put aside what the juror saw, and fairly and

impartially evaluate the evidence; (2) whether the juror could not let what the juror saw

affect how he or she looked at Quinteros and Polina, given that neither of these

defendants was involved in the incident; (3) whether the juror could fairly and impartially

set aside what he or she saw with regard to defendant Macias and decide the charges

based on what Macias allegedly did on the date of the charged incident; and (4) whether

the juror was interviewed by the sheriff.

       As pertinent here, jurors Nos. 1, 3, 4, and 7 through 15 indicated that they were

able to put aside their observations of the Macias incident and fairly and impartially



9      People v. Marsden (1970) 2 Cal.3d 118.
                                            16
evaluate the evidence and that the incident would not influence how they viewed the

evidence against Quinteros, Polina, and Macias.

       Juror No. 2, when asked the first question, stated: "My feeling is yes, but I think if

once we adjourn to go through the case, we'll be doing a lot of talking." The court

indicated that the conversation should not be about what happened in court between

Macias and Burgener, and juror No. 2 replied, "I understand." When the court asked

juror No. 2 whether he could abide by an instruction not to consider what had happened

in court, he indicated he could do so. Juror No. 2 then indicated he would "certainly try"

to not let the incident affect his deliberations with regard to Quinteros and Polina, but

indicated that "there's got to be an effect" and noted that he observed "a young man that

had a very bad temper." The court asked juror No. 2 whether─as to Macias─he could set

aside what happened in court and decide the case on what was said on the witness stand.

Juror No. 2 replied, "Yes, we could go through our notes and tally it up and figure what's

correct."

       Jurors Nos. 5 and 6 indicated they did not believe they could be fair and impartial

after observing Macias's conduct. The court excused those jurors and replaced them with

alternate jurors.

      a. Quinteros's mistrial motion; Macias's and Polina's joinders, and Polina's
motion to sever

       Following the in camera interviews of the jurors, and out of the presence of the

jury, Quinteros moved for a mistrial based on the slashing incident in the courtroom.

Quinteros's counsel argued that Macias, by cutting his attorney with a razor in the


                                             17
courtroom, painted Quinteros and Polina in a bad light, although they were not involved

in that incident. He also indicated the Macias incident undermined Quinteros's trial

defense of downplaying Ortiz's injuries. Quinteros's counsel also argued the jurors could

not put the courtroom incident aside even if they said they could.

       Polina and Macias joined Quinteros's mistrial motion. Polina also moved for

severance of his trial.

       The court noted that 13 of the 15 jurors interviewed said they could be fair and

impartial and could set aside what happened, while the two who said they could not were

excused. The court stated it did not see how the Macias incident undercut any argument

Quinteros intended to make as to the severity of Ortiz's injuries. The court also noted that

both Quinteros and Polina sat still during the Macias incident, they appeared to be

unaware that Macias was going to do what he did to Burgener, and the jurors indicated

they would not hold Macias's actions against Quinteros and Polina.

       Following further discussion the court denied the motions for mistrial, reiterating

that the jurors indicated they could be fair and impartial and the court had to "take them

at their word" and "trust them." Specifically, as pertinent here, the court told Macias in

denying his mistrial motion:

           "Like I said before, . . . you forfeited your right to counsel by
           participating in that attack, and so that's why you're pro per now.
           And you can't benefit from your attack. And . . . the benefit would
           be that your case gets put off into the future, and then the witnesses
           get killed or witnesses could go to prison or get transferred, and so
           it's hard to reconstruct this case six months later.




                                             18
          "And then secondly, the law is very clear that when you attacked
          your attorney in the way you did, in a very violent manner, . . . you
          forfeit your right to have counsel sitting next to you.

          "And then finally, I will say that we have to take the jurors at their
          word. [W]e can speculate about what they're thinking, but when
          they tell us [']we can be fair and impartial,['] we have to take them at
          their word. So that's what I'm doing." (Italics added.)

       The court also denied Polina's severance motion.

       3. Special jury instructions

       Prior to deliberations, the jury was instructed that it must decide the case based

only on the evidence presented in the courtroom. The court also gave the jury the

following special limiting instruction:

          "Your task is deciding what occurred on July 5th, 2010, at R.J.
          Donovan state prison. Once you agree . . . on what the facts are in
          this case, you are to apply the law set forth in these instructions to
          those facts.

          "Ultimately, you will decide whether this case has been proven
          beyond a reasonable doubt. If it has not been proven beyond a
          reasonable doubt, you must find the defendants, or any individual
          defendant against whom the case has not been proven, not guilty.

          "In reaching your determination, you are not to consider anything
          that you observed, or heard in the courtroom on December 13, 2012.
          Those events should not enter into or affect your deliberations in any
          way." (Italics added.)

       4. Jury verdicts

       As pertinent here, the jury, after about four and a half hours of deliberations, found

Macias guilty of all three charged offenses (conspiracy to commit murder, attempted

murder, and assault with a deadly weapon by a prisoner) and found to be true the gang



                                             19
enhancement allegation attached to each of those three counts (counts 1, 2, 4) and the

personal-weapon-use allegations attached to counts 2 and 4.

       B. Applicable Legal Principles

       Under the Sixth and Fourteenth Amendments to the United States Constitution and

article I, section 16 of the California Constitution, "[a]n accused has a constitutional right

to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member

has been improperly influenced [citations] and every member is '"capable and willing to

decide the case solely on the evidence before it."'" (In re Hamilton (1999) 20 Cal.4th

273, 293-294 (Hamilton).)

       Although "[a] sitting juror's involuntary exposure to events outside the trial

evidence" (Hamilton, supra, 20 Cal.4th at pp. 294-295) is not misconduct in the

pejorative sense, it may still lead to juror bias. (Ibid.) Such exposure gives rise to a

rebuttable presumption of prejudice. (People v. Danks (2004) 32 Cal.4th 269, 307.)

       Whether an individual verdict must be overturned as a result of such juror

exposure or irregularity "'"'is resolved by reference to the substantial likelihood test, an

objective standard.'"'" (Hamilton, supra, 20 Cal.4th at p. 296.) In Hamilton, the

California Supreme Court held that "[a]ny presumption of prejudice is rebutted, and the

verdict will not be disturbed, if the entire record in the particular case, including the

nature of the misconduct or other event, and the surrounding circumstances, indicates

there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or

more jurors were actually biased against the defendant." (Ibid.) In so holding, the high

court explained that "[t]he standard is a pragmatic one, mindful of the 'day-to-day

                                              20
realities of courtroom life' [citation] and of society's strong competing interest in the

stability of criminal verdicts [citations]. It is 'virtually impossible to shield jurors from

every contact or influence that might theoretically affect their vote.' [Citation.]

Moreover, the jury is a 'fundamentally human' institution; the unavoidable fact that jurors

bring diverse backgrounds, philosophies, and personalities into the jury room is both the

strength and the weakness of the institution. [Citation.] '[T]he criminal justice system

must not be rendered impotent in quest of an ever-elusive perfection. . . . [Jurors] are

imbued with human frailties as well as virtues. If the system is to function at all, we must

tolerate a certain amount of imperfection short of actual bias.'" (Ibid., italics added.)

       In People v. Cissna (2010) 182 Cal.App.4th 1105 (Cissna), this court explained

that "[w]hen . . . juror misconduct arises from a juror's receipt of extraneous information,

juror bias can be inherent or circumstantial. [Citations.] Under the inherent bias test, the

court considers whether the 'extraneous material, judged objectively, is inherently and

substantially likely to have influenced the juror.' [Citations.] Even when the extraneous

information is not so prejudicial, in and of itself, as to cause inherent bias, under the

circumstantial bias test the court must examine the totality of the circumstances

surrounding the misconduct to determine whether a substantial likelihood of actual bias

nonetheless arose. [Citations.] The judgment must be set aside if the court finds

prejudice under either the inherent or circumstantial bias test." (Id. at pp. 1116-1117,

italics added.)




                                              21
       1. Standard of review

       Generally, "[w]e review the denial of a motion for mistrial under the deferential

abuse of discretion standard." (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on

other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The Cox court

explained that "'"[a] mistrial should be granted if the court is apprised of prejudice that it

judges incurable by admonition or instruction. [Citation.] Whether a particular incident

is incurably prejudicial is by its nature a speculative matter, and the trial court is vested

with considerable discretion in ruling on mistrial motions.'''" (Cox, at p. 953.).)

       We review the legal correctness of the court's ruling, not the court's reasoning.

(People v. Zapien (1993) 4 Cal.4th 929, 976.)

       C. Analysis

       Macias asserts his courtroom attack on his attorney in the presence of the jury "did

not lead to the relinquishment of his rights to due process and a fair trial, which includes

his right to a fair and unbiased jury." In support of his claim that the court erred and

violated these federal constitutional rights when it denied his motion for a

mistrial─which, as noted, was based on his claim that his attack on his attorney likely

prejudiced the jury against him─Macias asserts the court "applied the wrong standard

when [it] concluded about the jurors, 'I have to trust them at their word'" when they said

they could be fair and impartial after the attack. He also asserts the court "refused to

even consider whether there should be a mistrial, because . . . the court felt that would

cause [him] to benefit from his misconduct." Macias further asserts that he "is unaware

of any authority for the proposition that his in-court misconduct can cause a forfeiture or

                                              22
waiver of [these] most fundamental of constitutional rights." These assertions are

unavailing.

       In denying Macias's mistrial motion, as discussed in greater detail, ante, the court

explained to Macias that, "when you attacked your attorney in the way you did, in a very

violent manner, . . . you forfeit[ed] your right to . . . counsel," and "you can't benefit from

your attack." (Italics added.) The court also told Macias, "we have to take the jurors at

their word . . . when they tell us [']we can be fair and impartial.[']"

       As already noted, we review the legal correctness of the court's ruling, not the

court's reasoning. (People v. Zapien, supra, 4 Cal.4th at p. 976.)

       Here, we conclude the court properly denied Macias's mistrial motion and did not

violate his constitutional rights to due process and a fair trial, including his right to a fair

and unbiased jury. The California Supreme Court repeatedly has held that, as a matter of

policy, a defendant who commits an act of violence against his attorney in the presence of

a jury is not permitted to profit from his own misconduct and may not complain on

appeal about the possible effect on jurors of his own misconduct. (People v. Huggins

(2006) 38 Cal.4th 175, 201 (Huggins); People v. Lewis and Oliver (2006) 39 Cal.4th 970,

1030 (Lewis and Oliver).)

       In Huggins, the defendant struck one of his two defense attorneys in front of the

jury, knocking her to the ground and causing the jurors to react in alarm. (Huggins,

supra, 38 Cal.4th at pp. 200-201.) Following his assault on counsel, the defendant

unsuccessfully requested that the trial court allow him to voir dire the seated jurors on

whether each could remain impartial. (Ibid.) On appeal the defendant claimed the trial

                                               23
court violated his federal and state constitutional rights to an impartial jury by denying

his motion to voir dire the jurors to determine whether his misconduct had prejudiced

them. (Ibid.) Quoting its prior policy statement in People v. Williams (1988) 44 Cal.3d

1127 (Williams) (hereafter sometimes Williams policy), the Supreme Court rejected this

claim, stating:

          "[W]e . . . noted [in Williams] that 'As a matter of policy, a defendant
          is not permitted to profit from his own misconduct.' ([Williams,] at
          p. 1156.) We adhere to that view here. Defendant may not
          complain on appeal about the possible effect on jurors of his own
          misbehavior after the jury has been sworn." (Huggins, supra, at p.
          201, italics added.)

       In Lewis and Oliver, which is virtually on point, both defendants claimed the trial

court erred and violated their rights under the Fifth and Sixth Amendments to the federal

Constitution by denying their motion for mistrial after they assaulted counsel in the

presence of the jury and thereby disrupted the prosecution's case. (Lewis and Oliver,

supra, 39 Cal.4th at pp. 1029-1030.) Again quoting its strong policy statement in

Williams, supra, 44 Cal.3d at page 1156, the Supreme Court rejected the defendants'

claims, stating:

          "In [Williams, supra,] 44 Cal.3d 1127, we affirmed the judgment in
          the face of a claim that disruptive courtroom conduct had prejudiced
          the jury. [Citation.] 'As a matter of policy, a defendant is not
          permitted to profit from his own misconduct.' (Id. at p. 1156.) We
          adhere to that commonsense view here. Defendants may not
          complain on appeal about the possible effect on jurors of their own
          calculated misdeeds." (Lewis and Oliver, supra, 39 Cal.4th at p.
          1030, italics added.)

       Lewis and Oliver and Huggins govern our decision here. Like the defendants in

those cases, Macias attacked his own counsel in the presence of the jury. Like the

                                             24
defendant in Lewis and Oliver, he thereby disrupted the prosecution's presentation of

evidence and then used his courtroom misconduct as grounds for seeking a mistrial. "'As

a matter of policy, a defendant is not permitted to profit from his own misconduct.'"

(Lewis and Oliver, supra, 39 Cal.4th at p. 1030; Huggins, supra, 38 Cal.4th at p. 201;

Williams, supra, 44 Cal.3d at p. 1156.) Under this strong and well-established Williams

policy prohibiting a defendant in a criminal case from profiting from his or her courtroom

misconduct, Macias could not disrupt courtroom proceedings by attacking his counsel

and then be permitted to successfully rely on his own courtroom misconduct and the

resulting disruption of the proceedings as grounds for a mistrial. (Lewis and Oliver, at p.

1030; Huggins, at p. 201; Williams, at p. 1156.) We observe that, here, the trial court

appropriately explained to Macias in denying his mistrial motion that "you can't benefit

from your attack" and "the benefit would be that your case gets put off into the future,

and then the witnesses get killed or witnesses could go to prison or get transferred, and so

it's hard to reconstruct this case six months later." It is self-evident that to grant a

defendant a mistrial in a criminal prosecution based on the defendant's courtroom attack

on his or her attorney in the presence of a jury would create a powerful incentive for

defendants to engage in such violence, particularly in gang cases such as the instant one,

in order to profit from such misconduct by derailing the judicial proceedings, obtaining a

new trial, and thereby delaying their prosecution. This court will not countenance such

an outcome.

       In light of our decision to enforce the Williams policy disallowing a defendant in a

criminal case from profiting from his or her courtroom misconduct, we need not, and do

                                               25
not, apply the inherent bias and circumstantial bias tests that this court applied in Cissna,

supra, 182 Cal.App.4th 1105 (discussed, ante). The need for such analysis is obviated by

the dispositive Williams policy that applies here and governs our determination as to this

issue.

         For all of the foregoing reasons, we conclude the court properly denied Macias's

mistrial motion and did not violate his constitutional rights to due process and a fair trial,

including his right to a fair and unbiased jury.

                     II. FORFEITURE OF THE RIGHT TO COUNSEL

         Macias also contends the judgment must be reversed because the court erred and

violated his federal constitutional rights to counsel and due process in ruling just prior to

closing arguments that he had forfeited his right to counsel by assaulting his counsel in

front of the jury. We reject this contention.

         A. Background

         During the in camera Marsden hearing held on December 14, 2012, the day after

Macias slashed his attorney, the court told Macias:

            "I'm not going to appoint a new attorney to represent you. I'm going
            to find that you forfeited your right to an attorney, and so you're
            going to represent yourself.

            "The way it's going to go is we're going to have a hearing. Mr. Cline
            is going to be your standby attorney. So like I said, if you act out or
            act like a fool or something, and I have to take you out of the
            courtroom, then Mr. Cline would sit there and represent your interest
            in court, but he wouldn't be arguing—well, he would be arguing on
            your behalf or he would be listening to what other people say.
            Okay?



                                                26
           "So then . . . the rules are going to be that you don't talk unless I ask
           you to speak. You don't just get to say whatever you want to say.
           You can listen to what other people say in their closing argument.
           And you're not going to shake your head and get all animated.
           You're just going to sit there quietly.

           "And then when it's your turn, you're going to get up and say what
           you want—I mean, what you want within the purview of this case.
           If you say things that are objectionable, [the prosecutor] is going to
           object, and if I sustain it, then you can't say that anymore.

           "If you don't behave yourself—you're not going to stand up. You're
           going to be seated. But if you don't behave yourself, you start
           cussing or trying to act like a hard guy, then you're going to be
           removed from the courtroom, and Mr. Cline will step up to the
           podium and say something, or say nothing, but he'll be there
           representing your interests.

           "Okay. So that's the way it's going to go." (Italics added.)

       Later, the court told Macias in denying his mistrial motion:

           "Like I said before, . . . you forfeited your right to counsel by
           participating in that attack, and so that's why you're pro per now. . . .

           "[T]he law is very clear that when you attacked your attorney in the
           way you did, in a very violent manner, . . . you forfeit[ed] your right
           to have counsel sitting next to you." (Italics added.)

       B. Analysis

       "Both the United States Constitution and the California Constitution provide the

right of a criminal defendant to have the assistance of counsel in his defense." (King v.

Superior Court (2003) 107 Cal.App.4th 929, 937 (King), citing U.S. Const., 6th & 14th

Amends.; Cal. Const., art. I, § 15.) "Because it is essential to a fair trial, the right to

counsel has long been considered 'fundamental.'" (King, at p. 933, citing Gideon v.




                                               27
Wainwright (1963) 372 U.S. 335, 343.) However, "[d]espite the fundamental nature of

this right, it is not absolute." (King, at p. 933.)

       Although the United States Supreme Court has never directly addressed forfeiture

through misconduct of the right to counsel, as the Attorney General points out, it has

upheld the forfeiture10 of a criminal defendant's trial-related constitutional rights, such as

the right to be present during trial, under certain circumstances involving serious

misconduct. For example, in Illinois v. Allen (1970) 397 U.S. 337 (Allen) the defendant

"argue[d] with the [trial] judge in a most abusive and disrespectful manner" (id. at p.

339), told the judge that "you're . . . going to be a corpse here" (id. at p. 340), and "tore

the file which his attorney had and threw the papers on the floor." (Ibid.) When the

defendant continued his abusive behavior after the judge warned him he would be

removed from the courtroom if he engaged in "[o]ne more outbreak," the judge ordered

the trial to proceed in the defendant's absence. (Id. at pp. 340-341.) Upholding the trial

court's expulsion of the defendant from the courtroom, the Supreme Court stated:

           "Although mindful that courts must indulge every reasonable
           presumption against the loss of constitutional rights, [citation], we
           explicitly hold today that a defendant can lose his right to be present
           at trial if, after he has been warned by the judge that he will be
           removed if he continues his disruptive behavior, he nevertheless
           insists on conducting himself in a manner so disorderly, disruptive,
           and disrespectful of the court that his trial cannot be carried on with
           him in the courtroom." (Allen, at p. 343, italics added.)


10      Unlike waiver, which is the intentional relinquishment of a known right,
"'forfeiture results in the loss of a right regardless of the defendant's knowledge thereof
and irrespective of whether the defendant intended to relinquish the right.'" (King, supra,
107 Cal.App.4th at p. 938, quoting United States v. Goldberg (3rd Cir. 1995) 67 F.3d
1092, 1100.)
                                               28
       Like the fundamental right to be present at trial, the Sixth Amendment right to

counsel also may be forfeited by a criminal defendant's serious misconduct that

endangers the safety of defense counsel, and the right to counsel may be forfeited in

certain circumstances even without a prior warning. For example, in King, supra, 107

Cal.App.4th 929, the trial court conducted a hearing to determine whether the defendant

had forfeited his right to counsel. (Id. at p. 934.) Based on evidence that the defendant

had engaged in a pattern of serious misconduct, violence, and threats of violence against

a succession of court-appointed attorneys, the trial court found the defendant had

forfeited his right to counsel. (Id. at pp. 934, 936.) The defendant sought writ relief in

the Court of Appeal, contending that, under Allen, supra, 397 U.S. 337, he was entitled to

both a warning and an opportunity to reclaim the right to counsel before he could be

deemed to have forfeited that right through misconduct. (King, at p. 941.)

       The Court of Appeal in King, supra, 107 Cal.App.4th 929─observing that the

United States Supreme Court in Allen and Taylor v. United States (1973) 414 U.S. 1711

"recognized that constitutional rights may be forfeited even absent a warning" (King, at


11      In Taylor, the United States Supreme Court rejected the defendant's contention
that his voluntary absence from trial could not be construed as an effective waiver of the
right to be present absent a showing that he knew or had been warned he had a right to be
present and the trial would continue in his absence. (Taylor v. United States, supra, 414
U.S. at p. 19.) The Supreme Court stated: "It is wholly incredible to suggest that
petitioner, who was at liberty on bail, had attended the opening session of his trial, and
had a duty to be present at the trial, [citation], entertained any doubts about his right to be
present at every stage of his trial. It seems equally incredible to us, as it did to the Court
of Appeals, 'that a defendant who flees from a courtroom in the midst of a trial—where
judge, jury, witnesses and lawyers are present and ready to continue—would not know
that as a consequence the trial could continue in his absence.'" (Id. at p. 20.)
                                              29
pp. 940-941)─stated that Allen and Taylor, read together, "permit loss of a constitutional

right in certain circumstances based on misconduct, even without a prior warning."

(King, at p. 943, italics added.) The King court also explained that, "[i]n rare cases where

the misconduct is so serious that lesser measures are patently inadequate to protect

counsel, an accused may forfeit his right to counsel without employing the patently

inadequate lesser measures," such as a warning. (Id. at p. 934.) The Court of Appeal

reasoned that "[c]ourts cannot tolerate misconduct by a defendant that seeks to delay or

disrupt judicial proceedings. Even less tolerable is such conduct which additionally

endangers the safety of defense counsel or others. When a criminal defendant engages in

the most serious misconduct towards counsel, it is simply 'incredible' that the defendant

would not realize his right to counsel may be lost." (Id. at p. 943, italics added.)

       Here, the record (discussed, ante) shows that Macias waited to slash his attorney

until after Macias testified in his own defense and the prosecution was presenting its first

rebuttal witness. The record supports a finding that Macias attacked his attorney with the

razor blade in the presence of the jury in order to create a clear conflict with his court-

appointed counsel, and thereby disrupt and delay the court proceedings. We agree with

the King court's rationale that "[c]ourts cannot tolerate misconduct by a defendant that

seeks to delay or disrupt judicial proceedings" (King, supra, 107 Cal.App.4th at p. 943)

and that a defendant's serious misconduct that "endangers the safety of defense counsel

[is] [e]ven less tolerable." (Ibid.) This is one of those "rare cases where the misconduct

[was] so serious" (id. at p. 934) that the accused─Macias─forfeited his right to counsel

without the trial court's use of lesser measures, such as a warning. As previously noted,

                                              30
Macias was already I-bolted to the floor when he slashed his attorney. Granting a

continuance to allow new appointed counsel to become familiar with the case would have

been akin to granting a mistrial in the sense that, as the trial court explained to Macias,

the benefit to Macias would have been that the "case gets put off into the future, and then

the witnesses get killed or witnesses could go to prison or get transferred, and so it's hard

to reconstruct this case six months later."

       For all of the foregoing reasons, we conclude the court properly found that Macias

forfeited his right to counsel by slashing his counsel in the presence of the jury.

   III. EXCLUSION OF MACIAS FROM THE IN CAMERA QUESTIONING OF THE
        JURORS FOLLOWING HIS COURTROOM ATTACK ON HIS ATTORNEY

       Macias next contends the judgment must be reversed because he was deprived of

his federal constitutional right to be either present or represented by counsel during the

questioning of the jury after his courtroom attack on his attorney. We reject this

contention.

       A. Background

       During a morning hearing outside the presence of the jury on December 14,

2012─the day after Macias's courtroom attack on his attorney, Burgener─the court found

that a conflict existed between Burgener and Macias and then relieved Burgener as

Macias's counsel. As discussed, ante, the court then found Macias had forfeited his right

to counsel as he should not benefit from his own wrongdoing, but it appointed Stephen

Cline as Macias's "standby counsel."




                                              31
       Cline responded by telling the court: "[I]t's my understanding I'm going to be the

one sitting in there while you conduct this hearing, knowing absolutely nothing about this

case or what's transpired. So I think that if he's pro per, he's pro per. That puts us in a

very difficult position, because I don't know how I can act effectively on this issue if I

don't have any clue as to what has transpired in the case, quite frankly. [¶] And I'm

happy to sit in there, but I don't know anything about this case to effectively do anything

while I'm in there."

       The court replied by telling Cline:

          "Well, I think the bottom line is that what you know is all you need
          to know. You know that we conducted a trial, that during the course
          of the trial yesterday Mr. Macias attacked Mr. Burgener, and many
          of the jurors witnessed that. A couple of the jurors have even
          been—apparently have been interviewed by law enforcement. [¶]
          And so those—that's all in play. And so, you know, it's a very
          simple question. Can you[, the jurors,] be fair and impartial? Can
          you put that aside and decide this case on what you heard in court,
          not what you saw in court? And so I think that you can—you're a
          very experienced attorney. You're one of the premier defense
          attorneys in San Diego, and so I think that you're going to get up to
          speed pretty fast, especially when you hear what questions are asked
          by Mr. Puglia [Polina's counsel] and Mr. Guthrie [Quinteros's
          counsel]."

       The court also stated that, "for security reasons," Macias was not going to be in the

room with the jurors "one-on-one." The court added that, "[t]o have them staring face-to-

face with him after what they saw, and I don't think it's appropriate and it's not safe."

       The court then conducted the in camera hearing with the 15 jurors and alternate

jurors. The prosecutor, a supervising deputy district attorney, Polina's and Quinteros's

attorneys, and Macias's standby counsel, Cline, were present; Macias, Polina, and


                                              32
Quinteros were not present. Before individually questioning each juror and alternate

juror, and outside their presence, the court noted it would not be appropriate for the

attorneys to ask questions. The supervising district attorney asked whether the court

found that Macias, who was in propria persona, had forfeited his right to be present at the

hearing. The court responded:

            "At this particular hearing, I'm doing that for security reasons, and
            also I find that it would be very intimidating for a juror to sit here
            and have them sit in close proximity to [Macias] while they're in
            basically a vacant courtroom. We've already asked much of them to
            actually come back after all this, after all they saw, and sit as jurors.

         The court then individually questioned each juror and alternate juror outside the

presence of the other jurors and alternate jurors.

         B. Applicable Legal Principles (Criminal Defendant's Right To Be Present at
Trial)

         The California Supreme Court has explained that "'[a] criminal defendant's right to

be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of

the federal Constitution, as well as by article I, section 15 of the California Constitution

and by sections 977 and 1043 of the California Penal Code. [Citations.] A defendant,

however, "does not have a right to be present at every hearing held in the course of a

trial." [Citation.] A defendant's presence is required if it "bears a reasonable and

substantial relation to his full opportunity to defend against the charges." [Citation.]'

[Citations.] 'Sections 977 and 1043 do not require the defendant's presence, or a written

waiver, unless that standard has been met. [Citations.]' [Citation.] 'The defendant must




                                               33
show that any violation of this right resulted in prejudice or violated the defendant's right

to a fair and impartial trial.'" (People v. Wallace (2008) 44 Cal.4th 1032, 1052.)

       1. Standard of review

       "An appellate court applies the independent or de novo standard of review to a

trial court's exclusion of a criminal defendant from trial, either in whole or in part, insofar

as the trial court's decision entails a measurement of the facts against the law." (People v.

Waidla (2000) 22 Cal.4th 690, 741.)

       C. Analysis

       Macias complains that "[he] was involuntarily deprived of both his own personal

presence and that of counsel at the in camera hearings with jurors." He asserts that "[his]

presence at this hearing bore a very substantial relation to his ability to defend against the

charges"; and that "[he] was prevented, either by personal observation or through

counsel, from observing the jurors' reactions and body language, which is, generally, the

very basis for reviewing courts' deference to determinations of a juror's impartiality by a

trial judge." Thus, Macias maintains, "[b]ecause of his exclusion, [he] was given no

opportunity or ability to challenge the trial court's conclusions." These assertions are

unavailing.

       For reasons discussed, ante, we have already concluded that the court properly

found that Macias forfeited his right to counsel by slashing his counsel in the presence of

the jury. Nevertheless, as noted, Macias's standby counsel, Cline, was present on

Macias's behalf (along with the prosecutor, the supervising deputy district attorney, and



                                              34
Polina's and Quinteros's attorneys) during the court's questioning of the jurors and

alternate jurors.

       Macias's contention that the judgment must be reversed because he was personally

excluded from the in camera proceeding is premised on his claim that he had a federal

constitutional right to be personally present. Macias, however, had no such right. In

United States v. Gagnon (1985) 470 U.S. 522 (Gagnon), a case in which four

codefendants were charged with conspiracy to distribute cocaine, a juror expressed

concern that one of the four defendants had been sketching members of the jury during

trial. (Id. at p. 523.) After ordering the defendant to stop his sketching, the trial court

conducted an in camera hearing to ascertain whether the sketching had prejudiced the

juror against the defendant. (Ibid.) The defendant's counsel was present during the

hearing, but the defendant was not. (Id. at pp. 523-524.) Following the hearing, none of

the defendants moved to disqualify the juror who had witnessed the sketching. (Id. at p.

524.) On appeal, each defendant claimed the trial court's in camera discussion with the

juror in his absence violated (among other things) his right to be present at all stages of

the trial. (Id. at pp. 524-525.)

       Rejecting that claim, the United States Supreme Court in Gagnon explained that

"'[t]he mere occurrence of an ex parte conversation between a trial judge and a juror does

not constitute a deprivation of any constitutional right. The defense has no constitutional

right to be present at every interaction between a judge and a juror, nor is there a

constitutional right to have a court reporter transcribe every such communication.'"



                                              35
(Gagnon, supra, 470 U.S. at p. 526, quoting Rushen v. Spain (1983) 464 U.S. 114, 125-

126, last italics added.)

       We conclude that Macias, like the defendants in Gagnon, had no federal

constitutional right to be personally present during the court's in camera questioning of

the jurors and alternate jurors. (Gagnon, supra, 470 U.S. at p. 526.) Accordingly, we

reject his contention that the judgment must be reversed because he was personally

excluded from that proceeding.

                                   IV. JAIL CLOTHING

       Macias also contends the judgment must be reversed because he was deprived of

his federal constitutional right to a fair trial when "he was compelled to appear in front of

the jury in jail clothing." We reject this contention.

       A. Background

       On Friday, December 14, 2012, the day after Macias attacked his attorney in the

courtroom with a razor blade, Macias appeared in court, outside the presence of the jury,

in his jail clothing. The court asked standby counsel, Cline, whether Macias had a shirt

he could wear in front of the jury, and Cline indicated that Macias did not have other

clothing. The following exchange then took place between the court and the bailiff

indicating there would be no delay in the proceedings:

           "[The court]: Well, I'm not going to delay the proceedings because
           he doesn't have clothes right now. I mean, he can't set up his own
           error by committing an offense that he did, and then saying, ['Oh], I
           don't have clothes now, so therefore I shouldn't be in trial.['] [¶] So
           he's going to be in his greens, and they don't say county jail on them,
           but just the shirt does not say county jail on the front. Does it say
           county jail on the back?

                                             36
          "[The bailiff:] Yes, your Honor.

          "[The court:] Well, as long as he sits down and doesn't move
          forward, and then no one is going to see that. [¶] Okay. And so
          maybe he can—maybe we can get some more clothes for him for
          next week."

       At the next court hearing, on Wednesday, December 19─outside the presence of

the jury─Macias again appeared in court in his jail attire. He informed the court that he

was "on disciplinary isolation" as a result of his assault on his attorney and he had not

been able to contact his family to have them bring him clothing. Shortly thereafter, the

court indicated it was not going to take a recess to give Macias time to get clothing and

then told Macias, "The clothes you were wearing were taken as evidence in the stabbing

of Mr. Burgener, and so that's why you don't have those clothes now." The court then

indicated it would instruct the jury not to consider the fact that Macias was not wearing

his "dress-out clothes."

       Macias then made a motion for mistrial "on the same grounds, the clothes," which

the court denied, stating:

          "I understand you're making a motion for mistrial. I'm going to deny
          it. I guess the jurors have been told on prior occasion that you guys
          were all in county jail. It's no secret to them. And so I don't think
          it's that prejudicial for you on this day not to have clothes. [¶] I
          mean, I guess to me if they can set aside the fact that you sliced your
          attorney in front of them, and they said they could, and they can be
          fair and impartial, I don't think that you[r] wearing green jail clothes
          is going to influence them one way or another."

       When the trial resumed, the court gave the following instruction to the jury:

          "[Macias] is in green jail clothes rather than his normal collared shirt
          and pants, and his clothes were taken during the course of the

                                             37
          investigation of what happened on December 13th, and so that's why
          he's wearing jail clothes. [¶] And again, you're not to consider that
          fact in your deliberations. And that has nothing to do with what
          happened on July 5th, 2010, as we talked about many times."

       B. Applicable Legal Principles

       As a matter of federal constitutional due process and equal protection, "the State

cannot . . . compel an accused to stand trial before a jury while dressed in identifiable

prison clothes . . . ." (Estelle v. Williams (1976) 425 U.S. 501, 512; People v. Taylor

(1982) 31 Cal.3d 488, 494.) The rule entitling a defendant to be tried in ordinary clothing

is designed to preserve the presumption of innocence. (People v. Taylor, at p. 494.) A

defendant's appearance in jail clothing "is a constant reminder to the jury that the

defendant is in custody, and tends to undercut the presumption of innocence by creating

an unacceptable risk that the jury will impermissibly consider this factor." (Ibid.)

       Where the trial court compels a defendant to be tried in jail clothes, the reviewing

court applies the harmless error analysis of Chapman v. California (1967) 386 U.S. 18.

(People v. Taylor, supra, 31 Cal. 3d at pp. 499-500.) Under the Chapman harmless error

standard, "'before a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt.'" (People v.

Taylor, at p. 499, quoting Chapman, at p. 24.)

       C. Analysis

       We first conclude the court erred and impermissibly infringed upon Macias's

federal constitutional rights to due process, a fair trial, and equal protection by refusing to

order a short continuance of the trial proceedings to provide Macias time to obtain more


                                              38
civilian clothes after the clothes he was wearing at the time of his courtroom slashing

attack on his attorney were seized as evidence. (Estelle v. Williams, supra, 425 U.S. at p.

512; People v. Taylor, supra, 31 Cal.3d at p. 494.)

       Thus, the issue we must decide is whether the federal constitutional error was

harmless beyond a reasonable doubt under the applicable Chapman harmless error

standard. (People v. Taylor, supra, 31 Cal.3d at p. 499.)

       We conclude the federal constitutional error was harmless beyond a reasonable

doubt. We begin our analysis by noting the obvious: Macias's appearance in court in jail

clothes was a direct result of his criminal act of slashing his attorney's face in the

presence of the jury and the ensuing seizure of his civilian clothes as evidence of that

crime and his placement in disciplinary custodial isolation. As we have already

concluded, the record supports a finding that Macias attacked his attorney in order to

create a clear conflict with his court-appointed counsel, and thereby disrupt and delay the

trial proceedings. That attack also provided what Macias considered to be a legitimate

basis for claiming on appeal that the court should have granted his motion for mistrial, a

claim we have rejected.

       Macias asserts that, "[w]hile [he] does not claim the evidence is insufficient, per

se, to support the verdicts, he did testify on his own behalf and explained to the jury that

he was not involved in a conspiracy and did not intend to commit murder."

Acknowledging that "he essentially admitted to participating in the assault on Ortiz" in

the prison yard, he asserts "[h]is defense was plausible" and suggests his appearance in

court in jail clothing "played [a] part in the jury's rejection of his defense."

                                               39
        However, as the court pointed out to Macias, it was no secret to the jury that he

was being held in county jail. It was also no secret to the jury that Macias was a prison

inmate when, as he acknowledged in his testimony, he participated in the prison yard

attack on Ortiz. Macias testified that, during that attack, he removed a razor from his

mouth and began "slicing" Ortiz. Furthermore, a video of the prison yard attack on Ortiz

was played for the jury, and Ortiz testified that the video accurately depicted the attack

about which he had already testified. Thus, the jury was well aware before Macias

appeared in court dressed in jail clothes that he was a prison inmate when he attacked

Ortiz, and that he was still in custody.

        In addition, in People v. Taylor, supra, 31 Cal.3d 488, which Macias cites, the

Supreme Court observed that, although an instruction given by the trial court "inform[ed]

the jury not to be influenced by the fact of defendant's arrest or because he was charged

with a crime or brought to trial, there [was] no mention of the defendant's jail status nor

his jail clothing." (Id. at p. 501.) The People v. Taylor court concluded, "Thus, the

instruction did not dispel the prejudice." (Ibid.)

        Here, however, the trial court did give an appropriate instruction to dispel any

prejudice that might have arisen as a result of Macias's wearing jail clothing in court

following his courtroom attack on his attorney. As already noted, the court instructed the

jury:

           "[Macias] is in green jail clothes rather than his normal collared shirt
           and pants, and his clothes were taken during the course of the
           investigation of what happened on December 13th, and so that's why
           he's wearing jail clothes. [¶] And again, you're not to consider that
           fact in your deliberations. And that has nothing to do with what

                                             40
           happened on July 5th, 2010, as we talked about many times."
           (Italics added.)

       On the record before us, we are confidently able to conclude that the erroneous

infringement on Macias's right to appear in court in civilian clothing was harmless

beyond a reasonable doubt.

                             V. CLAIM OF CUMULATIVE ERROR

       Next, Macias contends the judgment must be reversed because cumulative error

deprived him of his federal constitutional right to due process. We reject this contention.

       A. Applicable legal principles

       A series of trial errors, though harmless when considered independently, may in

some circumstances rise by accretion to the level of prejudicial, reversible error. (People

v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is entitled to a fair trial, but

not a perfect one. (Ibid.)

       B. Analysis

       Macias asserts that "[t]he combined effect of each of the errors in which [he] was

deprived of constitutional protection─his right to an unbiased jury, his right to counsel,

his right to be present at all stages of the trial, and his right to appear in civilian clothing

rather than in jail garb─cannot be found to be harmless."

       We conclude Macias has failed to meet his burden of showing prejudicial

cumulative error. He has not shown he was denied a fair trial.




                                               41
                     VI. COUNT 2 SENTENCING ERROR (§ 654)

      Last, Macias contends the 29-year sentence the court imposed for his count 2

attempted murder convictions and the related sentence enhancements "must be stricken"

under section 654. The Attorney General acknowledges Macias's count 2 sentence

should be stayed under section 654 because Macias was punished separately for his count

1 conviction of conspiracy to murder Ortiz and "both crimes had the same objective and

intent." We conclude the judgment must be modified to stay under section 654 the

sentence imposed for Macias's count 2 conviction.

      A. Background

      As pertinent here, the court sentenced Macias to an indeterminate prison term of

50 years to life for his count 1conviction of conspiracy to commit murder, plus a

consecutive determinate upper term of 18 years for his count 2 attempted murder

conviction, plus a consecutive one-year term for the count 2 personal-use-of-a-weapon

enhancement; plus a consecutive 10-year term for the count 2 gang enhancement.

      B. Applicable Legal Principles (§ 654)

      Section 654, subdivision (a) provides in part:

          "An act or omission that is punishable in different ways by different
          provisions of law shall be punished under the provision that provides
          for the longest potential term of imprisonment, but in no case shall
          the act or omission be punished under more than one provision."

      Section 654 "precludes multiple punishment for a single act or omission, or an

indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591) and ensures

the defendant's punishment will be commensurate with his or her criminal culpability


                                           42
(People v. Kramer (2002) 29 Cal.4th 720, 723). If a defendant suffers two convictions

and punishment for one is barred by section 654, "that section requires the sentence for

one conviction to be imposed, and the other imposed and then stayed." (Deloza, at pp.

591-592, italics added.)

       Whether a course of conduct is indivisible for purposes of section 654 depends on

the intent and objective of the defendant, not the temporal proximity of the offenses.

(People v. Hicks (1993) 6 Cal.4th 784, 789.) Generally, if all the criminal acts were

incident to one objective, then punishment may be imposed only as to one of the offenses

committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Garcia (1995)

32 Cal.App.4th 1756, 1781.)

       C. Analysis

       Macias correctly argues that the consecutive sentence the court imposed for his

count 2 attempted murder conviction and the related count 2 enhancements must be

stayed under section 654. Given the prohibition against multiple punishment in section

654, punishment for both conspiracy and an underlying substantive offense is

"impermissible when the conspiracy contemplated only the act[s] performed in the

substantive offense[s] [citations], or when the substantive offenses are the means by

which the conspiracy is carried out." (People v. Ramirez (1987) 189 Cal.App.3d 603,

615; People v. Cavanaugh (1983) 147 Cal.App.3d 1178, 1182 ["To punish for a

conspiracy to commit illegal acts and for the illegal acts themselves violates the [section

654 prohibition against multiple punishments] if the conspiracy has no objective other

than the specific acts charged."].)

                                             43
       Here, as the Attorney General acknowledges, Macias's base sentence for his count

2 conviction of attempted murder for his act of attempting to murder Ortiz in the prison

yard must be stayed under section 654 because (1) he was sentenced to 50 years to life

for his count 1 conviction of conspiracy to commit murder, (2) his intent and objective in

committing both crimes was the same─to murder Ortiz─and, thus, (3) the section 654

prohibition against multiple punishment proscribes the imposition of additional

punishment for Macias's attempted murder conviction. (§ 654; People v. Ramirez, supra,

189 Cal.App.3d at p. 615; People v. Cavanaugh, supra, 147 Cal.App.3d at p. 1182).

       Furthermore, both the consecutive one-year term for the count 2 personal-use-of-

a-weapon enhancement and the consecutive 10-year term for the count 2 gang

enhancement also must be stayed under section 654 because, "[w]here the base term of a

sentence is stayed under section 654, the attendant enhancements must also be stayed."

(People v. Bracamonte (2003) 106 Cal.App.4th 704, 709, disapproved on other grounds

by People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.); 3 Witkin & Epstein, Cal.

Criminal Law (4th ed. 2012) Punishment, § 271, p. 429 ["The stay of a sentence

automatically stays a sentence enhancement imposed with it, because the enhancement

cannot be imposed independently of the underlying sentence."].)

       Accordingly, the judgment must be modified to stay the 29-year sentence the court

imposed for Macias's count 2 conviction of attempted murder. As modified, the

judgment is affirmed and the matter is remanded to the superior court with directions to

correct the abstract of judgment.



                                            44
                                     DISPOSITION

      The judgment is modified to stay execution of the 29-year sentence the court

imposed for Macias's count 2 conviction of attempted murder. The judgment is affirmed

as modified. The matter is remanded to the superior court with directions that the clerk

prepare an amended abstract of judgment to reflect this modification to the judgment and

to forward a certified copy to the Department of Corrections and Rehabilitation.


                                                                               NARES, J.

WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.




                                            45
