Filed 7/18/16




        IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S102166
           v.                        )
                                     )
RICHARD NATHAN SIMON,                )
                                     )                       Riverside County
           Defendant and Appellant.  )                    Super. Ct. No. CR-68928
____________________________________)

        In November 1999, a Riverside County jury found defendant Richard
Nathan Simon guilty of the first degree murders of Vincent Anes and Sherry
Magpali (Pen. Code,1 § 187, subd. (a)), the second degree murder of Michael
Sterling with the personal use of a firearm (ibid.), the rape of Magpali (§ 261,
subd. (a)(2)), and the kidnapping of Magpali (§ 207, subd. (a)). The jury further
found true the special circumstance allegations of multiple murder (§ 190.2, subd.
(a)(3)), that Simon committed Anes‘s murder while engaged in the commission of
a robbery (former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A)), and
that Simon committed Magpali‘s murder while engaged in the commission of a
robbery, kidnapping, and rape (id., subd. (a)(17)(i)-(iii), now subd. (a)(17)(A)-
(C)).



1       Unless otherwise noted, all subsequent statutory references are to the Penal
Code.



                                          1
         The jury was unable to reach a decision at the first penalty trial, so the court
declared a mistrial. The court then empaneled a new jury, which fixed the penalty
as death after a second penalty trial.2 The trial court automatically reviewed the
verdict (§ 190.4, subd. (e)), declined to modify it, and sentenced Simon to death.
         This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow,
we affirm the judgment in its entirety.
                                    I. BACKGROUND

         A. Guilt Phase

             1. Prosecution Evidence

                 a. The Killings of Vincent Anes and Sherry Magpali
         On the evening of December 2, 1995, Vincent Anes drove his girlfriend
Sherry Magpali and their friends Jose and Eugene Menor to a party in Moreno
Valley. About two hours later, the four left the party, went bowling, and visited
nearby Taco Bell and Claim Jumper restaurants. Not long after midnight, Anes
dropped Magpali off near her house and drove the Menor brothers home. Jose
then observed Anes make a U-turn and travel back toward Magpali‘s residence.
         Around 1:00 a.m., Kenneth Riomales, Jason and John Marianas, and Noah
Maling drove by Pedrorena Park and saw Anes‘s car in the parking lot. Assuming
Anes was with Magpali, they did not stop. No more than half an hour later, the
group returned, checked on the car, and saw a bullet-ridden naked body in the rear
seat. Although the body‘s face was covered, they suspected it was Anes. Without
immediately calling 911, the group drove to Anes‘s nearby house and asked
Anes‘s mother if her son was home. When Anes‘s mother confirmed that he was


2        Unless otherwise noted, the ―penalty phase‖ refers to this second penalty
trial.



                                            2
not, Riomales called 911 and the group returned to Pedrorena Park with Anes‘s
mother, brother, and grandfather. Officers met the group within minutes and
confirmed that Anes was deceased.
       The investigating officers observed that Anes‘s body was missing a ring
and necklace that he had been wearing earlier that evening. Also missing was a
large speaker from the car‘s trunk. From the vehicle, investigators collected eight
9-millimeter shell casings and three 9-millimeter projectiles. They also found a
jacket holding some of Magpali‘s possessions, including a camera with
photographs of the couple from that evening‘s party.
       Nearby, officers found Anes‘s underwear and T-shirt on a basketball court.
The underwear had been cut along the edges of the waist and legs, and the crotch
had been cut or ripped out. Officers also found torn pieces of Magpali‘s
undergarments as well as Anes‘s pants, belt, and sock on the roof of a restroom.
Magpali‘s bra was on the ground near that restroom. Officers recovered 29 latent
fingerprints from the vehicle and six from the restroom door, but none matched
any prints within the automated statewide fingerprint identification system.
       Later that morning, officers found Magpali‘s body several miles away on
the side of Interstate 215 in Sun City, clothed only in jeans and a blouse. Rings
and a necklace she had been wearing that night were missing. Investigators noted
blood under her head, and bloodstains on her right hand and jeans. They
recovered two 9-millimeter shell casings near Magpali‘s body and two 9-
millimeter projectiles in the dirt beneath her head. Investigators also applied ―tape
lifts‖ to collect trace evidence that may have adhered to Magpali‘s body and
clothing.
       Evidence from the victims‘ bodies was later collected at the coroner‘s
office. Plant material was collected from Anes‘s penis and thigh, but there was no
indication of sexual assault. Anes‘s autopsy revealed eight gunshot wounds, all

                                          3
received within a span of seconds to a minute or two, and from a gun fired
between three and 18 inches away. In total, five 9-millimeter projectiles were
removed from Anes‘s body. The other three had been found in the vehicle.
Magpali‘s autopsy revealed two gunshot wounds to the head, with holes consistent
with a medium caliber weapon fired from at least 18 to 24 inches away.
Inconclusive evidence indicated that a third projectile may have grazed Magpali‘s
face. Toxicology screenings of Anes and Magpali came back negative for alcohol
and drugs.
       Trace evidence collected from Magpali‘s body included fibers, fingernail
clippings, swabs from her hands and vagina, and brushings from the hair on her
head and pubic region. Brushings from her pubic hair, as well as the vaginal
swab, revealed the presence of sperm. Her jeans and shirt showed possible semen
stains, in addition to plant material and bloodstains. And although no signs of
vaginal trauma were detected, Magpali‘s legs had fingertip bruising and scratches
consistent with being held forcefully. When police later obtained a DNA profile
from Simon‘s blood sample, it matched the DNA profile exhibited in the sperm
fraction present on the vaginal swab taken from Magpali‘s body and in the stains
from the crotch area of her jeans. Simon was the only possible source of the DNA
samples obtained from those sperm fractions.
       Other trace evidence on Magpali‘s body included red fibers on her jeans
and on the back of her right leg. These fibers were later determined to be
consistent with carpet fibers from a 1981 Dodge Colt, which was owned at the
time by Curtis Williams,3 an associate of Simon‘s. Upon further inspection, this

3      Williams was arrested in connection with the murders of Anes and Magpali
on October 6, 1999. He was tried and convicted in separate proceedings and is not
involved in this appeal.



                                         4
vehicle contained two bullet-sized holes, one at the front edge of the glove box
and one behind it, which tested ―weakly positive‖ for lead. While possible that
one bullet created both holes, no projectile was found in Williams‘s car.
       Preliminary examination of the recovered projectiles and shell casings from
both crime scenes showed that all projectiles were probably fired from the same
gun. The cartridge casings, in particular, exhibited a distinctive impression left by
the gun‘s firing pin, which was entered into the Federal Bureau of Investigation‘s
Drugfire system.
       On January 18, 1996 — less than seven weeks after the bodies of Anes and
Magpali had been discovered — Simon was pulled over for a traffic stop with two
passengers in the car. All occupants were arrested, the car was impounded, and an
inventory search revealed a nine-millimeter handgun containing 17 rounds under
the front passenger‘s seat. Mamie Meeks — Simon‘s front seat passenger —
testified that earlier that day Simon had driven to a nearby home to pick up a gun
he had said he needed for protection from ―some of the gang bangers or something
in San Bernardino he didn‘t get along with.‖ Meeks explained that upon being
pulled over, Simon gave the gun to Meeks and told her to put it under the seat.
Simon called Meeks from jail the next day, asking her to claim ownership of the
weapon. When she refused, Simon became angry and told Meeks that he was
going to ―fuck her up.‖ This threat prompted Meeks‘s relocation to Nevada for
several months. Simon was eventually released from custody.
       On May 7, 1996, cartridge casings from the gun found in Simon‘s
possession were test fired. They matched the impression previously entered into
the Drugfire system. Further examination revealed that all 10 cartridge casings
recovered from the Anes and Magpali crime scenes had been fired from that gun.




                                          5
               b. The Killing of Michael Sterling
      The night of May 25, 1996, officers responding to a call arrived at an
apartment complex in Moreno Valley. The officers found Vernice Haynes in a
field across from the complex‘s parking lot, kneeling next to Michael Sterling,
who had been shot. Sterling was conscious at the time, but he died of a single
gunshot wound to the chest shortly after paramedics transported him to Riverside
Hospital.
      Haynes — Sterling‘s then-fiancée — testified that on the night of the
incident, she and Sterling had been visiting an apartment where Davinna Gentry,
Sterling‘s cousin, lived with Williams, Gentry‘s boyfriend. Around 8:00 p.m.,
Simon, joined by Jamal and Raheen Brown, knocked on the door. When Gentry
opened it, Simon asked if ―Droopy‖ (i.e., Williams) was home. Gentry turned to
look at Williams, stepping away from the door, at which point Simon entered and
shook Williams‘s hand.
      Williams introduced Simon to Sterling, the two shook hands, and Simon
asked Sterling where he was from. After Sterling identified himself as a member
of the Inland Empire (IE) gang, Simon — who claimed membership in a rival
gang — became angry, cursing at Sterling. Sterling stood up and lifted his shirt,
showing that he was unarmed, and told Simon that he had just been released from
prison and was ―trying to be cool.‖ According to both Gentry and Haynes, Simon
then told Jamal and Raheen to go get his gun, but they refused. At trial, Jamal
denied that Simon had made this request.
      Williams attempted to usher Simon outside to talk. Simon responded by
swinging his fist at Williams and asking why he was hanging out with ―IE.‖
Gentry asked Simon to leave, as she did not want fighting in her home. Around
this time, Simon asked Williams if he could use the bathroom, and during his
absence Gentry told Williams to get Simon out of the house.


                                         6
       Testimony conflicted on the events that followed. Gentry testified that after
Simon used the bathroom, he appeared to have calmed down, apologized to
Sterling and Williams, shook Sterling‘s hand, hugged Sterling, and left the
apartment with Williams in tow. According to Haynes, Simon cooled down,
apologized, and hugged Sterling before going to the bathroom. Haynes testified
further that during Simon‘s absence, she told Sterling that she wanted to leave
because she was afraid Simon was going to shoot them. But Sterling, worried
what might happen to Williams, preferred to stay. Haynes also said that when
Simon exited the bathroom, he apologized again to Sterling, but struck Williams in
the face with his elbow and yelled at Williams for having Sterling in the house. At
some point, though, Simon exited the house, and Williams followed.
       Testimony again conflicted on the events that transpired after Simon and
Williams went outside. According to Haynes, she and Gentry urged Sterling to
stay inside, but he insisted on leaving to check on Williams. Haynes testified that
she asked Gentry if there was a back door so that she could go get Sterling‘s
brothers, but Gentry told her not to leave the house. And as she and Gentry were
arguing, Haynes said she heard three shots.4 Haynes then testified that Williams
returned within moments; he appeared to have been in a fight. She ran outside,
observed Simon and one of his friends running toward Simon‘s car, saw Sterling
staggering in the field across the street, and ran toward Sterling. Sterling fell to
the ground and told Haynes that he would be going back to jail.
       When interviewed by police, Gentry‘s version of the events was consistent
with Haynes‘s testimony in that Gentry said she was inside the apartment when
she heard gunfire. At trial, however, Gentry claimed that the transcript of her


4      After the incident, Haynes told officers she had heard four shots.



                                           7
taped interview with police was incorrect. Gentry testified instead that after
Sterling exited the house, Haynes became upset and ran into the bathroom. Gentry
claimed she then ran out the back door and looked over the gate to see what was
happening. Gentry said that she could only see shadows, but could tell that
Sterling was leaning on Simon‘s car, and heard Simon tell Sterling to get off the
vehicle. When Sterling stood up, she heard two shots together, and a third three to
four minutes later.
       Jamal Brown also testified at trial, acknowledging that he and his brother
Raheen accompanied Simon to Gentry‘s apartment that evening. Jamal recalled
arguments both inside and outside of the apartment, but he testified that Simon
never told him to go get a gun. Jamal testified further that he did not remember
how many shots were fired and was not paying attention to what was going on
immediately before the shooting. When an officer interviewed Jamal on May 31,
1996, however, Jamal said he had heard two shots. During that interview, Jamal
also said that Simon had shown him a gun the day of the incident. And although
Jamal claimed not to have witnessed the events immediately preceding the
shooting, he told the officer that Simon ―totally shot [Sterling] cold blooded.‖
       When they arrived at the scene, officers found a spent shell casing under a
stairway across from where Sterling fell. Sterling‘s autopsy showed that he was
killed by a single gunshot wound to the torso from a .22-caliber bullet traveling
slightly downward, slightly forward, and from about two feet away. Sterling‘s
toxicology screening was positive for marijuana and showed a blood-alcohol
content of 0.10 percent at the time of death.
       On May 26, 1996, officers arrested Simon and searched his home. The
search was conducted in accordance with a condition of Simon‘s probation for a
1993 attempted robbery conviction. The condition required that Simon ―[s]ubmit
[his] person and property under [his] control to search or seizure at any time of the

                                          8
day or night . . . with or without a warrant, or probable cause.‖ During the search,
officers found a .22-caliber handgun under Simon‘s mattress, a box of CCI brand
ammunition, and a clip loaded with several brands of bullets. Investigators later
determined that the shell casing recovered from the Sterling crime scene was fired
by this gun, and the projectile from Sterling‘s body could have been fired by this
gun.

           2. Defense Evidence
       The defense theory of the Anes/Magpali murders was that Williams alone
was responsible for killing the two teens. In support of this theory, the defense
presented evidence that Williams would have had access to the murder weapon
during the relevant time period. Defense witnesses testified that on January 18,
1996, when Simon was stopped for the traffic violation, he had gone with Meeks
to a residence on Fay Avenue to pick up the gun. Witnesses testified further that
Williams regularly visited a friend at that house.
       As to the Sterling homicide, the defense argued that the offense amounted
to less than first degree murder based in part on character evidence suggesting
Sterling had a propensity for violence. Haynes, Sterling‘s fiancée at the time,
testified that Sterling had been in prison for assaulting another man, and that he
had been in jail on other occasions.

       B. Penalty Phase
       At the penalty phase, the prosecution relied on the circumstances of the
crimes and Simon‘s previous misconduct as evidence in aggravation supporting
imposition of the death penalty. The prosecution presented testimony relating to
the circumstances of the convicted offenses, as well as victim impact evidence on
behalf of Magpali, Anes, and Sterling. As to previous misconduct, the prosecution
introduced evidence that jail personnel had found shanks in Simon‘s cell on two



                                          9
occasions. The prosecution also introduced evidence of a letter, purportedly
written by Simon while in jail, to his cousin Terri Richardson. The letter, which
referenced committing possible acts of violence against other inmates, was
admitted to show Simon‘s motive or intent for possessing a shank on the first
occasion. The letter stated, for example, ―I‘ll hurt one of these fools . . . . I‘m
tired of these punk ass fools in here . . . .‖ It continued, ―I‘m not going to take this
shit too much longer. . . . I‘m going to lay one of they ass out. I‘ll beat the shit
out of one of these fools.‖ The letter was signed, ―Still you cuz, Nate.‖
       The defense presented evidence in mitigation. In making the case for
mitigation, the defense focused on Simon‘s psychological background, including
testimony from relatives about Simon‘s childhood and expert testimony discussing
organic brain damage. Simon‘s mother, who eventually became a police officer,
testified that she had been in several abusive relationships during Simon‘s
formative years. One of those relationships was with her patrol sergeant, who
became physically abusive toward both her and Simon. On one occasion, this man
punched Simon for teasing the man‘s youngest son. On another, the man tied
Simon‘s hand to a door with a belt and beat him severely. When Simon was in his
late teens, he was knocked unconscious during a fight at a park in Compton.
About a year later, Simon moved from California to Michigan to live with
relatives. While there, he suffered a gunshot wound to the head, causing him to
lose sight in his left eye. After being hospitalized for his injuries, Simon returned
to California. His cousin Richardson testified that Simon seemed different when
he came back from Michigan. But Simon was supportive of Richardson during
her pregnancy. Another of Simon‘s female relatives, his half sister, testified that
she considered Simon a positive role model who had discouraged her from
engaging in criminal behavior.



                                          10
       The defense also offered testimony from two medical experts. The first,
Dr. David Fukuda, treated Simon during the time he was incarcerated pending
trial. Dr. Fukuda prescribed medication to control Simon‘s seizures and ordered
skull X-rays and a computerized axial tomography (CAT) scan, which revealed
bullet fragments lodged in Simon‘s right nasal bone and left eye socket. The CAT
scan also revealed encephalomalacia of the right frontal lobe with deformity of the
overlying cranium consistent with Simon‘s previous surgery to treat the gunshot
wound he sustained in this area. The second expert, neurologist Dr. Kenneth
Nudleman, examined Simon prior to trial. Dr. Nudleman reviewed Simon‘s
medical records and ordered additional neurological testing. From these sources,
Dr. Nudleman concluded that Simon suffered from significant organic brain
damage primarily to the right frontal lobe and, to a lesser extent, the left frontal
lobe. He found roughly 20-25 percent of Simon‘s right frontal lobe was missing.
This part of the brain, Dr. Nudleman explained, is involved with impulse function
and anger control.
       During rebuttal, the prosecution introduced an undated and unaddressed
letter that had been enclosed in the Richardson letter and was purportedly directed
toward Simon‘s wife, Keisia. The letter, introduced to rebut evidence of Simon‘s
good character, contained threatening and explicit language. It read, for instance:
―If I can‘t get you, I‘m getting the closest thing to you, bitch. . . . [¶] I‘m going to
get you, bitch. . . . I‘m the one to be scared of. . . . [¶] I‘m already a dead man
walking, . . . so can‘t shit you say or do hurt me. But I can do a whole lot to hurt
you. . . . [¶] You are now considered road kill, bitch, and if you run from it, your
best friend takes your place.‖ The letter was signed, ―Until doomsday, yours that
is; [¶] Nate, (rides again).‖




                                          11
                                  II. DISCUSSION

       A. Issue Affecting Both Phases

           1. Stun Belt
       Simon claims the trial court erred by requiring him to wear a remote-
controlled stun belt as a security measure during the guilt and penalty phases.5
We disagree.

                a. Background
       On September 13, 1999, the first day of jury selection, defense counsel
requested that ―no chains, shackles, cuffs [or] anything of that sort be worn by the
defendant during the course of the trial.‖ Defense counsel stated that he had been
told Simon was wearing a Remote Electronically Activated Control Technology
(REACT) stun belt that day, an arrangement defense counsel opposed unless the
court could provide adequate justification. Defense counsel also complained that
the belt was placed in such a manner — near Simon‘s left hip — that some jurors
might be able to notice it.
       The trial court granted the motion that Simon be unshackled. But the court,
relying on a series of incidents described by the bailiff, denied Simon‘s request to
have the stun belt removed. At the court‘s behest, the bailiff detailed the
following incidents on the record: in June 1996, Simon had a fight with another
inmate; less than a year later, in April 1997, jail personnel found a shank in
Simon‘s cell; in July 1998, Simon refused to obey a deputy‘s order, and jail
personnel found excess food in his cell; in September 1998, Simon refused to
return to his cell during a lockdown, and jail personnel found two plastic shanks in

5       A stun belt is a device worn around the waist that delivers an incapacitating
electric shock when activated by a court security officer. (See People v. Mar
(2002) 28 Cal.4th 1201, 1204 (Mar).)



                                         12
Simon‘s cell; in August 1999, jail personnel found feces stored in a container in
Simon‘s cell, along with cleaning products; and that same month, Simon
threatened a new deputy.
       In denying Simon‘s motion, the trial court expressed particular concern
about the shanks and incidents of fighting. The court also noted that it had
inquired into why the feces and cleaning supplies were significant and learned
from the bailiff, as well as from another deputy who was present during their
discussion, that these items are commonly used in making explosives.
       Defense counsel next indicated that Simon was uncomfortable because the
position of the stun belt prevented him from leaning back in his chair. Defense
counsel also requested that the belt be placed on Simon‘s right side to make it
more difficult for the jury to notice its presence. The trial court asked whether the
belt could be worn on either side, to which the bailiff responded that the belt could
only be placed on the left side. The court then asked if the inability to lean back is
a typical problem with the belt, and the bailiff explained that an extra cushion
positioned on the right side usually solved this problem.
       Defense counsel interjected to raise another concern: Simon had a prior
injury to his left hip area that was causing him discomfort. The cushion, defense
counsel explained, did not improve Simon‘s ability to lean back, and he was
worried Simon would appear uncomfortable in front of the jury. Defense counsel
also argued that Simon should not have to wear the stun belt at all because there
had been no indication that Simon was a flight risk, and because searching him
prior to his entering the courtroom would alleviate any concerns about his bringing
in weapons.
       The trial court declined to change its positon. The court explained that its
primary concern was not necessarily that Simon would bring a shank into the
courtroom or attempt to escape. Rather, the concern was that the shanks, fights,

                                          13
and bomb-making materials indicated to the court that Simon was a danger to
others. The court noted further: ―When we bring 75 good citizens into the
courtroom, I think we need to do everything we can to make sure that they are
protected, as well as our own staff and counsel. And I think that . . . some kind of
restraint is appropriate.‖ The court also prepared a minute order, dated September
13, 1999, which read: ―Oral Motion By DEFENSE regarding NO RESTRAINTS
ON DEFT DURING TRIAL is called for hearing. [¶] Motion Granted. [¶]
Defendant to remain unshackled during trial. [¶] Motion denied as to React Belt.
Defendant to wear React Belt during trial.‖
       Simon renewed his objection to wearing the stun belt on July 16, 2001, at
the start of the penalty phase. Defense counsel noted the absence of any incidents
during the three and a half month trial of the guilt phase, and during the year and a
half since a mistrial had been declared at the first penalty trial. Defense counsel
acknowledged that the stun belt was ―less obtrusive and noticeable than shackles
or something of that sort,‖ but he added that the stun belt was still a ―fairly
obtrusive item‖ and could be seen if Simon were not wearing a jacket.
       The trial court solicited information from a sheriff‘s deputy, who reminded
the court of incidents with the shanks and the fight involving another inmate. The
deputy also mentioned that Simon had claimed to be a member of the Crips gang
and had been verbally aggressive toward deputies on several occasions since 1998
and as late as 2001. The deputy noted further that Simon had written a letter in
1997 containing racial slurs and mentioning a possible attempt to assault a
Hispanic inmate. Finally, the deputy opined that because Simon had already been
convicted, he had nothing to lose. Simon was therefore considered ―a very high
security risk‖ who was being housed accordingly.
       Defense counsel argued that neither the charges brought against Simon nor
the nature of his crimes could alone justify requiring him to wear the stun belt.

                                          14
Further, defense counsel objected to the vagueness of the deputy‘s references to
Simon‘s alleged verbal aggression toward his jailers. He questioned the reliability
of the information and noted that the deputy was not under oath. The deputy
interjected at that point, explaining that an incident had happened that morning.
       The trial court then asked for input from the prosecutor, who argued that
Simon had exhibited violent tendencies by taking the time to manufacture
weapons in his cell, and that the court should ensure the safety of the courtroom by
requiring Simon to wear the stun belt. The prosecutor also noted the possibility of
using another type of stun belt that is worn on the leg rather than the waist. A
deputy explained that this device is called a Band-It, but it was being used at
another facility so it was not available that day. The deputies would need two
days‘ lead time in order to obtain it.
       After reflecting on the views expressed by counsel and the relevant
information, the trial court ruled that Simon should continue to wear the stun belt
for the penalty phase. The court agreed with defense counsel that verbal
aggressiveness, the threats in the letter, and the nature of the charges and possible
punishment did not warrant use of the stun belt. The court also agreed that Simon
was unlikely to bring a weapon to court. Nonetheless, Simon‘s previous
possession of shanks demonstrated a potential willingness to commit violence.
Observing that only one or two armed deputies would be present, the court
reiterated its concern for the safety of the more than 90 people that would be in the
courtroom. The court also stated it would ―certainly direct the deputies at this
time to put [the stun belt] on in such a way that it is as unobtrusive as possible.‖
In this vein, the court asked again whether the belt could be put on Simon‘s right
side. Although the deputies had previously told the court this was not possible,
they now informed the court that the belt could in fact be placed on Simon‘s right
side for the penalty phase. The court also asked the deputies to look into the

                                          15
possibility of obtaining the Band-It, but defense counsel did not press the matter
further.

                b. Legal Standard
       A trial court has broad power to maintain courtroom security and orderly
proceedings, and its decisions on these matters are reviewed for abuse of
discretion. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 389
(Bryant, Smith and Wheeler).) That discretion, however, must yield to principles
of due process. (Ibid.) To that end, we have held that physical restraints of any
kind are inappropriate in the courtroom while the jury is present, unless there is a
manifest need for such restraints. (People v. Duran (1976) 16 Cal.3d 282, 290-
291 (Duran).) This ―manifest need‖ standard applies equally to use of a stun belt.
(Mar, supra, 28 Cal.4th at pp. 1218-1220.) In determining whether there is a
manifest need to restrain the defendant, courts consider several factors, including
evidence that the defendant poses a safety or flight risk or is likely to disrupt the
proceedings. (Bryant, Smith and Wheeler, at p. 389.) The use of physical
restraints in the absence of a record showing of violence, a threat of violence, or
other nonconforming conduct is an abuse of discretion. (Duran, at p. 291.)
       No formal hearing is required. But when the use of restraints is based on
conduct of the defendant that occurred outside the presence of the trial court,
sufficient evidence of such conduct must be presented on the record so that the
court may make its own determination of the nature and seriousness of the conduct
and whether there is a manifest need for such restraints. (Mar, supra, 28 Cal.4th
at p. 1221.) The court may not, we have emphasized, merely rely on the judgment
of law enforcement or court security officers or the unsubstantiated comments of
others. (Ibid.) The court‘s determination must be based on facts, not rumor or
innuendo. (People v. Cox (1991) 53 Cal.3d 618, 652.) And even when the record



                                          16
establishes a manifest need for restraints, the restraint imposed must be the least
obtrusive or restrictive one that would be effective under the circumstances.
(Duran, supra, 16 Cal.3d at p. 291; Mar, at p. 1226.)

                c. Analysis
       Simon argues first that the trial court abused its discretion by applying a
lower standard at the guilt phase to reject his request to have the stun belt
removed. According to Simon, the court improperly applied something akin to a
―good cause‖ standard — rather than the required manifest need standard. In
support of his contention, Simon points to the fact that the court, after sustaining
Simon‘s objection to being shackled, appears to have treated the stun belt issue as
a separate matter. Simon also points to the trial court‘s statement that use of the
stun belt was ―appropriate‖ (instead of ―necessary‖) as suggesting that it applied
something lower than the manifest need standard prescribed by Duran and Mar.
       But Simon‘s guilt phase and penalty phase trials predated Mar. In that
case, we held for the first time that the record must demonstrate a manifest need
— rather than mere good cause — for imposition of a stun belt. And even if the
trial court‘s use of the word ―appropriate,‖ rather than ―necessary,‖ may suggest it
applied a lower standard, the record as a whole establishes that the manifest need
standard was met. (See People v. Mayfield (1993) 5 Cal.4th 142, 196 [―The record
of the hearing as a whole persuades us, however, that even though the court, in
isolated instances, misstated the applicable standard, it nevertheless applied the
proper concept‖].)
       The record shows that, at the guilt phase, the trial court based its decision
on Simon‘s violent behavior in custody and his potential danger to others in the
courtroom. In particular, the court‘s decision was based on Simon‘s fight with
another inmate; the discovery, on two different occasions, of shanks in Simon‘s



                                          17
cell; the discovery of feces and cleaning products, which Simon had stored in a
container for possible use as an explosive; and Simon‘s threat against a corrections
deputy. The court stated on the record that these incidents showed that Simon was
a potential danger to jurors, court staff, and counsel. Likewise, at the penalty
phase, the court relied on Simon‘s previous possession of shanks as evidence of
his potential readiness to commit violence.
       The trial court‘s findings and analysis were sufficient to show a manifest
need for the stun belt. As we have held previously, a defendant‘s disruptive
behavior while in jail, including possession of shanks or explosives, justifies the
imposition of restraints. (See, e.g., People v. Wallace (2008) 44 Cal.4th 1032,
1050 [evidence of fighting with inmates and possession of illegal razors]; People
v. Lewis and Oliver (2006) 39 Cal.4th 970, 1032 [defendant attacked another
inmate and threatened to kill deputies]; People v. Combs (2004) 34 Cal.4th 821,
838 [defendant possessed two shanks in jail and threatened jail deputies]; People
v. Alvarez (1996) 14 Cal.4th 155, 190-192 [fights with inmates, threatening
deputies, and possession of weapons and an explosive device].)
       In addition, the record shows the trial court was ―aware of its obligation
[under Duran] to make its own determination on the need for restraints, and not
simply defer to the wishes of the prosecutor or courtroom security personnel.‖
(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 391.) The court explained that
it needed to state on the record the reasons justifying resort to the stun belt and
identified the specific incidents supporting use of that restraint. The court further
demonstrated an understanding of its duty under the Duran line of cases by noting
at the start of the penalty phase that the mere fact of Simon‘s conviction and
potential sentence could not justify imposition of the stun belt. (See Duran, supra,
16 Cal.3d at p. 293 [―we cannot condone physical restraint of defendants simply
because they are prisoners already incarcerated on other charges or convictions‖];

                                          18
see also People v. Hawkins (1995) 10 Cal.4th 920, 944 [―We agree with defendant
that his record of violence, or the fact that he is a capital defendant, cannot alone
justify his shackling‖].) Instead, the court relied on Simon‘s history of possessing
shanks, a circumstance we have held sufficient to show a manifest need for
restraints. (See People v. Combs, supra, 34 Cal.4th at p. 838.)
       Simon contends that the incidents of violence supporting the trial court‘s
decision were not described in sufficient detail because the bailiff had no personal
knowledge of the events. This argument is unavailing. We have found that a trial
court can base its decision to restrain a defendant on reliable facts provided by law
enforcement or counsel. (See, e.g., People v. Wallace, supra, 44 Cal.4th at
pp. 1049-1050 [upholding trial court‘s imposition of restraints where deputy
represented that defendant had 16 rules violations while in jail]; People v. Medina
(1995) 11 Cal.4th 694, 731 [prosecutor‘s representations of facts, made without
objection or rebuttal by defendant, properly supported trial court‘s ruling to
impose restraints].) Unlike in People v. Cox, supra, 53 Cal.3d at page 651, where
the trial court‘s decision was based on ― ‗rumors floating through the jail‘ ‖ about
an escape attempt, the court here grounded its decision on incidents that had
already occurred and for which the bailiff provided specific dates. The court also
explained that it had inquired further into the significance of the feces and
cleaning supplies, learning that these items could be used in tandem to create
explosives. Moreover, as in People v. Medina, supra, 11 Cal.4th at page 731,
Simon did not dispute his possession of the shanks and bomb-making components,
or his altercation with another inmate. At the penalty phase, defense counsel did
object on vagueness grounds to the deputy‘s references to Simon‘s verbal
aggressiveness, but the court did not base its decision thereon. To the contrary,
the court explicitly stated that verbal aggression would not warrant imposing the



                                          19
stun belt on Simon. The court based its rulings at both the guilt and penalty
phases on uncontested facts related by the bailiff and sheriff‘s deputies.
       Simon argues further that the trial court abused its discretion because it did
not consider whether the stun belt was the least restrictive or obtrusive restraint
under the circumstances. Underlying Simon‘s argument is his claim that the trial
court failed to consider the potential psychological consequences of his wearing a
stun belt and the physical effects from electric shock on individuals with certain
medical conditions — considerations we discussed extensively in Mar. (See Mar,
supra, 28 Cal.4th at pp. 1225-1230.) But we expressly stated that our discussion
of these factors was included as guidance for ―future trials.‖ (Id. at p. 1225, italics
added.) Because the proceedings below were held prior to our decision in Mar,
the trial court was ―not required to foresee and discuss each of the concerns
detailed in that opinion.‖ (People v. Lomax (2010) 49 Cal.4th 530, 562.) The trial
court, therefore, cannot be said to have abused its discretion. (See Bryant, Smith
and Wheeler, supra, 60 Cal.4th at p. 391.)
       Simon‘s broader argument also founders. The record shows the trial court
was deliberate in its choice of restraint, ruling that although the stun belt was
appropriate, shackles were not. And defense counsel later conceded that the stun
belt was less obtrusive than traditional shackles. The court also explained that it
was not necessarily concerned Simon would bring in weapons or escape; rather, its
concern was that Simon‘s tendency toward violence posed an undue risk to those
in attendance. Thus, simply searching Simon before he entered the courtroom, as
defense counsel had recommended, was not enough to protect the public in the
court‘s view.
       The record further indicates the trial court attempted to make the device as
comfortable and unobtrusive as possible. After Simon complained before the guilt
phase that the stun belt was causing discomfort to his left hip area, the court

                                          20
allowed an extra cushion for Simon and inquired about having the belt
repositioned. Although Simon indicated that the pillow did not ease his
discomfort, when defense counsel objected to the belt at the start of the penalty
phase, he did not argue that Simon had actually been uncomfortable during the
guilt phase — defense counsel noted only that a pillow had to be provided to
alleviate Simon‘s discomfort. The court also directed the deputies to place the belt
on Simon ―in such a way that it is as unobtrusive as possible.‖ The court then
asked them to look into obtaining the Band-It — a stun belt worn on the leg, rather
than the waist — for the remainder of the penalty phase. This device was not
available, however, because it was being used at another facility. But the court did
ask the deputies to investigate obtaining the device, and Simon never raised the
issue again. Contrary to Simon‘s assertions, the court considered less restrictive
security measures and implemented available procedures to address his discomfort
and mitigate the stun belt‘s obtrusiveness.
       We therefore hold that the trial court‘s decision to restrain Simon with the
stun belt was not an abuse of discretion.

       B. Guilt Phase Issues

           1. Warrantless Blood Draw
       Simon argues that two blood samples taken following his arrest for the
Sterling homicide were illegally obtained. As a result, Simon contends, the DNA
evidence extracted from the second sample — evidence that connected Simon to
the Anes and Magpali murders — ought to have been suppressed. We find any
error harmless.

                  a. Background
       Simon was arrested in connection with the Sterling homicide between 3:30
and 4:00 a.m. on May 26, 1996. A few hours after Simon had been arrested and


                                            21
transported to the local police station, at approximately 7:00 a.m., investigating
officers arranged for a nurse to draw a sample of Simon‘s blood. Several hours
after the first blood draw, a nurse took a second blood sample. Hair and saliva
samples were also taken. The second blood sample was used to create a DNA
profile that was compared to DNA samples taken from the scene of the Anes and
Magpali murders. The police did not obtain a warrant for either blood sample.
       Simon moved to suppress all evidence involving the blood samples,
including the results of DNA testing, on grounds that the samples had been
obtained without a warrant and absent any exception to the warrant requirement.
In opposing the motion, the prosecution explained that at the time the samples
were taken, Simon was on probation for a 1993 attempted robbery conviction.
According to the prosecution, then, the taking was authorized by a probation
search condition — which the investigating officers knew of at the time — that
required Simon to ―[s]ubmit your person and property under your control to search
or seizure at any time of the day or night . . . with or without a warrant, or
probable cause.‖ The prosecution argued in the alternative that the first blood
sample, drawn within hours of Simon‘s arrest for the Sterling homicide, was
needed to determine Simon‘s level of intoxication and state of mind at the time of
the homicide, and that the dissipation of such evidence over time created an
exigent circumstance that excused the warrant requirement. Finally, the
prosecution maintained that Simon‘s DNA profile, which was derived from the
second blood sample, would inevitably have been discovered given that the first
sample had been obtained lawfully and police already had evidence linking Simon
to the Anes/Magpali murders at the time of Simon‘s May 26 arrest.
       Following a hearing, the trial court denied Simon‘s motion to suppress. In
the court‘s view, the probation search term ―does include the right to search the
person, . . . including even the bodily fluids, hair, [and] various other samples that

                                          22
might be taken.‖ The court therefore concluded that the blood draws, which the
parties later agreed had been conducted in a ―legally and medically prescribed
manner,‖ were lawful. Simon contends that this ruling was erroneous and that
admission of the DNA evidence derived from the warrantless blood draws violated
his rights to be free of unreasonable searches and seizures under the federal and
California constitutions.

               b. Legal Standard
       A defendant may move to suppress evidence under section 1538.5 on
grounds that a search without a warrant was unreasonable. A warrantless search is
presumptively unreasonable, and the prosecution bears the burden of
demonstrating a legal justification for the search. (People v. Redd (2010) 48
Cal.4th 691, 719.) In reviewing a trial court‘s ruling on a motion to suppress, we
defer to the trial court‘s factual findings, express or implied, where supported by
substantial evidence. (Ibid.) And in determining whether, on the facts so found,
the search was reasonable for purposes of the Fourth Amendment to the United
States Constitution, we exercise our independent judgment. (Ibid.)

               c. Analysis
       We have not addressed whether a general probation search condition, such
as the one to which Simon was subject, authorizes a warrantless, nonconsensual
blood draw. (Cf. People v. Jones (2014) 231 Cal.App.4th 1257, 1266 [postrelease
community supervision search condition, which provided that ― ‗[t]he person, and
his or her residence and possessions, shall be subject to search at any time of the
day or night, with or without a warrant . . . ,‘ ‖ encompassed warrantless blood
draws].) And we need not do so here: even if the May 26 blood draws exceeded
the scope of Simon‘s probation search condition, the trial court‘s decision not to




                                         23
suppress the DNA evidence derived from those blood draws was harmless in this
case.
        At the time of Simon‘s arrest on May 26, 1996, investigators had
significant evidence linking him to the murders of Anes and Magpali. Five
months earlier — in January — Simon had been pulled over and found in
possession of a nine-millimeter handgun. By May 7 — almost three weeks before
Simon‘s arrest for the Sterling murder — investigators had determined that this
particular gun was the source of the 10 cartridge casings found near the bodies of
Anes and Magpali. In addition, the officers who ordered the blood draw knew that
Simon had recently shot and killed another person (i.e., Sterling).
        So when Simon‘s blood was drawn, he was in custody for the Sterling
homicide, and the police had key evidence tying him to the murders of Anes and
Magpali — namely, Simon had been found in possession of the murder weapon.
Given this evidence, and the fact Simon was lawfully in custody for a separate
homicide, the trial court would have, to a near certainty, ordered a subsequent
blood sample be taken from Simon even if the initial samples had been drawn
unlawfully. That new sample would have disclosed Simon‘s DNA profile — the
very information used against him at trial. Any error in not suppressing the blood
samples was therefore harmless. (See People v. Siripongs (1988) 45 Cal.3d 548,
569 [finding any error in not suppressing warrantless blood draw ―harmless‖
because ―even had the [trial] court ruled the blood sample unlawfully drawn,
[probable cause existed so] it could have later ordered a new blood sample to be
drawn‖].)6

6       Following oral argument in this case, the United States Supreme Court held
that the search-incident-to-arrest doctrine does not justify law enforcement‘s
failure to obtain a warrant before drawing the blood of someone lawfully arrested
                                                          (footnote continued on next page)


                                         24
             2. Severance
         Simon argues that the trial court committed reversible error in denying his
motion to sever the Anes/Magpali counts from the Sterling counts. We find no
error.

                   a. Background
         Before the guilt phase, Simon moved to sever the Anes/Magpali charges
(counts 1-5)7 from the Sterling charges (counts 6-7),8 and made several arguments
for why joinder of the offenses would be ―so prejudicial that it would deny [him] a
fair trial.‖ First, Simon argued that evidence from each incident was not cross-


(footnote continued from previous page)

on suspicion of drunk driving. (See Birchfield v. North Dakota (June 23, 2016,
No. 14-1468) ___U.S.___ [2016 WL 3434398].) Warrantless blood draws, in
other words, cannot be justified as a search incident to arrest. This holding does
not change the result here because, we conclude, any error in not suppressing the
blood samples was harmless. And we need not consider the extent, if any, to
which a search incident to arrest differs from a probation search.
7       Count 1 charged Simon with the murder of Anes. It also alleged that he
used a firearm during the murder and that the murder was committed during the
commission of a robbery. Anes‘s missing jewelry and speaker were the basis for
the robbery allegation. Count 2 charged Simon with the murder of Magpali. It
also alleged that he used a firearm during the murder and that the murder was
committed during the commission of a robbery, kidnapping, and rape. Magpali‘s
missing jewelry was the basis for the robbery allegation. Count 3 charged Simon
with the rape of Magpali. It also alleged that he used a deadly weapon during the
rape and that the rape was committed during the course of a kidnapping. Count 4
charged Simon with kidnapping Magpali. It also alleged that he used a firearm
during the commission of the kidnapping. Count 5 charged Simon with
possession of a firearm — on or about December 3, 1995 — after previously being
convicted of attempted robbery.
8      Count 6 charged Simon with the murder of Sterling. It also alleged that he
used a firearm during the murder. Count 7 charged Simon with possession of a
firearm — on or about May 25, 1996 — after previously being convicted of
attempted robbery.



                                          25
admissible because the events were unrelated. Second, he contended that evidence
from both incidents was highly inflammatory. Simon noted that the Anes/Magpali
incident involved the killing of two teenagers, one of whom was sexually
assaulted, and the Sterling shooting appeared to be gang related. Third, Simon
claimed that the evidence supporting the Sterling charges was relatively weak
compared to the ―strong‖ Anes/Magpali charges. And fourth, Simon argued that
because the Sterling charges did not independently give rise to special
circumstances warranting the death penalty, their joinder with the Anes/Magpali
capital offenses would be highly prejudicial.
       Following a hearing, the trial court denied Simon‘s motion to sever. The
court offered the following explanation: ―it does appear to me that there is some
potential prejudice. However, I don‘t think that that prejudice outweighs the
benefits. And so without saying more, I‘m going to deny the motion.‖

                b. Legal Standard
       Section 954, in relevant part, permits the joinder of ―two or more different
offenses of the same class of crimes or offenses.‖ Joinder is ordinarily favored
because it avoids the increased expenditures of funds and judicial resources that
may result from separate trials. (See Alcala v. Superior Court (2008) 43 Cal.4th
1205, 1220 (Alcala).) Joinder, therefore, ―is the course of action preferred by the
law.‖ (Ibid.) Nonetheless, a trial court has discretion to sever properly joined
charges in the interest of justice and for good cause. (§ 954; see People v.
Merriman (2014) 60 Cal.4th 1, 37.)
       Our review proceeds in two steps. First, we examine whether, in light of
the information available at the time, the trial court abused its discretion in
denying the severance motion prior to the guilt phase. (People v. Mendoza (2000)
24 Cal.4th 130, 161 (Mendoza).) Where, as here, the statutory requirements for



                                          26
joinder are met,9 a defendant must make a ―clear showing of prejudice‖ to
establish that the trial court abused its discretion in denying the motion. (Id. at
p. 160.) A defendant seeking severance of properly joined charged offenses must
make a stronger showing of potential prejudice than would be necessary to
exclude evidence of other crimes in a severed trial. (People v. Soper (2009) 45
Cal.4th 759, 774.)
       Second, even if the trial court‘s ruling was proper as a matter of state law,
we will reverse the judgment if the defendant shows that joinder of the charges
actually resulted in ―gross unfairness‖ amounting to a denial of due process during
the guilt phase. (Mendoza, supra, 24 Cal.4th at p. 162.)

                c. Analysis

                     i. Abuse of Discretion
       We analyze severance questions by considering a case‘s specific facts.
Whether a trial court abused its discretion in denying severance depends, thus, on
the particular circumstances of each case. (People v. Sandoval (1992) 4 Cal.4th
155, 172.) The factors we consider are as follows: (1) whether the evidence
relating to the various charges would be cross-admissible in separate trials,
(2) whether any of the charges are unusually likely to inflame the jury against the
defendant, (3) whether a weak case has been joined with a strong case or with
another weak case, and (4) whether one of the charges is a capital offense or the
joinder of the charges converts the matter into a capital case. (People v. Elliott
(2012) 53 Cal.4th 535, 551.)

9      Because murder, rape, robbery, and kidnapping are all assaultive crimes
against the person, the Anes/Magpali incident and the Sterling incident both
involved ―offenses of the same class of crimes,‖ thus satisfying the statutory
requirements for joinder under section 954. (See People v. Ramirez (2006) 39
Cal.4th 398, 438-439; People v. Rhoden (1972) 6 Cal.3d 519, 524-525.)



                                          27
       We find that Simon has failed to establish a ―clear showing‖ of potential
prejudice under these factors. (Mendoza, supra, 24 Cal.4th at p. 160.) So he
cannot show the trial court abused its discretion in denying his motion to sever.

                        (a) Cross-admissibility
       The prosecution conceded below that evidence for the separate incidents
would not be cross-admissible in separate trials. Although cross-admissibility of
evidence is often an independently sufficient condition justifying a trial court‘s
denial of severance, it is not a necessary one. (See Alcala, supra, 43 Cal.4th at
pp. 1221-1222, 1227.) In the absence of cross-admissibility, we turn to the
remaining factors to assess whether the trial court abused its discretion. (See
People v. McKinnon (2011) 52 Cal.4th 610, 630-631 (McKinnon).)

                        (b) Particularly Inflammatory Charges
       Simon has not made a clear showing of potential prejudice under this
factor. Comparing the two sets of charges, it appears plain that the Anes/Magpali
murders were more likely to inflame the jury‘s passions. The victims, though no
longer minors, were still teenagers. One of them was shot eight times, while the
other was kidnapped from the scene and raped before being shot twice in the head.
The facts of the gang-related Sterling murder, though far from innocuous, were
unlikely to evoke the same emotions as the Anes/Magpali crimes.
       Indeed, courts have recognized that sex crimes can be quite inflammatory,
especially when they involve young victims. (See Williams v. Superior Court
(1984) 36 Cal.3d 441, 452 (Williams) [―It is true that the present case does not
involve the ‗highly inflammatory‘ issue of sex crimes against children‖],
superseded by statute on another ground as stated in Alcala, supra, 43 Cal.4th at
p. 1229, fn. 19.) In Coleman v. Superior Court (1981) 116 Cal.App.3d 129
(Coleman), a Court of Appeal case on which the parties rely, the defendant was



                                         28
charged with sex crimes against an 11-year-old child and a 13-year old child. The
appellate court deemed it prejudicial to join these charges with a more serious
murder charge, in part, because sexual crimes against children are ―highly
inflammatory‖ and might have ―a very serious prejudicial effect upon the jury.‖
(Id. at p. 139.)
       But the animating concern underlying this factor is not merely whether
evidence from one offense is repulsive, because repulsion alone does not
necessarily engender undue prejudice. (See People v. Capistrano (2014) 59
Cal.4th 830, 850 (Capistrano).) Rather, the issue is ― ‗ ―whether strong evidence
of a lesser but inflammatory crime might be used to bolster a weak prosecution
case‖ on another crime.‘ ‖ (Ibid.) In Capistrano, for instance, we held that
joinder of a brutal rape incident with a separate robbery did not unduly inflame the
jury against the defendant. (Ibid.) We so held, in part, because the evidence of the
separate robbery was far from weak — the defendant had admitted his
participation in the robbery. (Ibid.) We therefore found no abuse of discretion
because there was little risk that details of the rape would have bolstered an
otherwise weak robbery charge.
       Coleman illustrates the flip side of this point. There, the Court of Appeal
explained that the evidence supporting the more serious murder charge was
relatively weak. (See Coleman, supra, 116 Cal.App.3d at p. 138.) Indeed, ―the
only evidence connecting defendant to the [murder] consists of the palm and
thumb prints identified at the scene of the crime.‖ (Ibid.) ―If a juror has a
reasonable and appropriate doubt about the identity of the murderer,‖ continued
the court, ―the juror may find it difficult to maintain that doubt in the face of direct
evidence concerning repulsive crimes against minors committed by [defendant].‖
(Ibid.) As a result, the Court of Appeal found the trial court had abused its
discretion in denying the defendant‘s motion to sever. (Id. at pp. 139-140.)

                                          29
       The situation here is similar to that in Capistrano. There is no reason to
presume that the potentially inflammatory evidence of sex crimes from the
Anes/Magpali incident was likely to prejudice Simon regarding the Sterling
charges. Without question, the details of the Anes/Magpali incident are
disturbing. But any effect this evidence would have had on the jury as a result of
joinder was not unduly prejudicial given that the Sterling murder was no more
serious an offense and was also supported by strong evidence. Unlike in Coleman,
where joinder of inflammatory evidence was used to bolster a more serious — but
weaker — case, the Anes/Magpali charges here independently gave rise to the
death penalty by involving several special circumstance allegations. The
Anes/Magpali murders, thus, cannot be characterized as the ―lesser‖ crimes.
(Capistrano, supra, 59 Cal.4th at p. 850.) Moreover, unlike in Coleman, where
the evidence supporting the joined murder charge was relatively weak, here — for
reasons discussed below — the Sterling homicide was supported by strong
evidence.
       There is little chance, likewise, that joinder of the Sterling matter
prejudiced Simon with respect to the more inflammatory Anes/Magpali murders.
True, we have recognized that gang evidence, even if relevant, can be ―highly
inflammatory.‖ (McKinnon, supra, 52 Cal.4th at p. 655; see also Williams, supra,
36 Cal.3d at p. 453 [explaining that ―evidence of gang membership . . . might
indeed have a very prejudicial, if not inflammatory effect on the jury in a joint
trial‖].) But Simon does not explain why introducing evidence of a gang rivalry
was sufficiently inflammatory that denial of severance constituted an abuse of
discretion. And our case law is to the contrary.
       In McKinnon, we held that the proffered gang evidence ―was not unduly
inflammatory.‖ (McKinnon, supra, 52 Cal.4th at p. 631.) The defendant there
was charged with two unrelated murders. In the first, the defendant walked up to a

                                          30
stranger, placed a gun against that person‘s head, and shot him ―for no apparent
reason.‖ (Id. at p. 620.) In the second, the defendant was engaged in an argument
with a rival gang member before fatally shooting him. (Ibid.) In addition to
evidence of gang name, membership, and rivalry, the prosecution submitted
evidence that the defendant had shot the latter victim in retaliation for a separate
gang-related murder. (Id. at pp. 624-625.)
       On appeal, the defendant argued that joinder of the charges was prejudicial
because gang evidence from the second incident was unduly inflammatory.
(McKinnon, supra, 52 Cal.4th at p. 631.) We rejected that argument for three
reasons: (1) the prosecution did not present any other evidence of gang violence
aside from evidence that the murder was related to a prior gang-related killing, (2)
any inflammatory effect of the gang evidence ―paled in comparison‖ to the
prejudicial impact of the ―absolute senselessness‖ of the first incident, and (3) any
inflammatory effect was not prejudicial because both cases were supported by
strong evidence. (Ibid.)
       So too here. In this case, as in McKinnon, the gang evidence from one
incident (i.e., the Sterling murder) was not likely to alter the outcome of the other
(i.e., the Anes/Magpali murders). In fact, there was even less gang evidence
introduced here than in McKinnon. In that case, in addition to gang name,
membership, and rivalry, evidence was introduced of a separate gang-related
killing. (McKinnon, supra, 52 Cal.4th at p. 631.) The only gang evidence
admitted here, in contrast, was limited testimony that Sterling‘s gang affiliation
served as the impetus for Simon‘s rage. Furthermore, any inflammatory effect of
the limited gang evidence here ―paled in comparison‖ to the prejudicial effect of
the murder, kidnapping, and rape charges in the Anes/Magpali incident. (Ibid.)
This point is even clearer here than was the case in McKinnon, where the



                                          31
prejudicial impact of the other crime was its ―senselessness‖ (ibid.); here, the
Anes/Magpali charges were both senseless and gruesome.
       Unlike in Williams, moreover, where gang affiliation was used to implicate
the defendant as the perpetrator, the gang evidence here was neither relied on nor
was it necessary to link Simon to the strongly supported Anes/Magpali charges.
(Cf. Williams, supra, 36 Cal.3d at p. 453.) Not only was there DNA evidence
linking Simon to the Anes/Magpali murders, but Simon was also found in
possession of the gun used to kill both victims. What made the gang evidence in
Williams prejudicial — to wit, that a jury not otherwise convinced beyond a
reasonable doubt of the defendant‘s involvement might use gang evidence to tip
the scales and convict — is therefore not a concern in the present case. (See also
Capistrano, supra, 59 Cal.4th at p. 853 [joinder of attempted murder charge did
not deprive defendant of a fair trial where the only evidence of defendant‘s gang
membership was the victim‘s testimony that ―he believed defendant was a gang
member‖]; People v. Sandoval, supra, 4 Cal.4th at p. 173 [defendant failed to
show requisite prejudice from joinder of other murder charges because any
―inflammatory effect of defendant‘s gang membership as to the [other] case was
neutralized by the fact that the victims were also gang members‖].)
       Only when a defendant has made a clear showing of potential prejudice
may we find an abuse of discretion in this context. (See Mendoza, supra, 24
Cal.4th at p. 160.) There was none here. Simon has not shown the potentially
inflammatory evidence from the Anes/Magpali incident would have altered the
outcome of the Sterling charges, or vice versa.

                        (c) Weak Case Joined to Strong Case
       Simon fails to establish a clear showing of potential prejudice under this
factor because neither the Anes/Magpali incident nor the Sterling incident was a



                                         32
weak case that needed joinder to bolster the likelihood of conviction. (See People
v. Balderas (1985) 41 Cal.3d 144, 173-174.)
       The core prejudice concern arising in connection with this issue is that
jurors may aggregate evidence and convict on weak charges that might not merit
conviction in separate trials. (Williams, supra, 36 Cal.3d at p. 453.) This concern
is especially pronounced when evidence of a lesser but inflammatory incident
might be used to bolster a weak prosecution case as to another incident.
(Capistrano, supra, 59 Cal.4th at p. 850.) But even where evidence from one
incident could be considered ―inflammatory‖ as the term is understood in our case
law (see id. at pp. 850-851), we will find no abuse of discretion if the evidence of
guilt for each of the joined incidents is sufficiently compelling (see, e.g.,
McKinnon, supra, 52 Cal.4th at p. 631 [―This was not a matter in which a weak
case was joined with a strong case, or with another weak case, thereby ‗causing a
spillover effect that might have unfairly altered the outcome of the trial.‘
[Citation.] Strong evidence supported both cases‖]).
       Such is the case here. Both the Anes/Magpali and Sterling charges were
supported by strong evidence that would likely have merited conviction in
separate trials. As to the Anes/Magpali incident, Simon conceded below that
strong evidence supported these charges. The most damaging piece of evidence
was that Simon‘s DNA profile matched the DNA profile of semen evidence
collected from Magpali‘s body and clothing. Such evidence, we have held many
times, indicates a strong case. (See, e.g., People v. Scott (2015) 61 Cal.4th 363,
396; People v. Hartsch (2010) 49 Cal.4th 472, 494; People v. Geier (2007) 41
Cal.4th 555, 576.) In addition, Simon was found in possession of the gun used to
kill Anes and Magpali during a traffic stop less than seven weeks after the
murders. Simon also exhibited a guilty mind following that stop in trying to
coerce Meeks, Simon‘s front seat passenger, to claim ownership of the firearm.

                                          33
       As to the Sterling incident, Simon concedes there was ―strong proof‖ he
shot and killed Sterling. Nonetheless, Simon argued below that the Sterling
charges were ―weak‖ because evidence purportedly suggested the killing was
justified as self-defense or could be mitigated to manslaughter by imperfect self-
defense. Although the availability of defense theories may be relevant under this
factor, there was very little to support the defenses Simon offered in this case.
There was no meaningful evidence either that Sterling was armed or that he was
the aggressor. Quite the opposite. There was substantial evidence in the record
that Simon was the aggressor. In light of the admittedly strong proof that Simon
shot and killed Sterling, combined with testimony that Simon was the aggressor,
we find these charges supported by strong evidence. (See People v. Johnson
(2015) 61 Cal.4th 734, 752 [―Although defendant presented an alibi defense to
[one of the murders], a mere imbalance in the evidence between the joined crimes
does not signal a risk that one charge will be prejudicially bolstered‖].)
       Simon‘s possession of the gun used to kill Anes and Magpali, DNA
evidence linking Simon to Magpali‘s rape, and uncontroverted evidence that
Simon — after having been the aggressor — shot Sterling indicate that both
incidents were supported by strong evidence. Consequently, we find no clear
showing of potential prejudice under this factor.

                        (d) Capital Offense
       Although joinder resulted in the Sterling murder being charged as a capital
offense, Simon has not clearly shown potential prejudice under this factor because
joining the charges neither converted the entire matter into a capital case nor
bolstered the possibility of Simon receiving a death sentence.
       Denials of severance involving capital charges generally require a ―higher
degree of scrutiny and care.‖ (Williams, supra, 36 Cal.3d at p. 454.) Even greater



                                          34
scrutiny is required, we have said, when the joinder of separate murder charges
gives rise to the special circumstance allegation of multiple murder. (Ibid.) But
nothing in our prior cases suggests that severance is required whenever capital
charges are involved. (People v. Balderas, supra, 41 Cal.3d at p. 171.) Further,
where one of two joined murder incidents would independently give rise to a
capital charge, there is less risk of prejudice. (See People v. Johnson, supra, 61
Cal.4th at p. 752 [explaining that ―joinder of the two killings did not convert the
matter into a capital offense because [one of the killings] included two kidnapping
and robbery special-circumstance allegations and thus made defendant eligible for
the death penalty‖]; People v. Ruiz (1988) 44 Cal.3d 589, 607 [―unlike the
situation in Williams, joinder of the Tanya murder charge did not convert the case
into a capital one, for the properly joined Pauline/Tony charges alone satisfied the
multiple-murder special-circumstance statute‖].)
       Here, joining the charges did not convert the matter into a capital case, and
the separate offenses were supported by strong evidence. Without joinder, Simon
would still have faced the death penalty based on the special circumstance
allegations that the murder of Anes was committed during the commission of a
robbery and the murder of Magpali was committed during the commission of a
robbery, kidnapping, and rape. (Former § 190.2, subd. (a)(17)(i)-(iii), now
§ 190.2, subd. (a)(17)(A)-(C).) Moreover, the multiple-murder special-
circumstance allegation was available to the prosecution, even if the Sterling
murder had not been joined, because the Anes/Magpali incident involved two
murders. (See People v. Ruiz, supra, 44 Cal.3d at p. 607.) As a result, joining the
charges did not convert the matter into a capital case.
       Furthermore, there was strong evidence supporting each incident. So
neither case posed an undue risk of unjustified conviction. (See People v. Myles
(2012) 53 Cal.4th 1181, 1202 [―In the present case, the evidence supporting each

                                         35
of the murder cases was not weak and neither case posed the risk of an
unjustifiable conviction‖]; People v. Thomas (2012) 53 Cal.4th 771, 800 [finding
―no significant risk of an unjustified conviction on any of the murder charges
because . . . evidence in both cases was strong‖].) Because joinder did not bolster
the possibility of conviction, joinder also did not bolster the possibility of the
death penalty being imposed as punishment. We find no clear showing of
potential prejudice under this factor.

                    ii. Gross Unfairness
       Even if we find that the trial court did not abuse its discretion in denying
severance pretrial, we must also determine ―whether events after the court‘s ruling
demonstrate that joinder actually resulted in ‗gross unfairness‘ amounting to a
denial of defendant‘s constitutional right to fair trial or due process of law.‖
(People v. Merriman, supra, 60 Cal.4th at p. 46.) We find no violation of due
process.
       In determining whether joinder resulted in gross unfairness, we have
observed that a judgment will be reversed on this ground only if it is reasonably
probable that the jury was influenced by the joinder in its verdict of guilt. (People
v. Merriman, supra, 60 Cal.4th at p. 49.) But, as noted above, both the
Anes/Magpali charges and the Sterling charges were supported by strong evidence
warranting conviction had the incidents been tried separately. What is more, the
fact that the jury found Simon guilty of first degree murder in the killings of Anes
and Magpali, but only second degree murder of Sterling, ―strongly suggests that
the jury was capable of weighing the evidence and differentiating among [the]
various charges.‖ (People v. Lucas (2014) 60 Cal.4th 153, 217, disapproved on
another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; see
also People v. Jones (2013) 57 Cal.4th 899, 927 [―Where the jury returns a guilty



                                           36
verdict of a lesser crime, or, as here, fails to convict at all on some charges, we are
confident the jury was capable of, and did, differentiate among defendant‘s
crimes‖]; People v. Ruiz, supra, 44 Cal.3d at p. 607 [―the fact that the jury found
defendant guilty of only second degree murder of Tanya strongly suggests that the
jury was capable of differentiating between defendant‘s various murders‖].)
       Simon argues nonetheless that joinder resulted in gross unfairness because
the trial court failed to adequately caution jurors against considering evidence
from the Anes/Magpali incident when rendering a verdict on the Sterling counts,
and vice versa. But the court instructed the jury, pursuant to CALJIC No. 17.02,
as follows: ―Each count charges a distinct crime. You must decide each Count
separately. The defendant may be found guilty or not guilty of any or all of the
crimes charged. Your finding as to each Count must be stated in a separate
verdict.‖ Defense counsel also reminded the jury of its duty to consider the facts
separately in his closing argument. Absent some showing to the contrary — a
showing Simon has not provided — we presume the jury followed these
instructions. (See People v. Merriman, supra, 60 Cal.4th at pp. 48-49 [―The
record shows moreover that the jury was instructed on the elements of each of the
charged crimes, told that ‗each count charges a distinct crime,‘ and directed to
‗decide each count separately.‘ (CALJIC No. 17.02.) Absent some showing to
the contrary, we presume the jury followed the court‘s instructions. [Citation.]
No such showing was made here‖].)
       Simon‘s reliance on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073
(Bean) is unavailing. In that case, the Ninth Circuit held that, despite the state trial
court‘s having instructed the jury pursuant to CALJIC No. 17.02, the court‘s
refusal to sever two sets of charges deprived the defendant of a fair trial. (Id. at
p. 1083.) Bean is distinguishable on several grounds. First, the prosecutor during
closing argument there ―repeatedly urged the jury to consider evidence of Bean‘s

                                          37
‗modus operandi‘ to determine whether he was guilty of both [sets of] crimes.‖
(Ibid.) Although the prosecutor here, in a couple of instances during closing
argument, appeared to cross-reference the two incidents, these isolated remarks
over the course of 80 pages of transcript did not approach the repeated conflation
of events found in Bean. Second, unlike in Bean, there is no ―substantial
disparity‖ (id. at p. 1085) between the strength of the two cases here such that the
evidence from one risked strengthening an ―otherwise weak case‖ (id. at p. 1083).
As explained above, the evidence supporting both sets of charges was quite strong
here. Simon was arrested with the Anes/Magpali murder weapon, and Simon‘s
DNA profile matched that of semen evidence collected from Magpali.
Uncontroverted evidence also showed that Simon — after having been the
aggressor — shot Sterling in the chest. Third, unlike in Bean, there is ―affirmative
evidence of the jury‘s ability to assess the [two incidents] separately.‖ (Id. at
p. 1086.) The jury here found Simon guilty of first degree murder in the killings
of Anes and Magpali, but only second degree murder of Sterling. We therefore
have no compelling reason to doubt that the jury succeeded in sufficiently
compartmentalizing the evidence. (Id. at p. 1085.)
         What we conclude in light of these factors is that Simon has not shown
joinder to have resulted in gross unfairness such that he was deprived of a fair
trial.

             3. Failure to Instruct on Imperfect Self-Defense
         Simon argues that the trial court erred in failing to instruct the jury on
imperfect self-defense with respect to the Sterling homicide. We see no error.

                 a. Background
         In arguing before the trial court for jury instructions on self-defense,
defense counsel cited testimony that Sterling had been convicted of a prior assault,



                                            38
Haynes‘s statements that she observed an argument outside between Sterling and
Simon, testimony by Haynes and Gentry that they heard three gunshots fired
(implying the existence of another gun), testimony by Gentry that Sterling was
bigger than Simon, and testimony that the fatal shot was fired at close range.
From this evidence, defense counsel asserted, ―it appears from the record at least a
reasonable inference could be drawn that Mr. Simon and Mr. Sterling are arguing
with each other.‖
       The prosecutor conceded there was evidence that Sterling and Simon had
been arguing, but that any potential third shot fired most likely came from the
same gun. The prosecutor continued that the defense failed to make a case for
imperfect self-defense ―because there‘s no evidence whatsoever of any fear or
honest belief on [Simon‘s] part here,‖ and ―[b]ecause we have no idea whatsoever
of any aggressive behavior by Mr. Sterling toward Mr. Simon.‖
       The trial court denied Simon‘s request for a jury instruction on imperfect
self-defense, stating ―No, I don‘t see it, to be honest with you. I don‘t think
there‘s a factual basis for this . . . .‖ The instructions jurors did receive gave them
the option to find Simon guilty of the lesser included offense of voluntary
manslaughter under a heat of passion or sudden quarrel theory, or to acquit Simon
based on a theory of complete self-defense. Simon now challenges the trial
court‘s refusal to instruct the jury on imperfect self-defense, arguing that a jury
could have concluded that he had an actual but unreasonable belief that he needed
to defend himself against imminent harm from Sterling.

                b. Legal Standard
       An instance of imperfect self-defense occurs when a defendant acts in the
actual but unreasonable belief that he or she is in imminent danger of great bodily
injury or death. (People v. Duff (2014) 58 Cal.4th 527, 561.) Imperfect self-



                                          39
defense differs from complete self-defense, which requires not only an honest but
also a reasonable belief of the need to defend oneself. (People v. Elmore (2014)
59 Cal.4th 121, 133-134.) It is well established that imperfect self-defense is not
an affirmative defense. (See People v. Barton (1995) 12 Cal.4th 186, 199-201
(Barton).) It is instead a shorthand way of describing one form of voluntary
manslaughter. (Id. at p. 200.) Because imperfect self-defense reduces an
intentional, unlawful killing from murder to voluntary manslaughter by negating
the element of malice, this form of voluntary manslaughter is considered a lesser
and necessarily included offense of murder. (People v. Breverman (1998) 19
Cal.4th 142, 154.)
       A trial court has a sua sponte duty to instruct the jury on a lesser included
uncharged offense if there is substantial evidence that would absolve the defendant
from guilt of the greater, but not the lesser, offense. (People v. Waidla (2000) 22
Cal.4th 690, 733 (Waidla).) Substantial evidence is evidence from which a jury
could conclude beyond a reasonable doubt that the lesser offense was committed.
(People v. Manriquez (2005) 37 Cal.4th 547, 587-588 (Manriquez); see also
Barton, supra, 12 Cal.4th at p. 201, fn. 8 [―Substantial evidence is evidence
sufficient to ‗deserve consideration by the jury,‘ that is, evidence that a reasonable
jury could find persuasive‘ ‖].) Speculative, minimal, or insubstantial evidence is
insufficient to require an instruction on a lesser included offense. (Mendoza,
supra, 24 Cal.4th at p. 174; see also Barton, at p. 201 [―the need to [instruct sua
sponte on imperfect self-defense] arises only when there is substantial evidence
that the defendant killed in unreasonable self-defense, not when the evidence is
‗minimal and insubstantial‘ ‖ (fn. omitted)].)
       We review de novo a trial court‘s decision not to give an imperfect self-
defense instruction. (See Manriquez, supra, 37 Cal.4th at p. 581; see also Waidla,
supra, 22 Cal.4th at p. 733 [―An appellate court applies the independent or de

                                          40
novo standard of review to the failure by a trial court to instruct on an uncharged
offense that was assertedly lesser than, and included, in a charged offense‖].)

               c. Analysis
       According to Simon, ―a theory of unreasonable self-defense was supported
by the evidence since jurors may have concluded that [he] actually believed in the
need for self-defense, but that his belief was not objectively reasonable.‖ In
support of this claim, Simon emphasizes how, after his initial showing of
aggressive behavior, he apologized, shook Sterling‘s hand, and hugged him before
leaving the apartment.
       We disagree. The facts, though hardly pellucid, suggest that Simon — not
Sterling — was the aggressor in their confrontation. It was Simon who began
cursing at Sterling after the latter identified himself as a member of IE, an
apparent rival of Simon‘s gang. Despite Sterling lifting up his shirt to prove that
he was unarmed, Simon asked for someone to retrieve the gun Simon had brought
to the apartment. Simon asserts he was a changed man once he returned from the
bathroom, claiming that he had ―calmed down‖ at that point and that he had
apologized to Sterling as he shook his hand. Yet moments later, Simon walked
over to Williams and elbowed him in the face. When Gentry sought to intervene,
Simon told her to ―shut up,‖ threatening to shoot her too. Once outside, Simon
and Sterling began to argue. And in an interview with police, Jamal Brown said
that Simon ―totally shot [Sterling] cold blooded.‖ Jamal remarked that Simon had
―shot [Sterling,] what for I don‘t know.‖ Jamal also insisted that he had heard
only two gunshots.
       Simon, meanwhile, does not point to any evidence indicating that Sterling
was the aggressor. Nor does Simon present evidence that he ever perceived that
Sterling –– who was unarmed –– posed a risk of imminent peril. Given the



                                          41
paucity of support for Simon‘s position, our decision in Manriquez is also
instructive. (Manriquez, supra, 37 Cal.4th at pp. 580-583.) There, we rejected the
defendant‘s claim that the trial court improperly refused his request for a jury
instruction on imperfect self-defense, noting that the record was ―devoid of
evidence‖ supporting the defendant‘s subjective fear. (Id. at p. 581.) The
evidence there included how the defendant had allegedly told officers he ― ‗had
heard some threats‘ ‖ that the victim wanted to kill him. (Id. at p. 582.) A witness
to the murder testified that the defendant appeared angry when he left the room to
meet the victim, that the victim was unarmed, and that the victim asked the
defendant, ― ‗What is your problem with me?‘ ‖ (Id. at pp. 561-562.) The
defendant did not testify at trial. (Id. at pp. 567-568.)
       The record here is equally devoid of evidence tending to show Simon‘s
subjective fear of Sterling. Simon, like the defendant in Manriquez, initiated any
aggressive interactions — here, by cursing at Sterling for being a member of a
rival gang. Similarly, the record indicates that Sterling was unarmed. Simon also
did not testify, and there is no evidence he ever told anyone that he had acted out
of fear.
       To the extent Simon argues that the trial court‘s decision to give an
instruction on complete self-defense required it to also instruct on imperfect self-
defense, we find no error. Because we conclude there was not substantial
evidence supporting Simon‘s actual belief that he was in imminent danger of great
bodily injury or death, the trial court would not have erred had it likewise refused
to instruct on complete self-defense. (See People v. Rodriguez (1997) 53
Cal.App.4th 1250, 1270 [―Further, just because the court permitted instructions on
perfect self-defense does not mean that substantial evidence supported the giving
of an imperfect self-defense instruction. To the contrary, it would not have been
error for the trial court to have denied perfect self-defense instructions with regard

                                          42
to Contreras because no substantial evidence supported such a defense‖]; see also
People v. De Leon (1992) 10 Cal.App.4th 815, 824 [―It is hard to fault appellant‘s
logic. If there was substantial evidence of his ‗honest belief‘ for self-defense
purposes, there was substantial evidence of his ‗honest belief‘ for imperfect self-
defense purposes. [¶] But we are satisfied, and so hold, there was not substantial
evidence of ‗honest belief‘ for either self-defense or imperfect self-defense‖].)
       We conclude the trial court did not err in refusing Simon‘s request to
instruct on imperfect self-defense.

       C. Penalty Phase Issues

             1. Victim Impact Evidence
       Simon argues that the trial court committed reversible error in admitting
victim impact evidence during the penalty phase of his trial. We are not
convinced.

                a. Background
       Prior to the penalty phase, Simon moved to exclude victim impact evidence
on multiple grounds. First, Simon called for exclusion of testimony regarding the
appropriate punishment for or characteristics of Simon. The trial court agreed.
Second, Simon requested to limit victim impact testimony to a single surviving
family member. The trial court denied the motion, noting that ―California has
never placed‖ such a limitation. Third, Simon sought to exclude emotional,
tearful, or angry testimony, explaining that some testimony had been very
emotional in the first penalty trial. The trial court agreed that testimony may not
be so emotional that it becomes unduly prejudicial. The court reasoned, however,
that it could not ex ante exclude or even distinguish what qualifies as ―overly
emotional or inflammatory.‖ The court therefore ruled that this issue was
something to monitor as the proceedings developed.


                                         43
       Fourth, Simon moved to exclude any testimony or evidence regarding
awards or academic achievements of the victims — a request the trial court
promptly denied. Fifth, Simon asked to exclude artwork by Magpali. The trial
court denied the motion but stipulated that such evidence not be ―overly time
consuming or overly prejudicial.‖ Similarly, Simon moved to exclude ―testimony
regarding future plans‖ of the victims. The trial court ruled such evidence
admissible, reiterating again that such testimony may not be overly time
consuming or specific.
       Sixth, Simon sought to exclude photographs and testimony going back to
the victims‘ births, suggesting that any such evidence be limited to ―a period of
time closer to the time of death.‖ The trial court denied Simon‘s objections to
both the baby photographs and the testimony. And seventh, Simon requested that
all victim impact evidence be excluded because such testimony is so broad that it
violates the Eighth Amendment to the United States Constitution and article 1,
section 17 of the California Constitution. The trial court denied the motion while
repeating that there would be limitations. The court recognized that the critical
question is whether victim impact evidence becomes ―overly time consuming,
overly repetitious, things of that nature,‖ which could not be determined at a
pretrial hearing.

                b. Evidence Presented

                    i. Sherry Magpali
       Two victim impact witnesses testified regarding Sherry Magpali: her sister
Jasmine and brother Jeffrey.
       At the time of her death, Sherry was a 19-year-old student at a local
community college, having graduated magna cum laude from high school the year
before. Jasmine and Jeffrey described their sister as a creative, fun person with a



                                         44
lot of friends. Sherry enjoyed singing, playing dress up, and taking pictures with
her siblings. She also hoped to become an artist and was interested in graphics,
Japanese animation, and poetry. Some of Sherry‘s artwork was entered into
evidence, along with photographs of Sherry as a baby, young child, and young
adult.
         The night of the incident, Sherry asked Jasmine and Jeffrey to go with her
to the party, but both declined. The next day, her siblings were at a church retreat
when they were pulled aside and told they had to be taken home. Although they
were not told what had happened, Jasmine said she already knew something was
wrong. Jasmine described getting home, hearing people screaming, seeing her
mother lying on the floor after fainting, and no one telling her what was going on.
Jasmine did not learn about how her sister was murdered until she read the
newspaper. Jasmine described being angry when she heard about the way her
sister was killed. And as a result of her sister‘s death, Jasmine said she became
introverted and was no longer a trusting person. She said her brother Jeffrey
became the same way.
         Jeffrey testified that at first he did not believe Sherry had been murdered
because she was such a strong person. He said it hurt knowing how his sister died
and that it would have been different if Sherry had died some other way, like in a
car accident or from a medical condition. He said it was also difficult to attend the
funeral because that was when he realized his sister was really gone.
         Jasmine described the impact of Sherry‘s death on their mother. For years
after the incident, Jasmine woke up to her mother crying in the middle of the
night. She also explained that the family did not talk to each other much anymore;
holidays, she said, felt empty.




                                           45
                      ii. Vincent Anes
       Regarding Vincent Anes, three victim impact witnesses testified: his
mother Priscilla Severson, his stepfather Timothy Severson, and his brother Dino
Anes. Jurors were shown approximately 11 photographs of Vincent, ranging from
age seven to death.
       Priscilla described Vincent as a good, sweet, and thoughtful boy who was
never in trouble. Vincent was a playful, but obedient, son who always did his
homework and helped his younger brother with math. Vincent had a close
connection with his stepfather, who taught Vincent how to work on cars. At the
time of his death, Vincent was a senior in high school and a good student. Vincent
planned on joining the military, then going to college to become a dentist.
       The night of the incident, Priscilla was awakened by Vincent‘s friends,
asking if he was home. She did not understand what Vincent‘s friends were
saying, though, and thought Vincent might have just been in a car accident. Dino
was also awakened and recalled people panicking and screaming. Priscilla called
her parents, who lived nearby, and they all drove to the park. On the way, Dino
prayed that his brother was still alive.
       Upon arrival, Priscilla and Dino saw Vincent‘s car but were still unaware
that Vincent was dead. An ambulance arrived too, but no one seemed to be
helping the person in the car — this was the first indication to Dino that his
brother was dead. It was only after Priscilla‘s father told her the person in the
vehicle was Vincent that she knew her son had died.
       Timothy testified that he blamed himself for Vincent‘s death. Timothy,
who served in the military and was stationed in Nevada at the time, described how
it was difficult to cope with knowing he had left his family in a place where
Vincent was murdered. The night of the incident, Timothy was awakened by a
coworker saying that he had a phone call. Because Priscilla was so distraught,


                                           46
though, she was unable to speak, so her brother had to explain what had occurred.
Timothy processed paperwork through the Red Cross and got permission from his
superiors to leave, but he was only able to stay with his family in California for a
few weeks. It was difficult to leave so quickly, he told the jury.
       Priscilla explained that home life was happy before Vincent‘s death. After
the incident, though, she became very fearful and strict toward Dino. Afraid that
something similar to what happened to Vincent might happen to her other son,
Priscilla would turn the ringer of the house phone off on the weekends so that
Dino‘s friends could not reach him. Although she stopped doing this at some
point because it was not fair to Dino, she still lived in fear whenever Dino left the
house. Priscilla also explained that she was bothered by the way Vincent died and
that she still had nightmares.
       Vincent‘s death had a significant impact on Dino, who said he became a
loner. Dino testified that it was difficult to accept his brother‘s death because of
how he was killed; had Vincent died because of a car accident or a medical
condition, it would have been different. Dino could not accept how his brother
was ―brutally murdered‖ and ―humiliated.‖ Dino went on to explain that when he
could not sleep at night, he thought about his brother. Dino said he did not pray
anymore because God did not answer his prayers the night Vincent was murdered.
       The family moved away from the area four months after the incident, but
for two years Priscilla traveled to visit the cemetery three or four times a week.
Priscilla described how she saved all of Vincent‘s belongings, including the last
bottle of soda she had shared with him. She explained that the family no longer
celebrated holidays, finding it meaningless to even put up a Christmas tree.




                                          47
                     iii. Michael Sterling
       Michael Sterling‘s sister-in-law, Dyanne Sterling, testified about the effect
of Michael‘s death on her husband (i.e., Michael‘s brother) and son. Michael was
very close to his three brothers, who were all affected by Michael‘s death.
Dyanne‘s son, who was six when Michael died, was also affected. He cried
frequently and missed his uncle.

                c. Legal Standard
       In a capital case, the Eighth and Fourteenth Amendments to the United
States Constitution permit introduction of evidence about the victim or the impact
of the defendant‘s acts on the victim‘s friends and family. (Payne v. Tennessee
(1991) 501 U.S. 808, 825-827.) Such victim impact evidence is only barred by the
federal Constitution if it is so unduly prejudicial that it renders the trial
fundamentally unfair. (People v. Kopatz (2015) 61 Cal.4th 62, 90 (Kopatz).)
Fundamental unfairness results when testimony ―invite[s] the jury to make its
penalty determination on a purely irrational basis.‖ (People v. Taylor (2010) 48
Cal.4th 574, 646.) California law provides further that victim impact evidence is
admissible under section 190.3, factor (a) as a ―circumstance of the crime.‖
(People v. Edwards (1991) 54 Cal.3d 787, 835-836 (Edwards).) Pursuant to
factor (a), trial courts may allow emotional though relevant evidence, but not
irrelevant information or inflammatory rhetoric that elicits purely emotional or
irrational responses from the jury. (Id. at p. 836; see also People v. Pollock (2004)
32 Cal.4th 1153, 1180.)
       We review the trial court‘s admission of victim impact evidence for abuse
of discretion. (People v. Trinh (2014) 59 Cal.4th 216, 245.)

                d. Analysis
       On appeal, Simon raises three arguments. First, the amount and nature of
the victim impact evidence proffered below violated the due process clause of the


                                             48
Fourteenth Amendment to the United States Constitution. Second, the scope of
victim impact evidence admissible under section 190.3, factor (a) should be
limited to characteristics of the victims known or reasonably apparent to Simon at
the time of the offense, and a more expansive interpretation renders the statute
unconstitutionally vague under the Eighth Amendment to the United States
Constitution and article I, section 17 of the California Constitution. Third, the
proposed victim impact evidence should have been excluded under Evidence Code
section 352 because the risk of undue prejudice substantially outweighed the
evidence‘s probative value.

                     i. Due Process
       Simon argues that the victim impact evidence presented below violated the
due process clause of the Fourteenth Amendment to the United States Constitution
because it was so unduly prejudicial that it rendered the penalty phase
fundamentally unfair. Simon contends the amount, and emotional nature, of the
victim impact evidence was so inflammatory that the jury was led to make a
―passionate, irrational, and purely subjective‖ decision based on the sorrow of the
victims‘ families.
       But we need not address whether the amount or emotional nature of the
victim impact evidence was unconstitutionally prejudicial. Because Simon failed
to properly object to the evidence, he forfeited the issue on appeal. (See People v.
Wilson (2005) 36 Cal.4th 309, 357 [concluding that ―defendant forfeited his claim
because he failed to object to the testimony as exceeding the scope of section
190.3, factor (a)‖].) Although Simon raised many objections to the scope of
permissible victim impact evidence prior to the penalty phase, the trial court
reached few express rulings: (1) testimony need not be limited to one witness per
victim, (2) evidence of awards, artwork, achievements, and future plans were not



                                         49
per se inadmissible, and (3) testimony and evidence need not be limited to the time
surrounding the victims‘ deaths.
       The trial court also warned that the victim impact evidence should not be
overly time consuming or overly emotional, but the court deferred making any
specific rulings on this score pretrial. It was therefore incumbent upon Simon to
monitor the victim impact evidence on an ongoing basis during the penalty phase
and raise any specific objections at that time. (See People v. Romero and Self,
supra, 62 Cal.4th at pp. 45-46 [finding victim impact evidence claim ―forfeited‖
because the ―motion in limine sought to broadly exclude all victim impact
evidence on constitutional grounds, and did not specifically object to the
admission of any particular witness‘s testimony anticipated in this case‖; instead,
―it was incumbent on defendants to object if they believed the testimony actually
presented was ‗excessive, improper, inflammatory, and highly prejudicial‘ ‖].)
       Even if Simon‘s claim were not forfeited, his argument fails on the merits
because the victim impact evidence was not unduly prejudicial. The family
members‘ testimony here properly described the nature of their relationships with
the victims, how they learned about the crimes, and how the crimes impacted their
lives. (See Kopatz, supra, 61 Cal.4th at p. 91 [finding no error where ―the family
members‘ testimony properly explained the nature of their relationship with the
victims, the immediate effects of the murders, and the residual and continuing
impact of the murder on their lives‖]; People v. Chism (2014) 58 Cal.4th 1266,
1326-1327 (Chism) [finding no error where the family members‘ testimony ―was
limited to explain the nature of their relationship with the victim, the immediate
effects of the murder, and the residual and continuing impact of the murder on
their lives‖].) Furthermore, neither the number of witnesses — six — nor the
amount of testimony — 59 pages‘ worth — was excessive. (See, e.g., People v.
Romero and Self, supra, 62 Cal.4th at p. 46 [no error where victim impact

                                         50
testimony consisted of six witnesses spanning 96 pages of the reporter‘s
transcript]; see also People v. Pearson (2013) 56 Cal.4th 393, 464-467 [victim
impact testimony of 13 witnesses]; People v. Nelson (2011) 51 Cal.4th 198, 219-
221 [victim impact testimony of one victim‘s six family members].)
       Moreover, the content of the victim impact evidence was not so emotional
that it became unduly prejudicial. Simon is likely correct that the testimony
painted a picture of ―the complete devastation of two families,‖ but that is to be
expected when loved ones have been brutally murdered. (See Kopatz, supra, 61
Cal.4th at pp. 90-91 [explaining that the devastating effect of a capital crime on
loved ones and the community is generally relevant and admissible]; Chism,
supra, 58 Cal.4th at p. 1328 [―Evidence presented at the penalty phase need not be
devoid of emotional content‖].) The question is not simply whether victim impact
evidence was emotional or demonstrated the devastating effect of the crime;
rather, it is whether the testimony invited an irrational response from the jury.
(See People v. Tully (2012) 54 Cal.4th 952, 1030.) Simon, however, provides no
persuasive basis for us to conclude that the testimony presented in this case
triggered such a response. And our review of the record indicates the testimony
was not so emotional that the trial court‘s failure to exclude it amounted to an
abuse of discretion or rendered Simon‘s trial fundamentally unfair. (See People v.
Trinh, supra, 59 Cal.4th at pp. 245-246.)

                    ii. Vague
       Simon argues that in Edwards, supra, 54 Cal.3d 787, we incorrectly held
that victim impact evidence admitted under section 190.3, factor (a) may
encompass facts unknown to the defendant at the time of the offense. As support,
Simon relies on Justice Kennard‘s concurring and dissenting opinion in People v.
Fierro (1991) 1 Cal.4th 173, which advanced such an interpretation. (Id. at



                                         51
pp. 262-263 (conc. & dis. opn. of Kennard, J.).) Simon also argues that
interpreting section 190.3, factor (a) to include facts unknown or not reasonably
apparent to him at the time of the offense renders the statute unconstitutionally
vague.
         As Simon acknowledges, however, we have rejected these arguments ––
and we have done so repeatedly –– since Edwards was decided. (See, e.g.,
People v. Montes (2014) 58 Cal.4th 809, 877; People v. Zamudio (2008) 43
Cal.4th 327, 364-365; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1057;
People v. Boyette (2002) 29 Cal.4th 381, 445, fn. 12.) Simon offers no different or
persuasive reason for us to revisit our prior rulings.

                     iii. Evidence Code Section 352
         Evidence Code section 352 provides: ―The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.‖ Simon contends that the victim impact evidence should have
been excluded under this provision as substantially more prejudicial than
probative. What he argues is that the victim impact evidence was ―bound to
intensify natural feelings of sympathy for the victims and their families and may
have encouraged a desire for retribution against [Simon by] inviting an emotional
and purely subjective response‖ because it was not limited to a single witness or to
the time surrounding the victims‘ deaths, and it was ―emotionally charged and
detailed.‖
         We find no abuse of discretion here. (See People v. Brady (2010) 50
Cal.4th 547, 583 [reviewing cumulative effect of victim impact testimony under
Evid. Code, § 352 for abuse of discretion].) The victim impact evidence was not



                                          52
unduly prejudicial because the testimony did not invite the jury to form an
― ‗irrational, purely subjective response.‘ ‖ (Edwards, supra, 54 Cal.3d at p. 836.)
The testimony here properly described how the murders impacted the witnesses‘
lives and did not paint a picture of the crimes as any more disturbing than the
evidence already showed. (See Kopatz, supra, 61 Cal.4th at p. 91; Chism, supra,
58 Cal.4th at pp. 1326-1327.) Nor was it improper for the family members to
testify that the nature of the murders made the aftermath especially difficult for
them. (See People v. Montes, supra, 58 Cal.4th at p. 880 [finding no error where
each of the ―relative[s] testified the unexpected and abrupt nature of [the victim‘s]
death made it especially painful‖].) As a result, Simon has failed to show the trial
court abused its discretion in concluding that the probative value of the victim
impact evidence was not substantially outweighed by any risk of undue prejudice.

           2. Victim Impact Instructions
       Simon argues that the trial court failed to fulfill its sua sponte duty to
properly instruct the jury as to victim impact evidence. We find no error.

               a. Background
       At the penalty phase, the trial court instructed jurors with a modified
version of CALJIC No. 8.84.1: ―You will now be instructed as to all of the law
that applies to the penalty phase of this trial. [¶] . . . [¶] You must determine what
the facts are from the evidence received during the trial unless you are instructed
otherwise. You must accept and follow the law that I state to you. You may
consider pity, sympathy, or mercy for the defendant in determining the penalty in
this case which you find to be warranted under the circumstances. [¶] You must
neither be influenced by bias or prejudice against the defendant, nor swayed by
public opinion or public feeling. Both the People and the defendant have the right
to expect that you will consider all the evidence, follow the law, exercise your



                                          53
discretion conscientiously, and reach a just verdict.‖ The trial court also instructed
the jury with CALJIC No. 8.85.
       On appeal, Simon acknowledges that he ―did not request an instruction
regarding the appropriate use of victim impact evidence.‖ He argues, however,
that this failure did not absolve the trial court of its sua sponte duty to provide
jurors with the guidance necessary for them to properly consider the victim impact
evidence in the case. According to Simon, the trial court‘s failure to give an
appropriate limiting instruction violated his ―right to a decision by a rational and
properly-instructed jury, his due process right to a fair trial, and his right to a fair
and reliable capital penalty determination‖ under the federal and state
constitutions.
       Simon contends that an appropriate instruction, derived from State v.
Koskovich, (N.J. 2001) 776 A.2d 144, 177, and Commonwealth v. Means, (Pa.
2001) 773 A.2d 143, 159, would have been: ―Victim impact evidence is simply
another method of informing you about the nature and circumstances of the crime
in question. You may consider this evidence in determining an appropriate
punishment. However, the law does not deem the life of one victim more valuable
than another; rather, victim impact evidence shows that the victim, like the
defendant, is a unique individual. Your consideration must be limited to a rational
inquiry into the culpability of the defendant, not an emotional response to the
evidence. Finally, a victim-impact witness is precluded from expressing an
opinion on capital punishment and, therefore, jurors must draw no inference
whatsoever by a witness‘s silence in that regard.‖

                 b. Legal Standard
       In general, a defendant‘s failure to request a clarifying jury instruction
forfeits any objection thereto. (People v. Russell (2010) 50 Cal.4th 1228, 1273;



                                           54
see also People v. Arias (1996) 13 Cal.4th 92, 171 [―defendant‘s failure to request
a clarifying instruction waives that claim‖]; People v. Rodrigues (1994) 8 Cal.4th
1060, 1192 [―if defendant believed the instruction was unclear, he had the
obligation to request clarifying language. . . . [¶] . . . [¶] Defendant‘s failure to
request such clarifications at trial bars appellate review of the issue‖].)
       Nonetheless, a trial court has a duty to instruct sua sponte ―on those general
principles of law that are closely and openly connected with the facts before the
court and necessary for the jury‘s understanding of the case.‖ (People v. Price
(1991) 1 Cal.4th 324, 442.)

                c. Analysis
       Simon concedes that he failed to request a clarifying jury instruction
pertaining to victim impact evidence. His claim, hence, is forfeited. (See People
v. Russell, supra, 50 Cal.4th at p. 1273.)
       Simon argues nevertheless that the trial court had a sua sponte duty to
deliver an appropriate limiting instruction akin to the one proposed above. We
have rejected the same argument — and the exact same proposed instruction —
before. Indeed, we have repeatedly held that the trial court‘s use of jury
instructions CALJIC Nos. 8.84.1 and 8.85 is sufficient to address a defendant‘s
concerns about the proper use of victim impact evidence, and is consistent with his
or her federal and state constitutional rights to due process, a fair trial, and a
reliable penalty determination. (See People v. Zamudio, supra, 43 Cal.4th at
pp. 369-370; see also People v. Carrington (2009) 47 Cal.4th 145, 198 [―We
previously have rejected these same contentions‖]; People v. Bramit (2009) 46
Cal.4th 1221, 1245 [―We recently considered this instruction and concluded it is
neither required nor appropriate‖].)




                                             55
       As the jury here was instructed according to CALJIC Nos. 8.84.1 and 8.85,
and Simon offers no persuasive reason to revisit our prior rulings, we see no error.

           3. Prosecution Rebuttal Evidence
       Simon argues that the trial court committed reversible error by admitting
irrelevant and highly prejudicial rebuttal evidence at the penalty phase. We are
not persuaded.

                 a. Background
       During the penalty phase, Simon presented expert witness testimony
regarding his brain injuries, as well as testimony from his mother and relatives
regarding his difficult childhood and their loving relationships with him. Simon‘s
family members testified that he was a good role model, a ―disciplined young
person,‖ and ―quite a good kid.‖ His cousin Richardson testified that Simon was
supportive and helpful when she was pregnant. Simon‘s half sister also testified
that Simon had given her good advice in the past, dissuading her from adopting a
lifestyle of crime.
       At the close of the defense‘s case, the prosecution sought to introduce as
rebuttal evidence a letter that Simon purportedly had written to his wife, Keisia,
while incarcerated. The letter contained threatening and explicit language directed
at Keisia, calling her ―bitch‖ and ―roadkill‖ and warning that Simon would ―get‖
her. The prosecution argued that it was admissible to counter the evidence Simon
had introduced of his good character. In particular, the letter was necessary to
counter the defense evidence that Simon was ―a person of such character that he‘s
important for his family members to maintain a relationship with him, maybe
someone they can go to for advice.‖ Defense counsel objected to the letter‘s
admission, stating: ―I haven‘t gone into [Simon‘s] character trait for violence.‖
The trial court overruled this objection, and the letter was read to the jury.



                                          56
       Simon now contends that the trial court committed reversible error in
admitting this evidence. This decision, he contends, violated his rights to have
reasonable time limits placed on the admission of aggravating evidence, to receive
due process and a fair trial, and to a reliable penalty determination. Simon asserts
that because he did not introduce any evidence relating to his character for
nonviolence, evidence showing his character for violence constituted improper
rebuttal.

                b. Legal Standard
       When a defendant claims that his or her general character weighs in favor
of mercy, a prosecutor is entitled to rebut that claim with evidence or argument
offering a different account of the defendant‘s character. (See People v. Loker
(2008) 44 Cal.4th 691, 709 [―When a defendant places his character at issue
during the penalty phase, the prosecution is entitled to respond with character
evidence of its own‖]; People v. Rodriguez (1986) 42 Cal.3d 730, 791.) If the
defendant‘s good character evidence ―was not limited to any singular incident,
personality trait, or aspect of his background‖ and ―painted an overall picture of an
honest, intelligent, well-behaved, and sociable person incompatible with a violent
or antisocial character,‖ the prosecution may introduce appropriate rebuttal
evidence of the scope offered. (People v. Mitcham (1992) 1 Cal.4th 1027, 1072.)
But that scope must still be specific, as we have rejected the idea that any evidence
introduced for the defendant‘s good character will open the door to any and all bad
character evidence from the prosecution. (People v. Rodriguez, supra, 42 Cal.3d
at p. 792, fn. 24.)
       A trial court has broad discretion when determining the admissibility of
rebuttal evidence, and we review a trial court‘s decision to admit such evidence for
abuse of discretion. (See People v. Valdez (2012) 55 Cal.4th 82, 170 [―absent



                                         57
palpable abuse, an appellate court may not disturb the trial court‘s exercise of that
discretion‖].)

                 c. Analysis
       Admitting the letter here was not an abuse of discretion. The vile,
threatening language Simon employed in the letter to his wife undermined the
defense‘s evidence that Simon was supportive of the women in his life and was
someone they could turn to for sound advice. The letter‘s menacing language —
including repeated threats to Keisia‘s life — suggested that Simon possessed
negative, aggressive attitudes toward women that stood in stark contrast to the
testimony of his positive character attributes.
       Our decision in People v. Rodriguez, supra, 42 Cal.3d 730, is instructive.
There, we affirmed the ability of the prosecutor to rebut evidence of the
defendant‘s general character. (Id. at p. 791.) The prosecutor referred to an
incident where the defendant had supposedly reached for a sawed-off shotgun in
the back seat during a traffic stop. (Id. at pp. 745, 791.) We held that the incident
was properly admitted, as it rebutted evidence that the defendant ―was a kind,
loving, contributive member of his community, regarded with affection by
neighbors and family.‖ (Id. at p. 791.) Similarly, the defense evidence here
sought to portray Simon as a kind individual who was supportive of the women in
his life. The letter refuted that portrayal.
       As the letter, though sharply worded, was relatively short in comparison to
the good character evidence the defense had offered, and because it pertained
directly to that evidence, we conclude the trial court did not abuse its discretion in
allowing it.




                                           58
            4. Reference to Other Murder Cases
       Simon claims that the trial court violated his rights to counsel and due
process at the penalty phase by refusing to allow defense counsel to refer to other
prominent murder cases during closing argument. We disagree.

               a. Background
       During closing argument, defense counsel urged the jury when considering
whether Simon deserved the death penalty to ―put him in that category of
convicted offenders of special circumstances murder, and then evaluate whether
he‘s the worst in that — or among the worst in that category.‖ Using a pyramid
graphic to illustrate the different categories of murder, defense counsel argued that
only a narrow group of people liable for a special circumstances murder qualify
for the death penalty. Defense counsel then referred to the murderers Timothy
McVeigh and Charles Manson as points of comparison for the jurors to consider
when deciding if Simon deserved to die. After hearing this remark, the prosecutor
objected.
       During a discussion outside the jury‘s presence, the trial court stated, ―I
think the comparison argument need be made to a point, up to the point to where
we‘re talking about first degree murders are not available for death penalty,‖ but it
expressed concerns with comparing first degree murders with special
circumstances. The prosecutor contended that defense counsel‘s argument that
Simon was ―not as bad as‖ Timothy McVeigh and Charles Manson was improper
because the penalty phase requires an individual determination based on the
defendant‘s own crime and background. The prosecutor cited People v. Jenkins
(2000) 22 Cal.4th 900, 1052 to support the proposition that under section 190.3,
factor (a), a jury‘s consideration of the circumstances of the crime committed must
be individualized, not comparative. The court sustained the objection, agreeing
with the prosecutor that ―[i]t comes down to an individual determination of guilt


                                         59
and not a comparative balancing of whether or not [Simon‘s] crime is worse than
Timothy McVeigh‘s.‖ The court did not, however, give a curative instruction to
the jury.
       On appeal, Simon relies on People v. Millwee (1998) 18 Cal.4th 96, 153 to
show that during penalty phase closing argument counsel may discuss ―other cases
and crimes in order to assist jurors in exercising sentencing discretion.‖ Simon
suggests that trial courts may only limit the scope of defense counsel‘s closing
argument when that argument would be overly time consuming. Further, Simon
contends that because the trial court here based its ruling on an incorrect
interpretation of law, its limitation cannot be an appropriate exercise of discretion.
Simon maintains that these alleged errors were prejudicial and ―skewed the
weighing process in favor of the prosecution,‖ resulting in the denial of Simon‘s
rights to due process, a fair trial, effective assistance of counsel, and a reliable
penalty determination.

                b. Legal Standard
       Criminal defendants enjoy a constitutional right to have counsel present
closing argument to the trier of fact. (People v. Benavides (2005) 35 Cal.4th 69,
110; see Herring v. New York (1975) 422 U.S. 853, 858 [―There can be no doubt
that closing argument for the defense is a basic element of the adversary
factfinding process in a criminal trial‖].) This right, however, is subject to certain
limits. (People v. Benavides, supra, at p. 110.) A trial court may impose
reasonable time limits and may ensure that argument does not ―stray unduly from
the mark.‖ (People v. Marshall (1996) 13 Cal.4th 799, 854-855.) Trial courts
have broad discretion to control the duration and scope of closing arguments. (See
Herring v. New York, supra, at p. 862 [―In all these respects [the trial court] must
have broad discretion‖].)



                                           60
       We review a trial court‘s decision to limit defense counsel closing
argument for abuse of discretion. (See People v. Rodrigues, supra, 8 Cal.4th at
p. 1184.)

                c. Analysis
       On numerous occasions, we have upheld a trial court‘s refusal to allow
defense counsel to compare the defendant to specific well-known murderers or
their crimes. (See, e.g., People v. Virgil (2011) 51 Cal.4th 1210, 1285-1287;
People v. Hughes (2002) 27 Cal.4th 287, 399-400; People v. Roybal (1998) 19
Cal.4th 481, 528-529 (Roybal); People v. Marshall, supra, 13 Cal.4th at pp. 853-
855.) So long as the defendant is allowed to ―make his central point and to argue
in general terms that there were ‗worse cases‘ than his,‖ the trial court‘s refusal is
within its broad discretion. (People v. Hughes, at p. 400.) As relevant to the
present case, we have held that a trial court‘s instruction that jurors may not
compare the defendant‘s crime with any other crime does not constitute prejudicial
error. (Roybal, at p. 529.)
       As an initial matter, we disagree with Simon‘s suggestion that a trial court
may only limit defense counsel‘s closing argument if it is overly time consuming.
To the contrary, trial courts have ―broad discretion‖ to limit both the duration and
scope of closing arguments. (Herring v. New York, supra, 422 U.S. at p. 862.)
Thus, the trial court‘s decision to preclude Simon‘s defense counsel from making
specific references to well-known murderers need not be based on time
considerations only.
       We also disagree with Simon‘s contention that the trial court improperly
limited defense counsel during closing argument. The trial court‘s refusal to allow
defense counsel to compare Simon‘s crimes with the murders committed by the
likes of Timothy McVeigh and Charles Manson was well within its broad



                                          61
discretion. (See People v. Virgil, supra, 51 Cal.4th at pp. 1285-1287 [finding no
abuse of discretion where trial court prohibited defense counsel from referencing
prosecutions of O.J. Simpson and the Menendez brothers].)
       We upheld a similar limitation in People v. Farley (2009) 46 Cal.4th 1053
(Farley). In Farley, the defendant argued that the trial court erred by prohibiting
defense counsel from arguing at closing that the defendant‘s crimes were not as
bad as other capital defendants. (Id. at pp. 1129-1130.) Defense counsel sought to
refer to infamous murderers like Richard Ramirez, David Carpenter, and Ramon
Salcido. (Id. at p. 1130.) But the trial court ―ruled that counsel would ‗not be
permitted to engage in a comparative analysis of other death penalty cases or other
murder cases . . . .‘ ‖ (Ibid.) While the trial court barred defense counsel from
mentioning specific cases, names, and penalties, it permitted counsel to argue
― ‗this is not a child torture case or something like that.‘ ‖ (Ibid.) We upheld the
trial court‘s refusal, explaining that counsel was not precluded from making his
central point that the ―defendant‘s murders were not ‗the worst of the worst.‘ ‖
(Id. at p. 1131.) The same is true here. Although the trial court below did not
allow defense counsel to mention specific names, defense counsel was still
permitted to ask the jury to consider if Simon was among the worst in the category
of convicted offenders of special-circumstances murder. As in Farley, then, we
find no constitutional violation.
       Nor would we likely have found such a violation had the trial court
instructed the jury against comparing Simon‘s crimes to any others. (See Roybal,
supra, 19 Cal.4th at pp. 528-529.) In Roybal, defense counsel sought to compare
the defendant‘s case to the so-called ―Billionaire Boys Club‖ murders. (Id. at
p. 528.) The trial court sustained an objection by the prosecutor and instructed
jurors, ― ‗[Y]ou may not attempt to compare this crime, this murder, with any
other murder. In other words, you can‘t indulge in comparisons. . . . You focus on

                                         62
the facts associated with this case, with this defendant, with this crime.‘ ‖ (Ibid.,
italics added.) We upheld the trial court‘s instruction, reasoning that the defendant
could still argue his central point that the circumstances of his crime were
mitigated by his background and emotional and mental disorders. (Id. at p. 529.)
        Here, as in Roybal, Simon‘s defense counsel was not precluded from
making his central argument that not every person (Simon included) found liable
for special circumstances murder deserves the death penalty. And even had the
trial court admonished the jury with a curative instruction following defense
counsel‘s comparative references — which the court did not do — Roybal
demonstrates that such an instruction would likely have been proper. (Roybal,
supra, 19 Cal.4th at p. 529.) Thus, the trial court‘s decision here did not constitute
an abuse of discretion.

            5. Other Challenges to the Death Penalty Statute
        Simon raises numerous challenges to California‘s death penalty scheme
that we have repeatedly considered and rejected. He fails to persuade us to
reconsider our previous holdings. As a result, we again conclude:
        The death penalty is not unconstitutional for failing broadly to ―adequately
narrow the class of murderers eligible for the death penalty.‖ (Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 468.) Section 190.3, factor (a), which permits the
jury to consider the circumstances of a defendant‘s crime in determining whether
to impose the death penalty, does not license the jury to impose death in an
arbitrary and capricious manner in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. (People v. Boyce
(2014) 59 Cal.4th 672, 723 (Boyce); People v. Enraca (2012) 53 Cal.4th 735,
769.)




                                          63
       Nor is the death penalty unconstitutional ―for failing to require proof
beyond a reasonable doubt that aggravating factors exist, outweigh the mitigating
factors, and render death the appropriate punishment.‖ (Boyce, supra, 59 Cal.4th
at pp. 723-724.) This conclusion is not altered by the United States Supreme
Court‘s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, and Ring v.
Arizona (2002) 536 U.S. 584. (Boyce, at p. 724.) Neither does the federal
Constitution require that the jury make written findings regarding aggravating
factors. (People v. DeHoyos (2013) 57 Cal.4th 79, 150.)
       Section 190.3 does not require California courts to undertake a comparison
between the case at bar and other similar cases with respect to the relative
proportionality of the sentence imposed. Nor does the federal Constitution
mandate such intercase proportionality review. (People v. Contreras (2013) 58
Cal.4th 123, 173.)
       During the penalty phase, the jury may consider a defendant‘s
unadjudicated criminal activity and need not unanimously agree beyond a
reasonable doubt that such criminal activity occurred. (People v. Nelson, supra,
51 Cal.4th at p. 226.)
       The use of adjectives such as ―extreme‖ and ―substantial‖ in the list of
potential mitigating factors in section 190.3 does not unconstitutionally obstruct
the jury‘s ability to consider mitigating evidence. (People v. Martinez (2010) 47
Cal.4th 911, 968; see Boyce, supra, 59 Cal.4th at p. 724.) Moreover, the trial
court ―need not instruct the jury that mitigating factors can be considered only in
mitigation.‖ (Boyce, at p. 724.)
       California does not deny capital defendants equal protection of the law by
providing certain procedural protections to noncapital defendants that are not
afforded to capital defendants. (People v. Williams (2013) 58 Cal.4th 197, 295.)



                                         64
       International norms and treaties do not render the death penalty
unconstitutional as applied in this state. (People v. Williams, supra, 58 Cal.4th at
pp. 295-296.)
       Finally, the cumulative impact of these purported deficiencies in
California‘s death penalty scheme does not render the penalty unconstitutional.
We have rejected each of Simon‘s challenges to the death penalty statute, and
these challenges are no more persuasive when considered together. (See People v.
Williams, supra, 58 Cal.4th at p. 296; People v. Garcia (2011) 52 Cal.4th 706,
764-765.)




                                         65
                              III. CONCLUSION
     For the reasons stated above, we affirm the judgment in its entirety.
                                               CUÉLLAR, J.


WE CONCUR:

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




                                       66
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Simon
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S102166
Date Filed: July 18, 2016
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Gordon R. Burkhart

__________________________________________________________________________________

Counsel:

Kimberly J. Grove, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Holly D. Wilkens, Robin Derman and Eric A. Swenson, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kimberly J. Grove
P.O. Box 425
Ligonier, PA 15658
(724) 238-3497

Eric A. Swenson
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2216
