Filed 2/27/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S089609
           v.                        )
                                     )                         Kings County
ANTHONY GILBERT DELGADO,             )                   Super. Ct. No. 99CM7335
                                     )
           Defendant and Appellant.  )
____________________________________)


        Defendant, Anthony Gilbert Delgado, killed two fellow inmates while
serving a 25-year-to-life sentence in Corcoran State Prison. A jury convicted him
of two counts of first degree murder,1 with the special circumstances of lying in
wait2 and multiple murders;3 two counts of assault by a life prisoner with malice
aforethought,4 with findings that the assaults proximately caused the victims‟
deaths; battery by a prisoner on a correctional officer;5 and possession of a sharp
instrument by a prisoner.6 It also found he had suffered two prior felony
convictions within the meaning of the “Three Strikes” law.7

1      Penal Code sections 187, subdivision (a) and 189. Further undesignated
statutory references are to the Penal Code.
2      Section 190.2, subdivision (a)(15).
3      Section 190.2, subdivision (a)(3).
4      Section 4500 (hereafter aggravated assault by a life prisoner).
5      Section 4501.5.
6      Section 4502, subdivision (a).
7      Sections 667, subdivisions (d), (e) and 1170.12.



                                          1
        The jury returned a death verdict and the trial court entered a conforming
judgment,8 as well as two consecutive terms of 25 years to life for the battery and
weapon possession counts. This appeal is automatic. We affirm the judgment in
its entirety.
                                     I. FACTS

        A. Guilt Phase

            1. Murder of Frank Mendoza
        On September 30, 1998, defendant and Frank Mendoza shared a cell.
Around 11:15 p.m., an officer noted that both men were lying on their bunks
watching television. About 25 minutes later, defendant called out, and Officer
Carmona went to investigate. He saw Mendoza slumped forward on his knees
between the two beds. Defendant calmly walked over to Mendoza, lifted him up
by a cloth wrapped around his neck, and dropped him back to the ground.
Mendoza had been strangled to death. A pillowcase covered his face, secured by a
torn bed sheet. A white sock and second torn sheet were tied around his mouth.
Written on the back of Mendoza‟s T-shirt were the words: “There‟s consequences
to everything. He paid his and I‟m to pay mine, too. Toro.”
        Defendant gave a taped statement about the killing and reenacted the crime.
Mendoza had verbally abused defendant and bragged about his prior status as a
lieutenant in the Nuestra Familia prison gang. Defendant warned he would “take
[Mendoza] out” if he continued this behavior. Mendoza persisted, so defendant
decided to kill him. Already serving a life sentence, defendant had nothing more
to lose. Defendant “knew exactly when [he] was going to do it.” After nighttime

8      The court imposed sentences of death on the murder convictions and the
convictions for aggravated assault by a life prisoner, but stayed the latter two
sentences pursuant to section 654.



                                          2
cell check, he covered the overhead light and wedged paper in the cell door to
prevent entry. Mendoza seemed nervous, so defendant watched television to put
him at ease. When the opportunity arose, defendant choked his victim for over
four minutes, which he timed. Mendoza struggled, but eventually defendant could
“fe[el] the life come out of him.” Defendant tied a sheet and a sock around his
neck, pulling it as tight as he could. He watched Mendoza for a while to make
sure he was dead. Defendant felt no remorse. He said Mendoza “had it coming.”
He wrote a message on Mendoza‟s T-shirt and watched more television. He then
removed the paper from the door and alerted the guards.

           2. Murder of Kevin Mahoney
      On July 2, 1999, defendant and inmate Kevin Mahoney, Jr., were placed in
an exercise yard together. About two hours later, a security alarm summoned
Officer Robert Todd to the yard. Mahoney was lying facedown in a pool of blood.
He had no pulse or respiration. There were lacerations and bruises on his face and
body, and a subdural hemorrhage at the back of his head. Two T-shirts were tied
around his neck. A nearby wall bore blood splatters and a “happy face” drawn in
blood. Defendant‟s feet and legs were covered in blood. While waiting in a
holding cell, defendant told one officer, “You guys gave me Three Strikes on
some chicken shit fight, so now I‟m going to earn mine. I got two now, and I got
one more to go.”
      A surveillance tape captured the attack. When defendant and Mahoney
were placed in the yard, they shook hands, then walked and sat separately for
several minutes. Later they walked together. Approximately 52 minutes after
they entered the yard, defendant attacked Mahoney without warning, punching and
kicking him repeatedly for about 30 seconds. After the attack, Mahoney sat on the
ground as defendant paced back and forth. Defendant attacked again about 12



                                         3
minutes later, striking Mahoney several times in the head with a shoe. Mahoney
remained seated; defendant continued to pace. A third attack occurred about 27
minutes after the second. Defendant grabbed Mahoney from behind and dragged
him into a shadowy corner. He choked his victim for over four minutes, then
picked up a T-shirt and tied it around Mahoney‟s neck. Defendant resumed
pacing, repeatedly returning to the body and stomping on it.
       Mahoney was strangled to death. His blunt force injuries were consistent
with having suffered repeated blows.
       Again, defendant gave a taped statement and reenacted the crime. He
decided to kill Mahoney as soon as they were put in the yard together, and put him
at ease by telling him that he wanted no trouble. Defendant judged Mahoney an
“[e]asy” mark. Defendant had planned to lunge at his victim and snap his neck,
but he was unable to grip him securely. He resorted to punching and kicking
instead. Defendant attacked Mahoney three times “until I was able to get him in a
choke hold and drag him off into the corner. And that‟s where I wanted him.”
Defendant explained that he moved Mahoney to that location because it would be
more difficult for guards to shoot him. He choked the struggling man until he
stopped breathing, then tied torn T-shirts around his neck. Defendant could hear
Mahoney “gurgling in his [own] blood” which angered him. Intent on “caus[ing]
as much injury . . . as I could,” he used his foot to repeatedly slam Mahoney‟s
head into the concrete.
       Defendant told an investigator, “I did it so what, what can you do to me[?]
No one can do nothing to me.” As to motive, he said: “I‟ve [sic] snapped when
. . . they gave me life for that stupid ass shit . . . a little over a[] year and a half ago.
When they gave me three strikes for that shit, I told myself, made a deal with the
devil, you give me the opportunity man to pick up each murder for each one of
those strikes we‟re cool. So that‟s . . . my pack [sic] with the devil man, I already

                                             4
got two that‟s my two strikes. I‟m gonna . . . earn each and every one of my
strikes.” He confirmed that he would kill again, saying “I hope there gonna [be]
ten or fifteen” more victims. According to defendant, “My whole objective from
here to now, now until I die, is to kill and to hurt, to cause as much destruction
how[ ]ever, where ever, when ever. And oh as far as I‟m concerned I got no more
soul and I don‟t give [a] fuck no more. Nothing else matters to me.”

           3. Battery of Correctional Officer Erik Mares
       Between the two murders, on October 20, 1998, defendant attacked
Correctional Officer Eric Mares. As he was being handcuffed to be taken to the
shower, defendant pulled away and ran to the middle of his cell with the handcuff
attached to one wrist. Asked what was bothering him, defendant replied, “[T]his
conversation‟s over and I‟m taking this to the next level.” Several officers
assembled for a cell extraction. When they directed pepper spray into the cell,
defendant rushed at the door holding his mattress to block the spray. An officer
ran in, but slipped immediately because a slick substance covered the floor. A
second officer also slipped and fell. Officer Mares managed to enter and grab
defendant‟s legs. Defendant jabbed at Mares several times with a pointed object.
Another officer pried the weapon from defendant‟s grasp. A sharp piece of plastic
with a cloth handle was recovered from the cell floor. A second piece of
sharpened plastic was found on defendant‟s bed. Mares had puncture holes in his
protective vest and cuts on his shoulder.
       Defendant admitted that he “[j]ust got bored,” and decided to provoke a cell
extraction. He had two weapons ready for the confrontation and put shampoo in
front of the cell door so entering officers would lose their footing. He admitted
stabbing Officer Mares in the shoulder and trying to get “a nice good solid straight




                                            5
thrust, if I was to get one in the neck or somethin[‟] like that, it would cause
serious injury. [¶] . . . I could get an eye or somethin[‟].”

           4. Aggravated Assault by a Life Prisoner
       Defendant was convicted of two counts of assault with a deadly weapon in
1994, and was serving a life sentence when the charged crimes occurred.

       B. Penalty Phase

           1. Prosecution
       The prosecution introduced evidence of 10 incidents between 1997 and
2000 during which defendant possessed various weapons and assaulted
correctional officers or another inmate. Several of these incidents are discussed in
further detail, post, at pages 44-50. Evidence also established defendant was
convicted of receiving stolen property in 1986, possession of a weapon by an
inmate in 1986, and second degree burglary in 1990.

           2. Defense
       The youngest of nine children sired by four different fathers, defendant was
neglected and abused by his alcoholic mother. As an infant, he was often left
crying, soiled, and hungry after his mother passed out. His 11-year-old sister
frequently assumed his care. As defendant got older, his mother would tie his
hands and lock him in a dark closet for extended periods. She beat him often with
a broom or a belt. She sometimes made him kneel on grains of rice, which cut his
bare knees. The family had little to eat, but his mother punished him if he
accepted food from neighbors.
       Defendant‟s cousin, Inocencio Ortega, recalled defendant‟s mother beating
him and locking him in the closet. Defendant sometimes hid at Ortega‟s house to
escape. Once defendant‟s older brothers gave him glue to sniff.




                                           6
       Defendant was removed from his mother‟s care at about seven years old.
When he was 11, he lived for over a year in a group home. Defendant had scars
on his wrists that resembled ligature marks. Slight of build, he was self-protective.
He exhibited low self-esteem and would destroy his things when he was upset or
frustrated. His fifth grade teacher described him as bright, funny, and trustworthy.
He responded well when treated with respect, but had a temper and lacked social
skills. He would frequently push and shove other children because he did not
know how to communicate. Told his behavior was inappropriate, he improved
and became popular with his classmates.
                                  II. DISCUSSION

       A. Guilt Phase Issues

           1. Presence of Correctional Officers During Attorney-Client
              Communications
       After killing Kevin Mahoney, defendant vowed in an interview that he
would kill again. (See ante, at pp. 4-5.) Concerned for defense counsel‟s safety,
and with her express agreement, the trial court ordered two correctional officers to
be present during all attorney-client consultations. They were bound by the
attorney-client privilege. Defendant contends that the trial court exceeded its
jurisdiction by accepting the parties‟ stipulation and purporting to extend the
attorney-client privilege to the correctional officers, who were unnecessary to the
consultation. He criticizes the court for failing to consider alternative
arrangements, such as physical restraints, that would have accomplished the same
goal without jeopardizing confidentiality. He argues that the court-sanctioned
intrusion deprived him of his federal and state constitutional rights to counsel, to
present a defense, to be present during all proceedings, and to fundamental due
process. He contends that the error was structural and reversible without a
showing of prejudice. We reject his claims.


                                          7
               a. Proceedings Below
       On August 6, 1999, the court held an in-chambers meeting with the
prosecutor and prospective Defense Counsel Donna Tarter. The prosecutor
observed that defendant had already killed two people and that he had reason to
believe defendant would kill again. Voicing concerns for Tarter‟s safety, the
prosecutor suggested that two correctional officers be present at all attorney-client
meetings and that they be bound by the attorney-client privilege as to anything
they might overhear. Tartar agreed, and the court made the order to the two
correctional officers present. Thereafter, Tartar met privately with defendant and
was appointed by the court to represent him. Initially, there was no discussion of
the court‟s order in open court in defendant‟s presence.
       On December 22, 1999, while defendant was present in open court, the
prosecutor explained the security arrangements: “any communications that are
overheard between Ms. Tarter and Mr. Delgado during any of the court
proceeding[s] or when she is visiting him are to be encompassed within the
attorney-client privilege. Given the nature of this case, we‟ve personally given
that privilege to officers Masters and [Klose] so that they may be present during
all communications just for the safety of all parties.” Defense counsel stated her
agreement, and the trial court expressly admonished the officers “that you‟re each
ordered not to disclose any information you might overhear in any of those
conversations to anyone, including family members, coworkers, anyone.” Both
officers affirmed their understanding. Defendant voiced no objection.
       During trial, three correctional officers were stationed near defendant, one
on either side and one directly behind. The record is not entirely clear if defendant
and defense counsel sat next to each other or if a correctional officer sat between
them. Defendant‟s hands were unrestrained so that he could write notes to
counsel. Defense counsel expressly agreed to these security arrangements.


                                          8
       From the time he was first arraigned, defendant appeared personally in
court approximately 23 times during pretrial and trial proceedings. He never
complained to the court about the presence of officers at confidential attorney-
client meetings. On April 14 and May 2, 2000, before trial began, the court
inquired of defendant personally if there was any reason the trial could not go
forward. He stated there was none. Defense counsel likewise answered ready for
trial. Periodically thereafter, the court inquired of defense counsel if she had any
objections or concerns. She, too, voiced no concern about the presence of officers
at attorney-client meetings or in the courtroom.
       Here, defendant advances both statutory and constitutional challenges to the
court‟s order.

                 b. Attorney-Client Privilege and the Need for the Ordered Security
                     Measures
       Citing Evidence Code section 952, defendant argues that the correctional
officers‟ presence destroyed the confidentiality of his attorney-client
communications because it was not reasonably necessary to further the purpose of
the legal consultation. (See Evid. Code, § 952;9 Zurich American Ins. Co. v.
Superior Court (2007) 155 Cal.App.4th 1485, 1503 (Zurich).) He reasons that
there was no showing of a security risk to defense counsel, and that other
measures, such as physical restraints, would have been adequate. He contends that

9       Evidence Code section 952 defines “ „confidential communication between
client and lawyer‟ ” as “information transmitted between a client and his or her
lawyer in the course of that relationship and in confidence by a means which, so
far as the client is aware, discloses the information to no third persons other than
those who are present to further the interest of the client in the consultation or
those to whom disclosure is reasonably necessary for the transmission of the
information or the accomplishment of the purpose for which the lawyer is
consulted, and includes a legal opinion formed and the advice given by the lawyer
in the course of that relationship.”



                                          9
the parties were not authorized to extend the attorney-client privilege by
stipulation, and that the trial court acted in excess of its jurisdiction in accepting
the stipulation.
       These claims have been forfeited. Defense counsel expressly agreed to the
officers‟ presence at attorney-client meetings to ensure her safety, and both parties
stipulated that the officers would be bound by the privilege. In the trial court,
neither party challenged the necessity for the measures or the legality of the
stipulation. Under these circumstances, defendant may not be heard to argue for
the first time on appeal that the arrangement was unnecessary and that the
privilege was destroyed. (Dowling v. Farmers Ins. Exchange (2012) 208
Cal.App.4th 685, 696-697; see generally Ward v. Taggart (1959) 51 Cal.2d 736,
742.) Nor may he argue that the trial court abused its discretion in failing to
devise a different solution. (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 389 (Bryant); People v. Montes (2014) 58 Cal.4th 809, 843; People v.
Duran (1976) 16 Cal.3d 282, 289). Similarly, defendant‟s jurisdiction argument is
undermined by the absence of a challenge below. (See People v. Mower (2002) 28
Cal.4th 457, 474, fn. 6 [acts in excess of jurisdiction are subject to waiver and
forfeiture].)
       Defendant argues that he should not be bound by his counsel‟s stipulation,
which occurred before she was formally appointed. The timing here was
immaterial. The stipulation was made to facilitate counsel‟s appointment.
Counsel was appointed shortly thereafter, whereupon the stipulation became
effective for all subsequent attorney-client meetings. There was one brief
consultation in the interim. However, even if that meeting was outside the
stipulation for purposes of our forfeiture analysis, defendant fails to identify
anything of consequence that occurred to support his claims of error.



                                           10
       In addition, nothing prevented counsel from revisiting the terms of the
stipulation after speaking with defendant.10 Defendant counters the record does
not reveal whether or not counsel told him about the arrangement extending the
attorney-client privilege to the attending officers. We will not presume counsel‟s
omission. It is defendant‟s burden to show that counsel performed deficiently, by
developing the record on habeas corpus if necessary. (People v. Pope (1979) 23
Cal.3d 412, 425 (Pope), overruled on another ground in People v. Berryman
(1993) 6 Cal.4th 1048, 1081, fn. 10; see generally People v. Fosselman (1983) 33
Cal.3d 572, 581-582.)
       Defendant further argues that counsel could not be counted on to object on
his behalf to an order made solely for counsel‟s benefit and contrary to his rights
and interests. His only authority involves a failure to object to an award of
attorney‟s fees, a circumstance that is readily distinguishable. (Cf. People v. Viray
(2005) 134 Cal.App.4th 1186, 1214.) Security risks occur with some frequency,
and do not invariably create a conflict of interest for counsel. Defendant points to
no evidence in the record that counsel labored under an actual conflict that
adversely affected her performance. (Cuyler v. Sullivan (1980) 446 U.S. 335,
348.) On the contrary, counsel agreed to the arrangement only after receiving
express assurances from the prosecution that it would not compromise the
attorney-client privilege. Nor does defendant demonstrate that the potential risk to
counsel‟s safety caused her to perform deficiently. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688.)



10     We address separately, post, defendant‟s claim that he was deprived of his
statutory and constitutional rights to be present during the hearing where the court
ordered the correctional officers to provide security for defense counsel.



                                         11
       Further, it is not accurate to say the arrangement was made solely for
counsel‟s benefit. Defendant was entitled to counsel. His own statements and
admitted conduct made securing willing and capable counsel uniquely difficult.
The court‟s action was taken to ensure that defendant‟s right to counsel was
honored.
       Even were we to overlook defendant‟s forfeiture and reach the merits, there
is no basis for relief. Evidence Code section 954 affords the client “a privilege to
refuse to disclose, and to prevent another from disclosing, a confidential
communication between the client and lawyer.” (Zurich, supra, 155 Cal.App.4th
at p. 1494.) Absent actual disclosure, or a demand for disclosure, the statute is
simply not implicated. (People v. Alexander (2010) 49 Cal.4th 846, 887
(Alexander).) In Alexander, we rejected the defendant‟s claim that a police
detective‟s interception and recording of a three-way call between the defendant,
his mother, and a defense investigator violated the statutory attorney-client
privilege. We reasoned: “Defendant has made no showing that any witness
disclosed any information from the call during the proceedings in violation of
Evidence Code section 954. Indeed, substantial evidence supports the trial court‟s
findings that the call‟s contents were not disclosed to the prosecutors.” (Id. at p.
887, fn. omitted.) Likewise here, the prosecutor did not seek to discover or offer
evidence of confidential communications. Additionally, there is no evidence that
the officers ignored the admonition by disclosing confidential communications to
anyone. In short, nothing before us indicates the officers‟ presence violated
defendant‟s rights.
       We likewise reject defendant‟s challenge to the necessity of the security
arrangements, and the availability of less intrusive alternatives. “In general, the
„court has broad power to maintain courtroom security and orderly proceedings‟
[citation], and its decisions on these matters are reviewed for abuse of discretion.”

                                          12
(People v. Lomax (2010) 49 Cal.4th 530, 558 (Lomax).) Given that defendant had
killed two people with his bare hands and had vowed to kill again, the trial court
did not abuse its discretion by adopting the parties‟ proposed solution to a clear
security problem.
       We emphasize, however, that we do not suggest such measures are
necessary or appropriate in every circumstance. Ordering law enforcement
officers to be present at attorney-client meetings is an unorthodox solution with
obvious potential pitfalls. We hold only that, under these extreme circumstances,
the court did not abuse its discretion. Trial courts are well advised to fashion
security measures tailored to minimize the risk of intrusion on the defendant‟s
constitutional rights. With these observations in mind, we turn to defendant‟s
Sixth Amendment claim.

               c. Deprivation of the Right to Counsel
       Defendant argues that the right to confidential communications is “absolute
and essential to both the federal and state right to representation by counsel.”
(Citing In re Rider (1920) 50 Cal.App. 797, 799.) According to defendant, the
officers involved here were members of the prosecution team, and their presence
during attorney-client consultations destroyed confidentiality despite the parties‟
stipulation to the contrary. Defendant claims that the officers‟ presence had a
chilling effect on his communications with counsel and his defense preparation,
resulting in a “wholesale evisceration” of his right to counsel under both the Sixth
Amendment and article I, section 15 of the California Constitution. These
circumstances, he argues, were “tantamount to a failure to appoint counsel at all,”
and amounted to structural error. The appellate record fails to support defendant‟s
claims of error.




                                         13
       As explained in Alexander, supra, 49 Cal.4th 846, the federal Constitution
does not protect confidential communications between a defendant and his
attorney for their own sake. “No federal constitutional provision . . . establishes an
attorney-client communication privilege. Rather, the Sixth Amendment
guarantees a criminal defendant the right to „assistance of counsel for his defense.‟
(U.S. Const., 6th Amend.) Confidential communication between a defendant and
his lawyer is itself not a separate „right‟ that the federal Constitution guarantees,
but rather an aspect of ensuring fulfillment of the right to assistance of counsel.”
(Alexander, supra, 49 Cal.4th at pp. 887-888.)
       Alexander held that interception of attorney-client communications does
not constitute a complete denial of the right to counsel. (Alexander, supra, 49
Cal.4th at p. 888.) Citing Weatherford v. Bursey (1977) 429 U.S. 545
(Weatherford), we explained that the Supreme Court had “rejected a per se rule
that „ “whenever the prosecution knowingly arranges or permits intrusion into the
attorney-client relationship the right to counsel is sufficiently endangered to
require reversal and a new trial.” ‟ ” (Alexander, at p. 888, quoting Weatherford,
at p. 549.) The high court made clear that “unless the record supports „at least a
realistic possibility of injury to [the defendant] or benefit to the State, there can be
no Sixth Amendment violation.‟ ” (Alexander, at p. 888, quoting Weatherford, at
p. 558.)
       Accordingly, we look to Weatherford, supra, 429 U.S. 545, to evaluate
defendant‟s Sixth Amendment claim. Weatherford was an undercover agent for a
state law enforcement agency. He vandalized a local office of the Selective
Service with Bursey and two others. To maintain his undercover status,
Weatherford was arrested and charged along with Bursey. Before trial,
Weatherford was invited to two meetings where Bursey and his attorney discussed
defense tactics. Weatherford did not share the details of these meetings with

                                           14
anyone. However, he did testify at Bursey‟s trial regarding his own undercover
activities and Bursey‟s act of vandalism. After Bursey was convicted, he filed a
civil rights action against Weatherford and his supervisor under 42 United States
Code section 1983, alleging that he had been deprived of his Sixth Amendment
right to the assistance of counsel. (Weatherford, at pp. 547-549.)
        In evaluating the Sixth Amendment claim, the high court rejected the
notion that a constitutional violation can be made out “whenever conversations
with counsel are overheard” by a government agent. (Weatherford, supra, 429
U.S. at p. 551.) Rather, the court held that “the constitutionality of the conviction
depends on whether the overheard conversations have produced, directly or
indirectly, any of the evidence offered at trial.” (Id. at p. 552.) The court
identified several relevant factors, including whether: (1) a witness testifies at trial
about the confidential conversations; (2) any of the state‟s evidence originated in
these conversations; (3) the conversations were communicated to the prosecutor;
or (4) the conversations were used in any other way to the defendant‟s substantial
detriment. (Id. at p. 554.) The court noted that “[n]one of these elements is
present here . . . . Weatherford‟s testimony for the prosecution about the events of
March and April 1970 revealed nothing said or done at the meetings . . . that he
attended. None of the State‟s evidence was obtained as a consequence of
Weatherford‟s participation in those meetings.” (Id. at p. 555, fn. omitted.)
Further, the district court expressly found that Weatherford had not communicated
anything about the meeting to either his superiors or the prosecution. (Id. at p.
556.)
        Applying the Weatherford factors to defendant‟s claim, he fails to establish
a constitutional violation. The officers who provided security were expressly




                                          15
admonished not to reveal the content of any overheard conversations to anyone.11
Again, there is no evidence they disregarded the court‟s admonishment by
disclosing confidential communications. Nor did the officers testify regarding any
attorney-client conversation. Finally, defendant fails to identify any evidence
allegedly developed as a result of the correctional officers‟ presence. It is
defendant‟s obligation to make such a record. (People v. Ervine (2009) 47 Cal.4th
745, 770 (Ervine).)12
       Citing Ervine, supra, 47 Cal.4th 745, defendant argues that a Sixth
Amendment violation can be predicated on a showing that confidential attorney-
client information was intercepted by any member of the prosecution team. He
argues that the officers who provided security at attorney-client meetings and in
court were part of the prosecution team because the California Department of
Corrections and Rehabilitation (CDCR) investigated the charged crimes and


11     During pretrial proceedings, the trial court admonished Officers Martinez
and Kaszap regarding the attorney-client privilege. On December 22, 1999, the
court admonished two additional officers, Masters and Klose. A third officer,
Sergeant Eric Griem, was in charge of courtroom security during trial. Although
defendant complains that Griem was not separately admonished, the record
indicates that the supervising officers were aware of the stipulation. The same
three officers were used for courtroom security throughout the trial.
12     In Alexander we observed that no decision of the high court “has answered
the questions left unresolved in Weatherford—what showing of injury to the
defendant or benefit to the state is, in the affirmative, required to prove a Sixth
Amendment violation, and who bears the burden of persuasion.” (Alexander,
supra, 49 Cal.4th at p. 889, fn. 23; see also Ervine, supra, 47 Cal.4th at p. 766.)
We need not opine on that question here. Because defendant did not object below
or request a hearing on the effect of the asserted interference, the People had no
opportunity to litigate that point. Under these circumstances, we apply the general
rule that defendant, the party challenging the judgment, has the burden of
providing an adequate appellate record. (Ballard v. Uribe (1986) 41 Cal.3d 564,
574-575; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th
1412, 1416.)



                                          16
conducted the cell extractions introduced as circumstances in aggravation.
Relying on cases that interpret the scope of the prosecution team for purposes of
statutory discovery and the disclosures mandated by Brady v. Maryland (1963)
373 U.S. 83 (Brady), defendant argues that “[b]ecause in this case all attorney-
client conferences were conducted in the close proximity of [CDCR] employees,
there can be no dispute that confidential information was actually communicated
to the prosecution team.” (Citing In re Steele (2004) 32 Cal.4th 682, 696-697;
People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1317 [concluding
that CDCR has a “hybrid status” when it both provides administrative and security
functions in housing felons and investigates crimes committed in the prison].)
       First, we note that defendant‟s bald assertion that confidential
communications were actually revealed is purely speculative. Further, defendant
reads too much into Ervine. There, Sacramento County jail personnel entered the
defendant‟s cell while he was in court and read his confidential defense
documents. None of that information was communicated to the chief assistant
Attorney General who prosecuted the case, or to the Lassen County District
Attorney. (Ervine, supra, 47 Cal.4th at p. 763.) Applying Weatherford, supra,
429 U.S. 545, we concluded the lack of evidence that the sheriff‟s department
“communicated any confidential information to anyone” defeated defendant‟s
Sixth Amendment claim. (Ervine, at p. 765.) To support this conclusion, we drew
an analogy to the scope of liability under Brady (see Ervine, at p. 768), and
observed that “[t]he agency responsible for intruding on defendant‟s relationship
with his attorney (the Sacramento County Sheriff‟s Department) was completely
unrelated to the agency actually prosecuting defendant (the Lassen County District
Attorney‟s Office)” (id. at p. 767). Nonetheless, because the relationship between
the agencies in Ervine was tangential, we were not called upon to consider what
degree of association would be sufficient to establish a Sixth Amendment violation

                                         17
based on receipt of confidential attorney-client information by a government actor
other than the prosecutor.
        Weatherford, however, did consider that question, and rejected an argument
similar to the one defendant advances here. Unlike the officers in this case,
Weatherford was involved in the investigation and called as a prosecution witness.
Bursey argued that Weatherford was therefore “a member of the prosecuting team
whose knowledge of Bursey‟s trial plans was alone enough to violate Bursey‟s
constitutional right to counsel and to vitiate Bursey‟s conviction. [Citation.]”
(Weatherford, supra, 429 U.S. at p. 556.) The court disagreed: “Though
imaginative, this reasoning is not a realistic assessment of the relationship of
Weatherford to the prosecuting staff or of the potential for detriment to Bursey or
benefit to the State that Weatherford‟s uncommunicated knowledge might pose.”
(Ibid.) Rather, the court looked to whether the receipt of confidential information
by persons other than the prosecutor resulted in testimony or other evidence
against the defendant. (Id. at p. 554.) As noted, defendant made no such showing
here.
        Defendant asserts, “[b]ecause in this case all attorney-client conferences
were conducted in the close proximity of [CDCR] employees,” this fact
“establishes a very real possibility” of injury to defendant‟s case. People v. Rich
(1988) 45 Cal.3d 1036, rejected the defendant‟s claim that the presence of an
officer during psychiatric interviews violated his right to counsel, observing that
the officer “was instructed not to repeat anything he heard during the interview”
and that the officer assured defense counsel that he would not do so. (Id. at p.
1099, fn. 16.) These officers were similarly instructed, and, as noted, defendant
points to nothing in the record to show they violated the court‟s directive.
        Defendant contends that the officers‟ presence had a “chilling effect” on his
communications with counsel and undermined his ability to assist in his defense.

                                          18
He reasons that “nothing is more likely to impair the effectiveness of an attorney
than the inability to communicate freely and privately with his client” and that “an
attorney who will not consult in private with her client cannot be said to satisfy the
requirements of the Sixth Amendment or the California Constitution.” Ervine
rejected a similar claim that, as an “ „inevitable consequence‟ ” of law
enforcement having reviewed his confidential legal materials, the defendant had
an “ „enduring fear‟ ” concerning his private communications with counsel, which
deprived him of counsel‟s effective assistance. (Ervine, supra, 47 Cal.4th at p.
769.) We held that “a defendant‟s inability to consult with counsel or to assist in
his defense must appear in the record.” (Ibid.) The defendant had “fail[ed] to
identify any instance in which his relationship with counsel was impaired” despite
having been offered the opportunity to submit additional evidence at the time the
trial court denied his motion to dismiss. (Ibid.) “Because his claim still is not
supported by any reference to the record, we must reject it.” (Ibid.)
       So too here. Defendant observes that after he first met with defense
counsel on August 6, 1999 in the presence of correctional officers, he told the
court that he had “nothing to discuss” with counsel and that he had “no intentions
to discuss anything with her.” He invites us to infer from these comments that he
was reluctant to speak in the presence of officers. The remark is taken out of
context. Immediately before defendant‟s statements, the court and counsel had
been discussing dates for the preliminary hearing. Asked if he was willing to
waive time, defendant responded that he wanted a preliminary hearing within 10
days so that it would be “done and over with.” The court noted that 10 days would
not give defense counsel time to prepare, and asked defendant, “You don‟t want
[defense counsel] to have any time?” It was at this point that defendant responded
he had nothing to discuss with counsel. Taken in totality, defendant‟s comments



                                         19
reveal an expression of his indifference to the criminal process, rather than his
reluctance to discuss his case in the presence of correctional officers.
       In any event, any asserted reluctance to assist counsel was short-lived. On
November 20, 1999, after the preliminary hearing, defendant was arraigned.
Asked if he would like to have counsel appointed, defendant responded
affirmatively. He voiced no objection when the court appointed Ms. Tarter to
continue her representation. He also agreed to waive time to accommodate
defense counsel‟s requested trial dates. On December 16, 1999, defense counsel
stated on the record that she had been “talking [with Mr. Delgado] for about a half
an hour or so” and that she was requesting additional time to investigate the case.
On March 30, 2000, counsel conveyed defendant‟s request that he be allowed to
view the videotape evidence. Counsel indicated that she would be consulting with
defendant at the prison and that the prison litigation staff had been “very
cooperative.”
       Defendant also asserts that, during court proceedings, “he could not
whisper to his attorney, nor pass her confidential notes, without also revealing his
communications to the correctional officers who were „circling around‟ him,
between [defendant] and attorney Tarter.” The record before us is not entirely
clear as to the officers‟ positions in court. (See ante, at p. 8.) Significantly, there
is no direct evidence that the officers‟ presence impeded defendant‟s ability to
whisper to counsel or pass her notes. On the contrary, the officer in charge of
courtroom security confirmed that defendant‟s hands would be unrestrained and he
would be given a pen so that he could communicate with his attorney in writing.
This circumstance does not resemble People v. Zammora (1944) 66 Cal.App.2d
166, wherein reversible error was found because the 22 defendants were seated at
some distance from counsel‟s table and were not allowed to approach or consult



                                           20
with counsel either during sessions or as they left the courtroom. (Id. at pp. 226-
236.)
        The fact that neither defense counsel nor defendant voiced any concern
about the officers‟ presence further undercuts his claim of a chilling effect.
Although defense counsel initially agreed to the arrangement, she was certainly
free to revisit the issue if it proved unworkable. She did not thereafter object or
otherwise alert the court that the arrangement negatively affected her ability to
communicate with defendant. Likewise, at no time did defendant raise a concern
with the court about the presence of the officers. Defendant counters that no
inference may be drawn from his silence because the record does not show that
counsel even told him about the arrangement. His argument is unpersuasive.
First, there is no evidence that counsel failed to so advise defendant that the
officers were bound by the privilege. It is defendant‟s burden to show that counsel
performed deficiently. (Pope, supra, 23 Cal.3d at p. 425.) Second, and
significantly, defendant was present in court on December 22, 1999 when the
court admonished the officers that they were bound by the privilege and expressly
ordered them not to disclose any overheard communications. Thereafter, on April
14 and again on May 2, 2000, the trial court asked defendant whether there was
any reason the trial could not proceed. Defendant responded that there was not.
Defendant‟s claimed inability to consult with counsel or assist in his defense is
unsupported by any evidence in the record. (Ervine, supra, 47 Cal.4th at p. 769.)
Accordingly, his Sixth Amendment claim fails. (Alexander, supra, 49 Cal.4th at
p. 889.)
        Defendant fares no better with his claim that his right to counsel under
article I, section 15 of the California Constitution was violated. Defendant cites
Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber), which held that the
right to counsel “embodies the right to private consultation with counsel” and “is

                                          21
violated when a state agent is present at confidential attorney-client conferences.”
(Id. at p. 752.) Barber is distinguishable. In that case, an undercover police
officer posed as a codefendant and attended attorney-client meetings. (Id. at pp.
745, 748-749.) During that time, he communicated regularly with his superior
officers and disclosed that “the defense was to become more „political.‟ ” (Id. at p.
749.) When petitioners learned of the breach in attorney-client confidences, they
moved to dismiss the charges. (Id. at p. 745, 749-750.) Petitioners‟ attorney
testified that his clients became “ „paranoi[d]‟ ” after learning that they had been
infiltrated by an informant. (Id. at p. 750.) The clients, who had once actively
participated in meetings with counsel, became reluctant to speak. They were
distrustful of each other and of defense counsel‟s assistant. The attorney opined
that his clients‟ ability to assist in preparing a defense had been “ „substantially
impaired.‟ ” (Ibid.) On that record, we held that the clients were deprived of their
state constitutional right to communicate privately with counsel, and that the
appropriate remedy was dismissal. (Id. at p. 756, 760.)
       Defendant argues that the interference here was even more pervasive than
in Barber. Not so. In Barber, some of the content of attorney-client conversations
was actually relayed to other officers, and there was a demonstrated chilling effect
on attorney-client communications. (Barber, supra, 24 Cal.3d at p. 756.) Neither
of those circumstances is present here. The court in Alexander, on a record similar
to this case, questioned whether the defendant‟s state constitutional right to
counsel was violated “notwithstanding broad language used in the much more
egregious circumstances of Barber.” (Alexander, supra, 49 Cal.4th at p. 895;
accord, Ervine, supra, 47 Cal.4th at p. 770 [distinguishing Barber].) Barber‟s
holding that a violation of the right to counsel is shown “when a state agent is
present at confidential attorney-client conferences” (Barber, at p. 752), must be
understood in light of its facts, which differ markedly from those here.

                                          22
       Additionally, it is significant that “Barber involved an application for a
pretrial writ of prohibition, while the present case is an appeal from a judgment of
conviction and sentence.” (Alexander, supra, 49 Cal.4th at p. 896.) As such, this
case is subject to article VI, section 13 of the California Constitution, which
provides that “[n]o judgment shall be set aside . . . for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.” Defendant argues that the denial of confidential
communications rendered counsel‟s appointment “a mere formality without any
substance,” and therefore amounted to a miscarriage of justice regardless of the
evidence at trial. A similar claim failed in Alexander, where we observed that the
defendant “had counsel, and his attorney vigorously pursued his interests
throughout the trial.” (Alexander, at p. 896.) Likewise here, defense counsel
actively participated in all aspects of the trial, including jury selection, challenging
evidence admissibility, cross-examining witnesses, proposing jury instructions,
presenting defense witnesses at the penalty phase, and arguing vigorously against
a sentence of death. Because “ „defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other [constitutional]
errors that may have occurred are subject to harmless-error analysis.‟ ” (Neder v.
United States (1999) 527 U.S. 1, 8, quoting Rose v. Clark (1986) 478 U.S. 570,
579; accord, Alexander, supra, 49 Cal.4th at pp. 896-897.)
       For the same reasons that defendant has failed to prove his other
constitutional claims, he has also failed to demonstrate a reasonable probability
that, absent any alleged violation, the trial‟s outcome would have been more
favorable. “No evidence establishes the prosecution gained anything from [the
officers‟ presence] or that the defense was affected negatively in a way that could
have changed the trial‟s outcome.” (Alexander, supra, 49 Cal.4th at p. 899.)

                                          23
Additionally, the evidence against defendant was compelling and included his own
statements and videotaped reenactments of the murders.13

               d. Denial of the Right to Be Present
       Defendant claims that his absence from the August 6 proceeding at which
the court ordered that officers be present at attorney-client meetings violated his
constitutional right to due process and his statutory rights (§§ 977, 1043). He
claims that his presence bore a reasonable and substantial relation to his
opportunity to fully defend against the charges and would have contributed to the
fairness of the proceeding. According to defendant, had he been present, he could
have objected to his counsel‟s “stipulat[ing] away” the right to private and
confidential consultation. He could have opposed the order on the grounds that it
was unnecessary and that it involved officers who were coworkers of several
witnesses and one of the victims in the case. Had he been present, he would have
had an opportunity to reject Tarter‟s appointment and proceed pro se.
Alternatively, had he accepted counsel‟s appointment, he would have been on
notice that the court had extended the attorney-client privilege to the officers, thus
ameliorating the chilling effect of their presence.


13      Defendant also summarily asserts that “[t]he elimination of confidential
communications with counsel violated [his] right to due process under the state
and federal constitutions . . . .” He provides no substantive analysis to support this
claim. In any event, for the same reasons we set out above, we conclude the
presence of officers during attorney-client meetings did not render his trial
fundamentally unfair. As in Alexander, supra, 49 Cal.4th 846, “there has been no
showing that (1) the purpose of [the officer‟s presence] was to discover defense
strategy, (2) information . . . was communicated to the prosecutors, or (3) law
enforcement agents utilized, or even could have utilized, information conveyed
[during the meetings].” (Id. at pp. 891-892.) Additionally, there has been no
showing that the officers‟ presence interfered with attorney-client communications
or trial preparation.



                                          24
       “ „ “Due process guarantees the right to be present at any „stage that is
critical to [the] outcome‟ and where the defendant‟s „presence would contribute to
the fairness of the procedure.‟ ” [Citation.] “ „The state constitutional right to be
present at trial is generally coextensive with the federal due process right.
[Citations.]‟ [Citation.] Neither the state nor the federal Constitution, nor the
statutory requirements of sections 977 and 1043, require the defendant‟s personal
appearance at proceedings where his presence bears no reasonable, substantial
relation to his opportunity to defend the charges against him. [Citations.]”
[Citation.] “Defendant has the burden of demonstrating that his absence
prejudiced his case or denied him a fair trial.” ‟ ” (People v. Gonzales (2012) 54
Cal.4th 1234, 1254 (Gonzales).)
       We need not decide whether our state statutes or principles of due process
entitled defendant to be present during the in-chambers conference on August 6,
1999. Any error in excluding him was harmless. (See People v. Thompson (2016)
1 Cal.5th 1043, 1098-1099.) Defendant had ample opportunity to raise these
issues in subsequent proceedings during which he was present. He was obviously
aware of the officers‟ presence from the very first meeting with counsel. At
arraignment, he voiced no concern about the officers‟ presence; nor did he object
to counsel‟s appointment or ask to proceed pro se. Subsequently, defendant was
present when the judge admonished officers in open court that they were bound by
the attorney-client privilege. Again defendant raised no concerns about a chilling
effect on his communications with counsel; nor did he request to proceed pro se.
As noted, before trial the court twice asked defendant personally if there was any
reason that trial could not begin. He voiced none. Defendant had ample and
multiple opportunities to explore these security issues. His exclusion from the




                                          25
initial in camera hearing was not prejudicial. (Cf. People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1041.)14
       Defendant further contends that he was denied his Sixth Amendment right
“ „ “to be personally present at any proceeding in which his appearance is
necessary to prevent „interference with [his] opportunity for effective cross-
examination.‟ ” ‟ ” (Gonzales, supra, 54 Cal.4th at pp. 1253-1254.) He reasons
that “while [he] was physically present during trial, he was unable to assist counsel
with cross-examination without disclosing his comments to correctional officers at
the same time, and thus, it was no different than if he had been tried in absentia.”
This remarkable claim is without merit. Defendant was present during all trial
proceedings where evidence was taken. The record discloses that defendant‟s
hands were unrestrained and he was able to write notes to defense counsel.
Additionally, there is no evidence other than defendant‟s bare assertion that he
was unable to speak to defense counsel during trial due to the presence of
correctional officers. At no time did defendant advise the court of his asserted
concern. The record reveals no interference with defendant‟s opportunity to assist
counsel in conducting effective cross-examination.



14      Defendant urges us to revisit our precedent holding that “[e]rroneous
exclusion of the defendant is not structural error that is reversible per se, but trial
error that is reversible only if the defendant proves prejudice.” (People v. Perry
(2006) 38 Cal.4th 302, 312; accord, People v. Bradford (1997) 15 Cal.4th 1229,
1357.) He argues that the exclusion here cannot be assessed for harmlessness
because the error occurred before the presentation of evidence and was unrelated
to the strength of the evidence. This distinction is inapposite. There are many
reasons an error can be deemed harmless. As explained, the alleged error in
excluding defendant from the in camera proceeding was harmless because he had
other opportunities to raise this subject with the court, which could then have
directly considered his objection and taken any necessary action.



                                           26
             2. Multiple Convictions for First Degree Murder and Aggravated
                Assault by a Life Prisoner (§ 4500)
       Defendant contends that his convictions for first degree murder must be
reversed because they are necessarily included in the offense of aggravated assault
by a life prisoner, of which he was also convicted. He is incorrect.
       “While section 654 prohibits multiple punishment, it is generally
permissible to convict a defendant of multiple charges arising from a single act or
course of conduct. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.)
However, a „judicially created exception to this rule prohibits multiple convictions
based on necessarily included offenses. [Citations.]‟ (People v. Montoya (2004)
33 Cal.4th 1031, 1034.)” (People v. Sanders (2012) 55 Cal.4th 731, 736.)
       “In deciding whether multiple conviction is proper, a court should consider
only the statutory elements.” (People v. Reed (2006) 38 Cal.4th 1224, 1229.)
“Under the elements test, if the statutory elements of the greater offense include all
of the statutory elements of the lesser offense, the latter is necessarily included in
the former.” (Id. at p. 1227.) In other words, “ „[i]f a crime cannot be committed
without also necessarily committing a lesser offense, the latter is a lesser included
offense within the former.‟ ” (Ibid., quoting People v. Lopez (1998) 19 Cal.4th
282, 288.)
        Section 4500 provides: “Every person while undergoing a life sentence,
who is sentenced to state prison within this state, and who, with malice
aforethought, commits an assault upon the person of another with a deadly weapon
or instrument, or by any means of force likely to produce great bodily injury is
punishable with death or life imprisonment without possibility of parole. The
penalty shall be determined pursuant to the provisions of Sections 190.3 and
190.4; however, in cases in which the person subjected to such assault does not
die within a year and a day after such assault as a proximate result thereof, the



                                          27
punishment shall be imprisonment in the state prison for life without the
possibility of parole for nine years.”
       Defendant reasons that section 4500 contains all of the elements of murder:
(1) an assault upon another person with a deadly weapon or instrument, or by
means of force likely to produce great bodily injury; (2) with malice aforethought;
(3) that causes the death of the victim within a year and a day; plus the additional
element (4) that the assault be committed by a prisoner in state prison while
undergoing a sentence of life imprisonment.
       “ „The words malice aforethought in section 4500 have the same meaning
as in sections 187 [murder] and 188 [malice definition].‟ ” (People v. St. Martin
(1970) 1 Cal.3d 524, 537, quoting People v. Chacon (1968) 69 Cal.2d 765, 781.)
“Malice may be either express or implied. It is express when the defendant
manifests „a deliberate intention unlawfully to take away the life of a fellow
creature.‟ (§ 188.) It is implied . . . „when the killing results from an intentional
act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers the life
of another and who acts with conscious disregard for life‟ [citation].” (People v.
Lasko (2000) 23 Cal.4th 101, 107.) In other words, express malice requires an
intent to kill. Implied malice does not.
       Defendant‟s argument overlooks the fact that he was convicted of first
degree murder. Section 189 defines first degree murder as an unlawful killing
with malice aforethought that is willful, premeditated and deliberate. (§ 189;
People v. Chiu (2014) 59 Cal.4th 155, 166; see also id. at p. 163 [premeditation
and deliberation are elements of first degree murder, not a separate penalty
provision].) “Willful” means intentional; “premeditated” means thought over in
advance; “deliberate” means careful weighing of considerations in forming a
course of action. (See CALCRIM No. 521; People v. Koontz (2002) 27 Cal.4th

                                           28
1041, 1080.) One who violates section 4500 does not necessarily harbor an
express intent to kill, nor does he necessarily act with premeditation and
deliberation, all of which are required for this type of first degree murder.
       First degree murder also includes an unlawful killing with malice
aforethought that is perpetrated by certain specified means (such as a destructive
device, poison, lying in wait, torture, etc.), and an unlawful killing during the
commission or attempted commission of certain listed felonies. (§ 189; People v.
Chun (2009) 45 Cal.4th 1172, 1182; People v. Dillon (1983) 34 Cal.3d 441, 465-
472, 475-477.) One who violates section 4500 does not necessarily do so by any
of the means specified in section 189. Nor does a violation of section 4500
predicated on felony assault come within the list of qualifying felonies for first
degree felony murder. These alternative theories of first degree murder are not
implicated by the facts here, nor were they relied upon by the prosecution at trial.
We mention them, however, because the elements test turns not on the specific
facts of a case but on the elements set out in the statute.
       Because it is possible to violate section 4500 without committing murder in
the first degree, the latter offense is not included in the former. Accordingly,
defendant was properly convicted of both offenses in the killings of Mendoza and
Mahoney.

           3. Claims of Instructional Error
       The trial court instructed the jury with CALJIC Nos. 2.01 (sufficiency of
circumstantial evidence), 2.21.2 (willfully false testimony), 2.22 (weighing
conflicting testimony), 2.27 (sufficiency of testimony of a single witness), 2.51
(motive) and 8.20 (willful, deliberate, and premeditated murder) at the guilt phase.
It repeated all of these instructions except CALJIC No. 8.20 at the penalty phase.
Defendant claims these standard instructions undermined the prosecution‟s burden



                                          29
of proof beyond a reasonable doubt.15 He acknowledges that we previously have
rejected these claims (see, e.g., People v. Casares (2016) 62 Cal.4th 808, 831-832
(Casares)), but urges us to reconsider. He offers no persuasive reason to do so.16
       “CALJIC No. 2.01 does not alter the burden of proof, nor does it create a
mandatory presumption of guilt.” (People v. Bonilla (2007) 41 Cal.4th 313, 338,
and cases cited.) The instruction “properly direct[s] the jury to accept an
interpretation of the evidence favorable to the prosecution and unfavorable to the
defense only if no other „reasonable‟ interpretation can be drawn. Particularly
when viewed in conjunction with other instructions correctly stating the
prosecution‟s burden to prove defendant‟s guilt beyond a reasonable doubt, [this]
circumstantial evidence instruction[] do[es] not reduce or weaken the
prosecution‟s constitutionally mandated burden of proof or amount to an improper
mandatory presumption of guilt.” (People v. Kipp (1998) 18 Cal.4th 349, 375.)
       Defendant counters that “[a]n instruction that dilutes the beyond-a-
reasonable-doubt standard of proof on a specific point is not cured by a correct
general instruction on proof beyond a reasonable doubt.” He overlooks the fact
that CALJIC No. 2.01, as given, specifically referred to the reasonable doubt
standard, stating that “each fact which is essential to complete a set of
circumstances necessary to establish the defendant‟s guilt must be proved beyond
a reasonable doubt.” It also provided: “if the circumstantial evidence as to any
particular count permits two reasonable interpretations, one of which points to the


15     Although defendant failed to object to these instructions in the trial court,
he may challenge them on the ground that they affected his substantial rights.
(§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)
16     Defendant argues that the penalty phase instructions were defective for the
same reasons that the guilt phase instructions were defective. Our resolution of his
claims applies equally to both phases of the trial.



                                          30
defendant‟s guilt and the other to his innocence, you must adopt that interpretation
that points to the defendant‟s innocence, and reject that interpretation that points to
his guilt.” There is no reasonable likelihood that the jury understood this
instruction to dilute the burden of proof or create a mandatory presumption of
guilt. (See People v. Smithey (1999) 20 Cal.4th 936, 963.)
       CALJIC No. 2.21.2 does not reduce the prosecution‟s burden of proof.
(People v. Beardslee (1991) 53 Cal.3d 68, 95.) As given, it informed the jury that
“[y]ou may reject the whole testimony of a witness who willfully has testified
falsely as to a material point, unless, from all the evidence, you believe the
probability of truth favors his or her testimony in other particulars.” Defendant
argues that the instruction “lightened the prosecution‟s burden of proof by
allowing the jury to credit prosecution witnesses if their testimony had a „mere
probability of truth.‟ ” However, the instruction “says no such thing.” (People v.
Nakahara (2003) 30 Cal.4th 705, 714 (Nakahara).) It “ „does nothing more than
explain to a jury one of the tests they may use in resolving a credibility dispute.‟ ”
(Beardslee, at p. 95; quoting People v. Blassingill (1988) 199 Cal.App.3d 1413,
1419.) It does not speak to, nor does it conflict with, the ultimate burden of proof
applicable to the elements of the charge. (People v. Hillhouse (2002) 27 Cal.4th
469, 493; see People v. Centeno (2014) 60 Cal.4th 659, 672.) The instruction “ „is
unobjectionable when, as here, it is accompanied by the usual instructions on
reasonable doubt, the presumption of innocence, and the People‟s burden of
proof.‟ ” (People v. Kelly (2007) 42 Cal.4th 763, 792 (Kelly), quoting Nakahara,
at p. 715; accord, People v. Riel (2000) 22 Cal.4th 1153, 1200.)
       Defendant criticizes precedent that looks to the reasonable doubt instruction
as a cure for an alleged ambiguity, particularly where the challenged instruction
itself contains no such cross-reference. We have long held that “the correctness of
jury instructions is to be determined from the entire charge of the court, not from a

                                          31
consideration of parts of an instruction or from a particular instruction.” (People
v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another ground in People
v. Reyes (1998) 19 Cal.4th 743, 753.) Thus, “ „[t]he absence of an essential
element in one instruction may be supplied by another or cured in light of the
instructions as a whole.‟ ” (Burgener, at p. 539.) The jury here was given
CALJIC No. 1.01, which told them to “[c]onsider the instructions as a whole and
each in light of all the others.” Given the emphasis placed on proof beyond a
reasonable doubt throughout the charge (see, e.g., CALJIC Nos. 2.01, 2.02, 2.61,
2.90, 7.35, 8.71, 8.75, 8.80.1, 17.01, 17.10, 17.25), we reject defendant‟s
suggestion that “[i]t is just as likely the jurors concluded that the reasonable doubt
instruction was qualified or explained by the other instructions that contain their
own independent references to the evaluation or sufficiency of particular
evidence.”
       CALJIC No. 2.22‟s direction to consider “the convincing force of the
evidence” in weighing the testimony of a number of witnesses, did not lessen the
prosecution‟s burden of proof where the instructions as a whole correctly
instructed the jury on that burden. (People v. Cleveland (2004) 32 Cal.4th 704,
751 (Cleveland).) Contrary to defendant‟s argument, there is no reason to
presume the jury would equate the word “convincing” with the lesser
preponderance of the evidence standard, which was nowhere mentioned in the
instructions given.
       CALJIC No. 2.27, as given, told the jury that “[t]estimony by one witness
which you believe concerning any fact is sufficient for the proof of that fact.”
Contrary to defendant‟s argument, the instruction did not erroneously suggest that
defendant had the burden of proving facts, rather than simply raising a reasonable
doubt about the prosecution‟s case. The instruction “ „is unobjectionable when, as
here, it is accompanied by the usual instructions on reasonable doubt, the

                                          32
presumption of innocence, and the People‟s burden of proof.‟ ” (Kelly, supra, 42
Cal.4th at p. 792.) Specifically, CALJIC No. 2.90, as given, told the jury that
defendant was “presumed to be innocent until the contrary is proved,” and that
“[t]his presumption places upon the People the burden of proving him guilty
beyond a reasonable doubt.” CALJIC No. 2.61, as given, told the jury that “[i]n
deciding whether or not to testify, the defendant may choose to rely on the state of
the evidence and upon the failure, if any, of the People to prove beyond a
reasonable doubt every essential element of the charge against him. No lack of
testimony on defendant‟s part will make up for a failure of proof by the People so
as to support a finding against him on any such essential element.” In light of the
instructions as a whole, CALJIC No. 2.27 is not susceptible to the interpretation
defendant suggests.
       CALJIC No. 2.51, as given, told the jury that “[m]otive is not an element of
the crime charged and need not be shown. However, you may consider motive or
lack of motive as a circumstance in this case. Presence of motive may tend to
establish the defendant is guilty. Absence of motive may tend to show the
defendant is not guilty.” Defendant argues that the instruction shifted the burden
of proof to him to disprove motive in order to establish his innocence. “But the
instruction did not shift the burden of proof. It merely told the jury it may
consider the presence or absence of motive. [Citations.] The motive instruction
did not itself include instructions on the prosecution‟s burden of proof and the
reasonable doubt standard, but it also did not undercut other instructions that
correctly informed the jury that the prosecution had the burden of proving guilt
beyond a reasonable doubt.” (Cleveland, supra, 32 Cal.4th at p. 750.) Defendant
further argues that the instruction improperly allowed the jury to convict based on
the presence of motive alone. Because this argument merely goes to the clarity of
the instruction, it is forfeited by defendant‟s failure to object below. (Ibid.) In any

                                          33
event, given the instructions on the elements of the charged crimes and the burden
of proof beyond a reasonable doubt, “[w]e find no reasonable likelihood the jury
would infer from the motive instruction that motive alone could establish guilt.
Moreover, given the strong evidence of guilt aside from motive, the jury certainly
did not base its verdicts solely on motive.” (Ibid.)
       Finally, CALJIC No. 8.20 did not mislead the jury regarding the
prosecution‟s burden of proof at the guilt phase. The instruction told the jury that
deliberation and premeditation “must have been formed upon preexisting
reflection and not under a sudden heat of passion or other condition precluding the
idea of deliberation.” Defendant argues that “the word „precluding‟ could be
interpreted to require the defendant to absolutely eliminate the possibility of
premeditation, as opposed to raising a reasonable doubt.” However, when read in
conjunction with the instructions on reasonable doubt, the presumption of
innocence, and the People‟s burden of proof, there is no reasonable likelihood the
jury would have interpreted CALJIC No. 8.20 in this manner. (Nakahara, supra,
30 Cal.4th at p. 715.) “These instructions make it clear that a defendant is not
required to absolutely preclude the element of deliberation.” (Ibid.)

       B. Penalty Phase Issues

           1. Constitutionality of Lying-in-Wait Special Circumstance
       “At the time of defendant‟s crime, the special circumstance of murder while
lying in wait (former § 190.2, subd. (a)(15)) required „an intentional murder
committed under circumstances which include (1) concealment of purpose, (2) a
substantial period of watching and waiting for an opportune time to act, and (3)
immediately thereafter, a surprise attack on an unsuspecting victim from a position




                                         34
of advantage.‟ ” (Casares, supra, 62 Cal.4th at p. 827.)17 Defendant argues that
the lying-in-wait special circumstance, as interpreted by this court, fails to narrow
the class of persons eligible for the death penalty, and fails to provide a
“ „ “meaningful basis for distinguishing the few cases in which [the death penalty]
is imposed from the many cases in which it is not,” ‟ ” in violation of the Eighth
Amendment. (Godfrey v. Georgia (1980) 446 U.S. 420, 427.) He reasons that
there is no meaningful distinction between the lying-in-wait special circumstance
and first degree murder predicated on theories of premeditation and deliberation or
lying in wait. As a result, the special circumstance does not perform a narrowing
function and can apply to virtually any intentional first degree murder. For much
the same reasons, he argues, murders committed by lying in wait are no more
deserving of the extreme sanction of death than other premeditated killings.
       As defendant acknowledges, we have repeatedly rejected these claims.
(People v. Streeter (2012) 54 Cal.4th 205, 252-253 (Streeter); People v. Carasi
(2008) 44 Cal.4th 1263, 1310; People v. Stevens (2007) 41 Cal.4th 182, 203-204;
Nakahara, supra, 30 Cal.4th at p. 721; People v. Gutierrez (2002) 28 Cal.4th
1083, 1148-1149; People v. Morales (1989) 48 Cal.3d 527, 557-558, disapproved
on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) These
holdings were recently reaffirmed in Casares, supra, 62 Cal.4th 808, which
explained, “we have differentiated between the lying-in-wait special circumstance

17      Defendant committed his crimes before the effective date of Proposition 18,
which changed the definition of the lying-in-wait special circumstance from a
killing “while” lying in wait to a killing “by means of” lying in wait. (§ 190.2,
subd. (a)(15) as amended by Stats. 1998, ch. 629, §§ 2, 3, pp. 4165-4166, enacted
by Prop. 18, as submitted to and approved by voters, Primary Elec. (Mar. 7, 2000)
eff. Mar. 8, 2000.) We recently addressed a challenge to the validity of the
amended special circumstance in People v. Johnson (2016) 62 Cal.4th 600, 634-
637.



                                          35
and lying in wait as a theory of first degree murder on the bases that the special
circumstance requires an intent to kill (unlike first degree murder by lying in wait,
which requires only a wanton and reckless intent to inflict injury likely to cause
death) and requires that the murder be committed „while‟ lying in wait, that is,
within a continuous flow of events after the concealment and watching and
waiting end. [Citations.] Contrary to defendant‟s argument, the lying-in-wait
special circumstance is not coextensive with either theory of first degree murder; it
does not apply to all murders and is not constitutionally infirm.” (Id. at p. 849.)
       Casares also rejected defendant‟s challenge to the validity of the special
circumstance on the ground that only three other states use lying in wait as a basis
for death eligibility. We observed, apart from noting “the rarity, among capital
punishment jurisdictions, of lying in wait as a death-eligibility factor, defendant
provides no historical information regarding any change, to or away from, the use
of lying in wait for this purpose.” (Casares, supra, 62 Cal.4th at p. 851.) We
observed that the high court had not held, “whether by discerning a national
consensus on the issue or through some other mode of analysis, that a form of
murder as defined by a state, when committed by one with a sufficient degree of
participation and without a characteristic deemed to limit culpability as a matter of
law was, per se, insufficiently aggravated to permit imposition of the death penalty
under the Eighth Amendment.” (Id. at p. 852.) Finally, we emphasized that
“ „[m]urder committed by lying in wait has been “anciently regarded . . . as a
particularly heinous and repugnant crime.” ‟ ” (Id. at p. 853, quoting People v.
Edelbacher (1989) 47 Cal.3d 983, 1023.) For these same reasons, we reject
defendant‟s contentions here.




                                         36
            2. Constitutionality of Death Eligibility Provision for Aggravated
               Assault by a Life Prisoner (§ 4500)
       Defendant contends that section 4500 violates the Eighth Amendment
because it qualifies persons for death based on an arbitrary criterion that fails to
promote the goals of retribution and deterrence. He argues that this eligibility
provision does not “adequately differentiate . . . in an objective, evenhanded, and
substantially rational way” (Zant v. Stephens (1983) 462 U.S. 862, 879), murder
defendants for whom the jury may consider a death sentence from those for whom
it may not. According to defendant, it is irrational to qualify an inmate for death
based on “the type of sentence an inmate is serving, rather than the offense
underlying that sentence.” He argues that others serving determinate term
sentences may have committed more heinous crimes than the crimes that qualified
defendant for a 25-years-to-life term under the Three Strikes law, but that fact is
not accounted for in section 4500‟s eligibility criteria. He also argues that the
death penalty is not a deterrent, and that lesser sanctions such as revoking parole
eligibility suffice.
       We recently considered and rejected similar claims in People v. Landry
(2016) 2 Cal.5th 52 (Landry). For the reasons stated there, we reject defendant‟s
constitutional challenge to section 4500.
       “To pass constitutional muster, a capital sentencing scheme must
„genuinely narrow the class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder.‟ ” (Lowenfield v. Phelps (1988) 484
U.S. 231, 244.)
       As to the first requirement, Landry noted that “the class of individuals
potentially subject to the death penalty under section 4500 is quite circumscribed:
persons serving a life sentence who, with malice aforethought, assault another



                                          37
with a deadly weapon or instrument, or by any means of force likely to produce
great bodily injury, resulting in the death of the victim within a year and a day.”
(Landry, supra, 2 Cal.5th at p. 107.) “The statute easily satisfies the requirement
that an eligibility factor „apply only to a subclass of defendants convicted of
[homicide].‟ (Tuilaepa v. California [(1994)] 512 U.S. [967,] 972.)” (Ibid.)
       Regarding the second requirement, Landry explained that “the Legislature
has determined that death eligibility for life prisoners who commit an aggravated
assault that leads to the victim‟s death is required to „protect[] [their fellow]
prisoners . . . against the assaults of the vicious, and also to protect the officers
who are required to mingle with the inmates, unarmed.‟ ([People v.] McNabb
[(1935)] 3 Cal.2d [441,] 458; accord, [People v. Superior Court (Bell) (2002)] 99
Cal.App.4th [1334,] 1341.) By imposing more severe penalties on those serving
life sentences, „the Legislature was attempting to deter severely violent crime by
those who might otherwise think themselves immune from punishment because
they were already lifetime guests of the state penal system.‟ (In re Carmichael
(1982) 132 Cal.App.3d 542, 546.) Along with retribution, deterring attacks by life
prisoners and thereby promoting the safety of inmates and correction officers are
legitimate penal objectives. (See Kennedy v. Louisiana (2008) 554 U.S. 407, 420
(Kennedy) [„punishment is justified under one or more of three principal
rationales: rehabilitation, deterrence, and retribution‟].) These rationales of
institutional security, deterrence, and retribution provide a reasonable justification
for distinguishing this category of murder from others to which the death penalty
does not apply.” (Landry, supra, 2 Cal.5th at pp. 107-108.)
       Defendant complains that inmates who are serving a life sentence “are not
necessarily more culpable than those serving a determinate sentence and are
therefore not necessarily more deserving of execution when they commit fatal
assaults while incarcerated.” Landry rejected a similar argument, noting that

                                           38
“[s]ection 4500 is a death eligibility statute as opposed to a death selection
statute.” (Landry, supra, 2 Cal.5th at p. 106; see Tuilaepa v. California (1994)
512 U.S. 967, 971-972.) In other words, a defendant convicted of violating
section 4500 is eligible for the death penalty or, alternatively, life without the
possibility of parole. (Landry, at p. 106.) It is up to the jury to decide whether it
will select the death penalty as appropriate. “There is no requirement at the
eligibility stage that a narrowly circumscribed class of defendants for whom the
death penalty is reasonably justified be further distinguished according to the
particular circumstances that led to their eligibility. Rather, that is a question that
goes to the selection stage and its individualized determination requirement. Only
at that point does the Eighth Amendment require „a broad inquiry into all relevant
mitigating evidence to allow an individualized determination.‟ (Buchanan v.
Angelone [(1998)] 522 U.S. [269,] 276.)” (Id. at p. 108.) The reason a defendant
was a life prisoner at the time of the charged killing may be a relevant
consideration for the jury at the penalty phase. It is not germane, however, to the
justification for including such persons in the death-eligible class. (Ibid.)
       Landry further rejected the defendant‟s reliance on Sumner v. Shuman
(1987) 483 U.S. 66, a case that struck down as unconstitutional a mandatory
capital sentencing procedure for prisoners who committed murder while serving a
sentence of life without the possibility of parole. As the Supreme Court noted,
under those circumstances, “[w]ithout consideration of the nature of the predicate
life-term offense and the circumstances surrounding the commission of that
offense, the label „life-term inmate‟ reveals little about the inmate‟s record or
character.” (Sumner, at p. 81.) Landry found Sumner‟s holding inapposite to
section 4500, which does not impose a mandatory death sentence. “The [Sumner]
court did not, however, question the legitimacy of deterrence and retribution as
rationales. In short, the statute in Sumner differs from section 4500 in crucial

                                          39
respects, and defendant‟s reliance on Sumner is misplaced.” (Landry, supra, 2
Cal.5th at p. 111.)
       Defendant argues that there are ways other than a death sentence to deter
murder in prison, and that statistical evidence suggests capital punishment does
not actually deter in-prison homicide. His arguments are misplaced. “The weight
and validity of such studies involve policy questions within the Legislature‟s
purview. So, too, do defendant‟s arguments regarding retributive steps short of
death that might be taken against prisoners who kill. These studies do not
establish that imposing death eligibility on life prisoners who commit fatal
aggravated assaults is constitutionally impermissible.” (Landry, supra, 2 Cal.5th
at p. 111.)
       Finally, defendant urges that an interjurisdictional comparison demonstrates
a lack of societal consensus that the death penalty is warranted for murder by a life
prisoner. He argues that only three states, Alabama, Mississippi, and New
Hampshire, have a statute equivalent to section 4500. Landry characterized a
similar argument as “tendentious” because “the vast majority of jurisdictions with
the death penalty regard custody status as a significant factor in either death
penalty eligibility or death penalty selection, or for both purposes. Of the 31 states
and the federal government whose laws currently authorize imposition of the death
penalty, the laws of 29 states and the federal government use custody status as a
death-eligibility or a death-selection factor, or both. It appears that only Nebraska
and South Carolina do not explicitly include custodial status as a death-eligibility
or selection factor.” (Landry, supra, 2 Cal.5th at p. 113.) We concluded:
“Defendant does not cite, nor has our research found, a single judicial decision
from any death penalty jurisdiction that has held that the use of custodial status as
either an eligibility or a selection factor for the death penalty violates the Eighth
Amendment. Nor has defendant shown that any jurisdiction that reenacted the

                                          40
death penalty following Furman v. Georgia [(1972)] 408 U.S. 238, omitted
custodial status as either an eligibility or selection factor for purposes of the death
penalty. Thus, defendant fails to demonstrate the existence of an historical
trajectory supporting a conclusion that the majority, or, indeed, any, of the death
penalty jurisdictions has abandoned custody status as a factor for imposing the
death penalty.” (Id. at p. 113.)
       Defendant‟s constitutional challenge to section 4500‟s death eligibility
provision fails.

           3. Admission of Other Crimes Evidence in Aggravation (§190.3,
              factor (b))
       The prosecution introduced evidence in aggravation of 10 unadjudicated
incidents during which defendant was extracted from his prison cell. Defendant
argues that, for seven of these incidents, the evidence was legally insufficient to
prove that he engaged in criminal activity involving the use or attempted use of
force or violence, or express or implied threats to use force or violence (hereafter
use, attempt, or threat of violence). (§ 190.3, factor (b) (factor (b)).) According to
defendant, admission of this evidence violated his state and federal constitutional
rights to due process, equal protection, a fair trial, trial by an impartial jury, and a
reliable and non-arbitrary penalty determination. We reject his claims.

                   a. Forfeiture
       Defendant failed to object at trial to admission of other crimes evidence on
the ground that it did not meet factor (b)‟s criteria. He has thus forfeited his
appellate claim. (People v. Livingston (2012) 53 Cal.4th 1145, 1175 (Livingston);
People v. Lewis (2008) 43 Cal.4th 415, 529 (Lewis), disapproved on another
ground in People v. Black (2014) 58 Cal.4th 912, 919; People v. Montiel (1993) 5
Cal.4th 877, 928, fn. 23, disapproved on another ground in People v. Sanchez
(2016) 63 Cal.4th 665, 686, fn. 13; Evid. Code, § 353.) Defendant urges us to


                                           41
revisit this precedent because, he claims, a sufficiency of the evidence challenge is
preserved by contesting the evidence at trial. (See, e.g., People v. McCullough
(2013) 56 Cal.4th 589, 596.) The rule he cites applies to sufficiency of the
evidence challenges to convictions. We have found that precedent inapplicable to
evidence admitted in aggravation. As we explained in Montiel, “Even if defendant
need do nothing at trial to preserve an appellate claim that evidence supporting his
conviction is legally insufficient, a different rule is appropriate for evidence
presented at the penalty phase of a capital trial. There the ultimate issue is the
appropriate punishment for the capital crime, and evidence on that issue may
include one or more other discrete criminal incidents. (§ 190.3, factors (b), (c).) If
the accused thinks evidence on any such discrete crime is too insubstantial for jury
consideration, he should be obliged in general terms to object, or to move to
exclude or strike the evidence, on that ground.” (Montiel, at p. 928, fn. 23, citing
Evid. Code, § 353, subd. (a).) In other words, because the penalty decision is
normative and the prosecution need not prove that any given aggravating
circumstance exists in order to obtain a death judgment (People v. Anderson
(2001) 25 Cal.4th 543, 589 (Anderson)), defendant may not challenge the verdict
on the ground that the prosecutor failed to prove each of the elements of an
uncharged offense beyond a reasonable doubt. His claim of error lies in the
erroneous admission of such evidence; that claim must be preserved by a timely
objection in the trial court.
       Livingston, supra, 53 Cal.4th 1145, recently affirmed this principle. There
the defendant argued that his claim should not be deemed to be forfeit because “he
is not challenging the admission of the evidence but its sufficiency, a challenge a
defendant may make on appeal from a conviction without an objection. But, as we
explained in Montiel, here the evidence was admitted at the penalty phase of a
capital trial as aggravating evidence, not to support a conviction for that crime.”

                                          42
(Id. at p. 1175.) Livingston held that the defendant had “forfeited the claim the
evidence should not have been admitted on the ground that it was insufficient.
Defendant could, and did, argue to the jury that the evidence was insufficient.
But, as People v. Montiel, supra, 5 Cal.4th 877, explains, he cannot argue on
appeal the evidence should not even have been admitted without objecting on this
ground at trial.” (Ibid.)
       Defendant further argues that his challenge to the admission of the cell
extractions that occurred on March 8, 1997 at High Desert State Prison, and on
April 18, 2000 at Corcoran State Prison should not be deemed to be forfeit
inasmuch as the court examined the admissibility of those two incidents on its own
motion. He reasons that any further objection by counsel would have been futile
because the trial court had already addressed the issue and there was no reason to
think that a specific objection would have resulted in a different ruling. He cites
People v. Hill (1998) 17 Cal.4th 800, but that case is distinguishable. In Hill,
defense counsel was “subjected to a constant barrage of . . . unethical conduct” by
the prosecutor that the trial court failed to control. (Id. at p. 821.) The atmosphere
was “so poisonous,” and reflected so unfavorably on defense counsel in front of
the jury, that counsel‟s failure to object was excused under the “unusual
circumstances” of that case. (Ibid.) No similar circumstances are present here.
Defendant points to no instance where the trial court precluded his counsel‟s
objections. On the contrary, at one point when discussing the admissibility of the
aggravating evidence, the court expressly invited defense counsel‟s comments.
       Additionally, defendant‟s arguments on appeal deviate from the concerns
the trial court raised below. With respect to the April 18, 2000 incident, discussed
further below, the court challenged the prosecutor‟s representation that
defendant‟s possession of a pepper spray canister qualified a weapon under section
4502. It was satisfied, however, that a battery occurred when defendant snatched

                                         43
the pepper spray from the guard, and made contact with his hand. By contrast, on
appeal, defendant argues that simple assault and misdemeanor battery are
categorically excluded as acts of violence under section 190.3, factor (b).
Regarding the March 8, 1997 incident, also discussed below, the trial court
initially wondered whether the defendant‟s actions amounted to an assault. It was
later satisfied by the officer‟s explanation that defendant had rushed at the guards
while holding a mattress. On appeal, defendant argues that he charged out of the
cell because the officers ordered him to come out, and that he used the mattress as
a shield to defend himself from rubber bullets, not as a weapon. Defendant offers
no explanation why the trial court would have refused to consider these additional
points in ruling on the admissibility of the evidence. Accordingly, defense
counsel‟s failure to raise them constitutes a forfeiture.
              b. The Evidence Was Properly Admitted
       Although defendant‟s challenge was forfeited, we briefly address his claims
on the merits. “ „ “[A] trial court‟s decision to admit „other crimes‟ evidence at
the penalty phase is reviewed for abuse of discretion, and no abuse of discretion
will be found where, in fact, the evidence in question was legally sufficient.” ‟ ”
(People v. Tully (2012) 54 Cal.4th 952, 1027 (Tully).) No abuse of discretion
appears.

                    i.     Incidents on March 8, 1997 at High Desert State Prison
                           and on April 18, 2000 at Corcoran State Prison
       Sergeant Dewall testified that on March 8, 1997, defendant and his cellmate
covered their cell window, which prevented security checks. Despite repeated
orders from staff, the inmates refused to remove the covering. Officers sprayed
three bursts of pepper spray into the cell at two-minute intervals. Each time the
inmates were given an opportunity to comply, but refused. The officers then fired
six projectiles into the cell, again giving the inmates an opportunity to comply


                                          44
between each discharge. When the cell door was opened, defendant ran into the
officers as he tried to charge out holding a mattress. This evidence was sufficient
to establish a battery, which “is any willful and unlawful use of force or violence
upon the person of another.” (§ 242.)
       Lieutenant James Gatto testified that on April 18, 2000, defendant was told
he would have to move to a different cell. He refused to be handcuffed, and said
that he was “going to go my way.” Lieutenant Gatto organized a cell extraction.
He sprayed pepper spray through the food port. Defendant reached through the
port and grabbed the canister, making contact with Gatto‟s hand. Defendant then
struck the window of his cell 14 times with the large metal canister, shattering the
glass. Defendant‟s contact with Gatto‟s hand as he snatched the canister
constituted a battery.
       Defendant argues that these incidents should not have been admitted
because they “were simple assault and misdemeanor battery, not acts of violent
criminality.” He maintains that criminal activity should only be admissible under
section 190.3, factor (b) “when the circumstances of its commission causes,
threatens to cause, or is likely to cause serious bodily harm.” However, we have
consistently upheld admission of conduct amounting to a misdemeanor battery as
a circumstance in aggravation under factor (b). (See e.g., Tully, supra, 54 Cal.4th
at pp. 1027-1029 [defendant twice wrestled with other inmates and threw
punches]; People v. Thomas (2011) 51 Cal.4th 449, 504-505 (Thomas) [defendant
sucked on a woman‟s neck without permission, leaving a bruise]; People v.
Hamilton (2009) 45 Cal.4th 863, 934 [defendant spat on a deputy]; People v.
Burgener (2003) 29 Cal.4th 833, 868 (Burgener) [defendant threw water, urine,
scouring powder, bleach, and other substances at correctional officers].)
       Additionally, the proper admission of evidence under factor (b) is not based
on the abstract, definitional nature of the offense, but on the conduct it involves.

                                          45
(People v. Thomas (2011) 52 Cal.4th 336, 363.) Charging at correctional officers
and attempting to bowl them over while holding a mattress as a shield constitutes a
serious threat of force; so too does grabbing a large canister of pepper spray and
using it to shatter the security window of a prison cell.
       As to the March 8, 1997 extraction, defendant argues “[t]here was no
evidence that [he] intended to make any physical contact with the guards. His
„charging‟ out of the cell was in response to repeated orders to exit the cell. The
mattress . . . held before him was used as a shield against the rubber bullets, not as
a weapon, and also prevented harm to the correctional officers by blocking contact
with [defendant‟s] hands and feet.” Defendant‟s claims of lawful compliance and
actions in self-defense are belied by the evidence. The officers gave defendant
ample opportunity to peaceably comply with their directives before resorting to
pepper spray and projectiles. Given defendant‟s classification as a high security
risk, the officers‟ use of nonlethal force to remove him from the cell was not
excessive. At the guilt phase the jury heard defendant‟s statement explaining his
motivation for provoking cell extractions: “things build up man, it just builds up
and I just get so angry I can‟t control it. I try to stay away from Cell Extractions
because that‟s the last thing I want to do is have problems with the [correctional
officers] when I‟m depending on them so much. But it get[s] to the point to where
you know what it doesn‟t matter man. . . . You know so it‟s like I feel that I have
to do something more than [arguing with or gassing18 the guards] you know I feel
that I have to draw blood[;] I have to do something[;] I have to try to hurt one of
them. You know in order to feel successful.” (Italics added.) “I do [cell

18      “Gassing” involves intentionally throwing human excrement or bodily
fluids, or a mixture containing them, that results in contact with a person‟s skin or
membranes. (§ 4501.1, subd. (b).)



                                          46
extractions] because that‟s the only opportunity which I‟m gonna have physical
contact with [the guards,] you know what I mean. And uh aside from wrestling I
don‟t even, I‟m not trying to wrestle with them I‟m not trying to fist fight with
them you know. I‟m hoping that I could take out the mask, if I can get a hold of
razor blade you know what I mean, or whatever I could do. If I could bring harm
to them. And I want them to pay you know what I‟m saying because they take it
as a big old joke so I look like at it‟s like of any, any harm I could strike against
them I‟m up against it anyway. I can‟t beat whatever how many is coming in that
cell, I know that. But if I can cut one of them[,] stab one of them whatever,
however way I can, to me that‟s success.” (Italics added.) Given defendant‟s own
statements, his attempt to recharacterize these incidents as nonviolent attempts at
peaceful compliance fail.
       Under these circumstances, the trial court did not err in admitting the
March 8 and April 18 incidents.

                    ii.     Incidents on March 12 and 13, 1997 at High Desert
                            State Prison and on November 13, 1999, March 29,
                            2000, and April 15, 2000 at Corcoran State Prison
       On March 12, 1997, defendant and his cellmate Romo obscured the
window of their cell and refused to remove the covering. When Sergeant Dewall
tried to look into the cell through the food port, he was struck by two small
cardboard milk containers containing a yellowish-brown substance that smelled of
feces and urine. The substance splashed onto his face and arm. Dewall ordered
the inmates to submit to handcuffing but they refused. Early the next morning,
officers performed a cell extraction. The officers sprayed pepper spray into the
cell three times. Each time they directed defendant and Romo to comply with
their orders, but the inmates refused. When officers fired six rubber projectiles
into the cells, defendant and Romo again refused to comply. The officers forcibly


                                          47
entered the cells; both defendant and Romo attacked them. Officer Hornbeck fell
down, and defendant punched him repeatedly in the chest. On a scale of one to
10, Sergeant Dewall described defendant‟s aggressiveness towards the officers as
a nine.
          The gassing incident and the subsequent fight with a correctional officer
were admissible under section 190.3, factor (b) as batteries. (Burgener, supra, 29
Cal.4th at p. 868.) Defendant argues that the gassing should not have been
admitted because Dewall did not see who threw the liquid. He fails to persuade.
There were only two men in the cell. Two containers were thrown at the same
time. Defendant refused to comply with commands both before and after the
gassing. He put up a violent struggle during the subsequent cell extraction. This
evidence supported a jury finding that he was responsible for the gassing as either
a direct perpetrator or as an aider and abettor. Defendant also asserts that the
officers used excessive force against him, and that he acted in self-defense when
punching Officer Hornbeck. The jury could have concluded otherwise, however,
given defendant‟s stated intent to provoke cell extractions, his refusal to comply
with the officer‟s commands, and his striking Hornbeck repeatedly in the chest as
Hornbeck lay on the floor. Both incidents were properly admitted.
          On November 13, 1999, Officer Jamie Tovar escorted inmate Lopez to the
shower. As they passed by defendant‟s cell, Lopez kicked at something. Tovar
saw an object protruding from defendant‟s food port. He pushed Lopez out of the
way and kicked at the object, breaking it into two pieces. The object was a plastic
spoon handle sharpened to a point and wrapped in rolled paper. During a
subsequent search of defendant‟s cell, Officer Carlos Espinoza found a sharpened
toothbrush wrapped in a paper handle. Defendant occupied the cell by himself.
This evidence that defendant possessed a potentially dangerous weapon was
admissible under factor (b). (People v. Wallace (2008) 44 Cal.4th 1032, 1081-

                                           48
1082 (Wallace); Lewis, supra, 43 Cal.4th at pp. 529-530.) Defendant argues that
no witness saw him in possession of the sharpened spoon. However, the fact that
defendant was alone in the cell when the item was seen protruding from the food
port was sufficient circumstantial evidence that he possessed the weapon.
       On March 29, 2000, defendant was in a cell talking with Officer Kenneth
Pearson. Defendant reached out and placed a weapon on the ledge of the cell‟s
food port. Another officer, Francisco Mascarenas, saw the weapon and videotaped
the rest of the encounter. The tape shows the weapon sitting on the ledge. After
Pearson walks away, defendant picks up the weapon and hides it in the waistband
of his boxer shorts. Mascarenas ended the video, walked over to defendant, and
told him to surrender the weapon. Defendant threw it into a trash can. The
weapon was six inches long with a paper handle and a three-quarters‟ inch
sharpened metal point. This evidence that defendant possessed a potentially
dangerous weapon was admissible under factor (b). (Wallace, supra, 44 Cal.4th at
pp. 1081-1082; Lewis, supra, 43 Cal.4th at pp. 529-530.)
       Defendant maintains that this incident was unreliable because the videotape
evidence contradicted Pearson‟s testimony that he saw defendant place what he
thought was a piece of paper in the food port, and then brush it onto the floor.
This minor discrepancy is of no moment. The videotape and Mascarenas‟s
testimony clearly show defendant in possession of the weapon. Defendant also
argues that the weapon posed no threat of force or violence because he made no
attempt to use it against Officer Pearson. It has been established for over two
decades that possession of a potentially dangerous weapon in custody “is unlawful
and involves an implied threat of violence even where there is no evidence
defendant used or displayed it in a provocative or threatening manner.” (People v.
Tuilaepa (1992) 4 Cal.4th 569, 589, disapproved on another ground in People v.
Harris (2008) 43 Cal.4th 1269, 1311; accord, Lewis, supra, 43 Cal.4th at pp. 529-

                                         49
530.) Notably, defendant did not surrender the weapon to Officer Pearson, but
instead concealed it on his person after Pearson walked away. “The circumstances
of defendant‟s possession of the [weapon], particularly when viewed together with
his overall conduct while in custody . . . lead us to conclude that the trial court did
not abuse its discretion in admitting the evidence . . . .” (Wallace, supra, 44
Cal.4th at p. 1082.)
       On April 15, 2000, Officer William Henderson saw defendant standing on
his bunk trying to cover the overhead light fixture with a blanket. Another
correctional officer, William Butts, removed defendant from the cell and searched
it. He found three metal weapons hidden under a blanket. One was a two-and-
one-quarters‟ inch long metal stock, sharpened to a point. A second was three
inches long, sharpened on one side, and fixed to a paper handle. A third was
approximately five inches long, sharpened to a point, with a handle fashioned from
cloth and surgical tape. Grooves had been cut into the Plexiglas light fixture and
defendant‟s bunk. Plastic shavings on the floor appeared to have come from the
light fixture. Defendant occupied the cell alone. Again, this evidence that
defendant possessed potentially dangerous weapons was admissible under factor
(b). (Lewis, supra, 43 Cal.4th at pp. 529-530.) Defendant argues there was no
evidence that he knew of the weapons or had control over them. No one saw him
make the weapons or place them under the blanket. However, the fact that
defendant was alone in the cell with weapons hidden under his blanket and fresh
shavings on the floor was sufficient circumstantial evidence of knowing
possession. (See ibid.)
       Because each of the challenged incidents was admissible under section
190.3, factor (b), defendant‟s further arguments that the jury considered invalid
and irrelevant aggravating factors in violation of the Eighth and Fourteenth
Amendments fails. (Tully, supra, 54 Cal.4th at p. 1030.)

                                          50
               c. Sufficiency of Aggravating Evidence
       Defendant further argues that, as to these seven unadjudicated aggravating
circumstances, the evidence presented was legally insufficient to prove them
beyond a reasonable doubt. He contends that the penalty phase determination was
impermissibly skewed by the jury‟s consideration of numerous aggravating
incidents that the prosecution ultimately failed to prove. No error appears.
       “To admit evidence of unadjudicated crimes under section 190.3, factor (b)
necessarily entails a risk that the evidence may not be sufficient to convince all
jurors of the defendant‟s guilt. Yet we have described this risk as acceptable, in
view of the need to place before the jury all evidence properly bearing on its
capital sentencing decision, and in view of the rule that no juror may consider such
evidence unless first convinced of its truth beyond a reasonable doubt.
[Citation.][19] The court must give such an instruction sua sponte whenever it
admits evidence under factor (b). [Citations.]” (People v. Yeoman (2003) 31
Cal.4th 93, 132 (Yeoman).)
       Here, the court instructed on the elements of weapon possession by a
prisoner (§ 4502, subd. (a)), assault (§ 240), and battery by a state prisoner on a
nonprisoner (§ 4501.5). It further instructed on the use of lawful force by a
correctional officer and on self-defense in response to excessive force. It directed
that no juror could consider an uncharged criminal act in aggravation unless first
convinced of its truth beyond a reasonable doubt.
       Whether defendant‟s use of force was legally justified and the weight, if
any, to be given to these incidents for purposes of the individualized penalty


19    California law requires proof beyond a reasonable doubt of other crimes
evidence as “a foundational requirement—one not mandated by the Constitution.”
(Anderson, supra, 25 Cal.4th at p. 589.)



                                          51
assessment were matters for the jury to decide in light of the given instructions.
(Tully, supra, 54 Cal.4th at p. 1030.) “[A]ny hypothetical juror whom the
prosecution‟s evidence might not have convinced beyond a reasonable doubt must
be presumed to have followed the court‟s instruction to disregard the evidence.”
(Yeoman, supra, 31 Cal.4th at pp. 132-133.) The jury‟s consideration of the
evidence did not violate defendant‟s federal constitutional rights under the Eighth
or Fourteenth Amendment.

           4. Instruction with CALJIC No. 8.87 on the Use of Other Crimes
              Evidence as a Circumstance in Aggravation
       The court gave CALJIC No. 8.87, regarding the use of other criminal
activity as a circumstance in aggravation under section 190.3, factor (b). That
instruction, as given, referred to the other crimes committed “which involved the
express or implied use of force or violence or the threat of force or violence.”
Defendant argues that the instruction creates an impermissible mandatory
presumption by removing the force or violence requirement from the jury‟s
determination. He further argues that the instruction erroneously fails to define
that requirement. These errors, he contends, violated his state and federal
constitutional rights to a jury trial and to a reliable penalty verdict determination.
       As defendant acknowledges, we have repeatedly held that the trial court
determines as a matter of law whether the prosecution‟s proposed evidence is a
crime involving the use, attempt, or threat of violence. The jury determines only
whether the prosecution has proved beyond a reasonable doubt that the defendant
committed the unadjudicated criminal act. (Bryant, supra, 60 Cal.4th at pp. 451-
452; Streeter, supra, 54 Cal.4th at p. 266; People v. Taylor (2010) 48 Cal.4th 574,
656 (Taylor); People v. Burney (2009) 47 Cal.4th 203, 259; People v. Loker
(2008) 44 Cal.4th 691, 745; People v. Monterroso (2004) 34 Cal.4th 743, 793;
Nakahara, supra, 30 Cal.4th at p. 720.)


                                          52
       Defendant urges us to reconsider this long-standing precedent. He
criticizes Nakahara for its brief treatment of the issue. There we held that “[t]he
question whether the acts occurred is certainly a factual matter for the jury, but the
characterization of those acts as involving an express or implied use of force or
violence, or the threat thereof, would be a legal matter properly decided by the
court.” (Nakahara, supra, 30 Cal.4th at p. 720.) Defendant argues that the force
or violence requirement is a component of relevancy, first addressed by the court
as a question of admissibility, but ultimately determined by the jury under
Evidence Code section 403, subdivision (a)(1). He claims that People v. Dunkle
(2005) 36 Cal.4th 861 (Dunkle)20 so holds. He is wrong.
       Section 190.3 defines what type of evidence may be admitted. It provides
that evidence of the use, attempt, or threat of force or violence “may be presented”
and “shall be admitted.” (§ 190.3.) People v. Phillips (1985) 41 Cal.3d 29, held
that the trial court must determine, as a question of law, whether unadjudicated
conduct is admissible as meeting the statutory definition. (Id. at p. 72, fn. 25,
citing Evid. Code, § 310.) The jury then determines whether the activity has been
proven beyond a reasonable doubt. (Phillips, at p. 72, fn. 25, citing Evid. Code,
§ 312; accord, Anderson, supra, 25 Cal.4th at p. 589.)
       This interpretation is consistent with our long-standing understanding of the
jury‟s role in evaluating unadjudicated crimes as a circumstance in aggravation.
At the penalty phase, the jurors must “ „ “make an individualized assessment of
the character and history of the defendant to determine the nature of the
punishment to be imposed.” ‟ ” (Taylor, supra, 48 Cal.4th at p. 653.) “[T]he
ultimate question for the sentencer is simply whether the aggravating

20     Dunkle was disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, footnote 22.



                                          53
circumstances, as defined by California‟s death penalty law (§ 190.3), so
substantially outweigh those in mitigation as to call for the penalty of death, rather
than life without parole.” (Anderson, supra, 25 Cal.4th at p. 589.) “The
defendant‟s history of criminal violence is relevant” to that issue. (Id. at p. 588.)
We have long held, however, that the jury need not be instructed sua sponte on the
elements of the unadjudicated crimes. (Taylor, at p. 656; Anderson, at pp. 587-
589; People v. Tahl (1967) 65 Cal.2d 719, 736-738.) This is because the issue
before the jury “is the appropriate penalty for the defendant‟s already-proven
capital crimes, not whether the defendant committed the specific elements of
additional criminal offenses.” (Anderson, at p. 588.) For the same reasons, the
jury need not be instructed that it must find the unadjudicated criminal offenses
involved the use, attempt, or threat of force or violence before it can consider the
evidence. Rather, the jury simply considers the presence or absence of such
factors in determining “the weight, if any, to be given to these incidents for
purposes of the individualized assessment of [defendant‟s] character and history.”
(Tully, supra, 54 Cal.4th at p. 1030.)
       Dunkle, supra, 36 Cal.4th 861, stands not to the contrary. There we
rejected the defendant‟s argument that the trial court erred in failing to define
“ „express or implied threat to use force or violence‟ ” in the context of an
uncharged burglary. (Id. at p. 922.) We observed that the phrase “possesses a
„ “common-sense core of meaning . . . that criminal juries should be capable of
understanding.” ‟ ” (Ibid., quoting Tuilaepa v. California, supra, 512 U.S. at p.
975.) We also rejected the defendant‟s argument that “the instruction on burglary
for theft improperly permitted the jury to find an aggravating factor based on an
offense not involving the use or threat of force or violence against a person.”
(Dunkle, at p. 922, italics added.) We concluded that “the burglary instruction, the
general section 190.3, factor (b) instruction, and CALJIC No. 8.87 adequately

                                          54
conveyed to the jury that before it could consider the [uncharged] incident in
aggravation it had to find, beyond a reasonable doubt, all of the elements of the
offense of burglary and that the offense involved the use or attempted use of force
or violence, or the express or implied threat to use force or violence.” (Id. at pp.
922-923.) We were not called upon to decide whether CALJIC No. 8.87 was
defective, as defendant here contends. Nor did we acknowledge or discuss the
long line of established authority (see ante, at p. 52), that the trial court determines
as a matter of law whether the uncharged crime involved the use, attempt, or threat
of violence. “It is axiomatic, of course, that a decision does not stand for a
proposition not considered by the court.” (People v. Harris (1989) 47 Cal.3d
1047, 1071.)
       Notably, CALJIC No. 8.87 did not preclude counsel from arguing against
the aggravating nature of such evidence based on the surrounding facts. Counsel
in fact urged the jury to find this evidence insignificant because the cell
extractions were prompted by minor rules violations and no correctional officers
were injured.

              5. Constitutionality of the Death Penalty Statute and Related
                 Instructions
       Defendant presents a multipronged general attack on the constitutionality of
California‟s death penalty statute and related standard jury instructions. We have
previously considered and consistently rejected these challenges. We decline to
revisit the following holdings:
       The use of the same jury at both the guilt and penalty phases does not
deprive defendant of his constitutional right to an impartial and unbiased jury
under the Sixth, Eighth, and Fourteenth Amendments. (Taylor, supra, 48 Cal.4th
at p. 652.)




                                           55
        Section 190.2 adequately narrows the class of murderers subject to the
death penalty. (People v. Rogers (2006) 39 Cal.4th 826, 892 (Rogers); People v.
Jablonski (2006) 37 Cal.4th 774, 837.)
        Section 190.3, factor (a) properly allows the jury to consider the
circumstances of the crime as an aggravating factor. (Thomas, supra, 51 Cal.4th
at p. 506.) It is not overbroad either facially or as applied. (People v. Robinson
(2005) 37 Cal.4th 592, 655.)
        “[T]he use of unadjudicated offenses [under section 190.3, factor (b)] in
capital proceedings, but not in noncapital matters, does not violate equal
protection or due process principles.” (Taylor, supra, 48 Cal.4th at p. 651.)
        “The death penalty law is not unconstitutional for failing to impose a
burden of proof—whether beyond a reasonable doubt or by a preponderance of the
evidence—as to the existence of aggravating circumstances, the greater weight of
aggravating circumstances over mitigating circumstances, or the appropriateness
of a death sentence.” (People v. Thornton (2007) 41 Cal.4th 391, 469; accord,
People v. Elliot (2005) 37 Cal.4th 453, 487-488 (Elliot).) Furthermore, there is no
federal constitutional requirement that the jury unanimously agree on the existence
of aggravating factors. (Taylor, supra, 48 Cal.4th at p. 651; Rogers, supra, 39
Cal.4th at p. 893.) The United States Supreme Court‟s decisions in Cunningham
v. California (2007) 549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296,
Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S.
466, do not compel a different conclusion. (Taylor, at pp. 651-652; Rogers, at p.
893.)
        “The trial court was not required to instruct the jury that . . . the beyond-a-
reasonable-doubt standard and requirement of jury unanimity do not apply to
mitigating factors.” (Streeter, supra, 54 Cal.4th at p. 268; accord, Kansas v. Carr
(2016) __ U.S. __, __ [136 S.Ct. 633, 642] [“[O]ur case law does not require

                                           56
capital sentencing courts „to affirmatively inform the jury that mitigating
circumstances need not be proved beyond a reasonable doubt.‟ ”].) Nor was it
required to instruct the jury that there is a “ „ “presumption of life” ‟ at the penalty
phase.” (Lomax, supra, 49 Cal.4th at p. 595.)
       “Use in the sentencing factors of such adjectives as „extreme‟ (§ 190.3,
factors (d), (g)) and „substantial‟ (id., factor (g)) does not act as a barrier to the
consideration of mitigating evidence in violation of the federal Constitution.”
(People v. Avila (2006) 38 Cal.4th 491, 614-615.)
       “The trial court is not required to delete inapplicable sentencing factors
from CALJIC No. 8.85.” (People v. McDowell (2012) 54 Cal.4th 395, 444
(McDowell).) Nor must the court instruct the jury that section 190.3, factors (d),
(e), (f), (g), (h) and (j) are only relevant as factors in mitigation. (Thomas, supra,
51 Cal.4th at p. 506.)
       CALJIC No. 8.88 adequately informs the jury that “the central
determination is whether death is the „appropriate punishment.‟ ” (McDowell,
supra, 54 Cal.4th at p. 444; see Woodson v. North Carolina (1976) 428 U.S. 280,
305.) The instruction “properly explains to the jury that it may return a death
verdict if the aggravating evidence „warrants‟ death.” (McDowell, at p. 444.)
       “The instructions were not impermissibly broad or vague in directing jurors
to determine whether the aggravating factors were „so substantial in comparison
with the mitigating factors that it warrants death instead of life without parole.‟
[Citation.]” (People v. Valdez (2012) 55 Cal.4th 82, 180.)
       CALJIC No. 8.88 properly conveys to the jury that life in prison without
the possibility of parole is the appropriate punishment if the factors in mitigation
outweigh those in aggravation. (People v. Jones (2012) 54 Cal.4th 1, 78-79.)




                                            57
        “The death penalty law is not unconstitutional for failing to require that the
jury base any death sentence on written findings.” (Elliot, supra, 37 Cal.4th at p.
488.)
        “Finally, we have repeatedly held that the death penalty does not violate the
Eighth Amendment to the United States Constitution or international law,
including article VII of the International Covenant on Civil and Political Rights
(Dec. 16, 1966). (People v. Butler [(2009)] 46 Cal.4th [847,] 885; People v. Cook
[(2007)] 40 Cal.4th [1334,] 1368.) We also adhere to our conclusion that review
for intercase proportionality is not constitutionally compelled. (Pulley v. Harris
(1984) 465 U.S. 37, 42, 50-51; People v. Williams [(2008)] 43 Cal.4th [584,] 649;
People v. Harris (2008) 43 Cal.4th 1269, 1322-1323.)” (Lomax, supra, 49 Cal.4th
at p. 595.)
                                 III. DISPOSITION
        The judgment is affirmed.
                                                          CORRIGAN, J.


WE CONCUR:


CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                          58
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Delgado
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S089609
Date Filed: February 27, 2017
__________________________________________________________________________________

Court: Superior
County: Kings
Judge: Peter M. Schultz

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Jolie Lipsig,
Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell, Sean
M. McCoy and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jolie Lipsig
Deputy State Public Defender
770 L Street, Suite 1000
Sacramento, CA 95814-3518
(916) 322-2676

Tia M. Coronado
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5232
