People v. Bell

At defendant's direction, Roseada drove around looking for a store to rob. After defendant rejected some locations, they chose the Quik Stop because it had no customers and was in an isolated area. Defendant got out of the car and asked Tory if he should kill the clerk. Tory said no. When defendant ran out, holding cash in his hand, a large truck drove by. Defendant shot twice at the truck, got in the car, and Roseada drove off. Back at the apartment, they cleaned the gun and bullets. Tory buried the gun and burned defendant's shoes, as defendant told him to do. Tory identified defendant as the shooter in the surveillance video. Defendant told Tory he shot the clerk because he put up a struggle. He said he shot at the truck driver because he wanted to leave no witnesses.

The defense presented testimony from two boys who had been in custody with Tory in juvenile hall. Kenneth A. said Tory had bragged that he committed the Quik Stop murder and was going to let defendant

Around a month after the Quik Stop murder, defendant led the police on a high-speed chase. A patrol officer saw defendant shortly after midnight, going 90 miles per hour on city streets. He slowed after passing the patrol car, but then drove through a stop sign and accelerated away with his headlights off. The officer pursued with lights and siren. Rounding a corner, the officer noticed defendant's car parked at the curb, apparently unoccupied. As the officer stood outside his patrol car, defendant sat up, started his car's engine, and sped away. The chase continued through narrow residential streets at speeds between 55 and 75 miles per hour. Defendant ran multiple stop signs and sometimes drove on the wrong side of the road. He was eventually forced to stop at a construction barricade. Defendant was uncooperative, initially refusing to leave the car or put his hands in the air. He yelled at officers and resisted being handcuffed. His blood alcohol content was between .10 and .11 percent.

Finally, sheriff's deputies described two incidents while defendant was in custody. Before trial began, a deputy discovered a jail-made knife, or shank, hidden inside one of defendant's shoes. It had been sharpened on both sides and tapered on one end to a sharp point. Hidden inside the other shoe was a piece of glass wrapped in tape. Later,

Psychologist Gretchen White compiled a psychosocial history based on available records and interviews with defendant and his family. Defendant faced "risk factors" at every

Less than a week after this ruling, defense counsel requested a new hearing on the ground that defendant was not present at the previous hearing and had not waived his right to attend. Another ex parte hearing was held before a different judge. At this hearing, a deputy public defender testified about his use of jury consultant Gordon in a recent murder trial. The case involved an African-American defendant who murdered an Assyrian clerk during a late-night convenience store robbery, which was captured on videotape. Although the jury found that defendant guilty with special circumstances, it returned a verdict of life without possibility of parole. The public defender explained in detail how the consultant assisted him, both in jury selection and later stages of trial. Defendant's counsel believed a jury consultant would be helpful because the community had become especially sensitive to violence committed by African Americans. The court concluded a jury consultant was not needed to ensure a fair trial and denied the requested funds. However, because defense counsel demonstrated a need for assistance in the jury selection process, the court invited him to submit a new application for a private investigator's services.

Defendant then sought $ 4,500 for investigative assistance during jury selection. The court granted $ 2,750 and specified that only previously authorized defense investigators Joe Maxwell and Robert Wood could be retained. A month later, defense counsel advised the court that both of these investigators had refused the assignment. He now sought $ 7,000 to retain Karen Fleming, an Oakland consultant experienced in selecting capital juries. The request was denied. Counsel later renewed his request for investigative funds and asked that the court expand its authorization to include investigators other than Maxwell and Wood. The court denied additional funds but permitted counsel to hire a different investigator.

Defendant later renewed his request for a jury consultant after learning that a second deputy district attorney would assist in jury selection and trial. At an

Nor did the assertedly greater resources of the district attorney's office require the court to fund a jury consultant for the defense. The prosecution did not employ such an expert. Once it became clear that two deputy district attorneys would be trying the case, the court expanded defendant's

a. Adequacy of Voir Dire

Defendant makes several arguments concerning the adequacy of voir dire. He first asserts the court unfairly restricted voir dire because it curtailed questioning from defense counsel. The record is to the contrary. Defense counsel had an opportunity to question each prospective juror, sometimes at considerable length, during the sequestered voir dire. Counsel frequently used this questioning to probe panelists' assurances that they could be fair and to lay the groundwork for cause challenges. The court initially became frustrated with the length of this questioning and perceived that defense counsel was "putting words in" prospective jurors' mouths. It announced that attorneys would question the panelists first, followed by court questioning, after which no further questioning would be permitted.

Nor is there merit to defendant's related claim that the court impermissibly "chilled" defense counsel's advocacy by threatening to end the Hovey voir dire. The first prospective juror called in for sequestered voir dire strongly supported the death penalty but clearly told the court he could keep an open mind and base his verdict on the evidence presented. Defense counsel asked several leading questions that attempted to portray the juror as unqualified to serve. The court expressed exasperation with this tactic and suggested counsel was abusing the voir dire

b. Denial of Cause Challenges

Defendant claims the court erroneously refused to dismiss seven prospective jurors based on their death penalty views. ( Witt , supra , 469 U.S. at p. 424, 105 S.Ct. 844 .) He also contends another juror would have been incapable of judging the case impartially because the juror's wife received dialysis treatments from the murder victim's wife. He argues deferential review is improper because the court was motivated simply to expedite voir dire, rather than ascertain jurors' true qualifications.

"Defendant's failure to exhaust his peremptory challenges or to express dissatisfaction with the jury as selected forfeits [these claims] on appeal." ( People v. Davis (2009) 46 Cal.4th 539 , 582, 94 Cal.Rptr.3d 322 , 208 P.3d 78 ; see People v. Mickel (2016) 2 Cal.5th 181 , 216, 211 Cal.Rptr.3d 601 , 385 P.3d 796 .) "Moreover, whatever the scope may be of the trial court's power or duty to excuse biased jurors sua sponte, any failure to do so does not 'excuse defendant's failure to preserve this issue for review.' " ( People v. Hillhouse (2002) 27 Cal.4th 469 , 487, 117 Cal.Rptr.2d 45 , 40 P.3d 754 .) Nor can defendant establish prejudice. None of the prospective jurors in question served on his jury. (See Davis , at p. 582, 94 Cal.Rptr.3d 322 , 208 P.3d 78 .) Defendant excused six of the eight with peremptory challenges, and a seventh was never called into the jury box. The eighth was seated as an alternate but did not deliberate in either phase of trial. Where no challenged panelist actually served on defendant's jury, " 'there is no basis for us to conclude that the jury empanelled was anything but impartial.' " ( Davis , at p. 582, 94 Cal.Rptr.3d 322 , 208 P.3d 78 ; see Hillhouse , at pp. 487-488, 117 Cal.Rptr.2d 45 , 40 P.3d 754 .)

3. Claims Related to Codefense Counsel's Later Employment with District Attorney

When a juvenile delinquency petition was filed against Tory T. in connection

Defendant contends his rights to confrontation, compulsory process, and due process were violated by the denial of discovery into Tory's discussions with his former attorney. We have previously rejected similar claims and do so again.

The attorney-client privilege, one of the oldest recognized, allows a client to refuse to disclose, and to prevent others from disclosing, confidential communications with an attorney. ( Evid. Code, § 954.) The "fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding

b. Motion to Recuse District Attorney's Office

Defendant's recusal motion was properly denied. A motion to recuse the district attorney "may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (§ 1424, subd. (a)(1).) "The statute 'articulates a two-part test: "(i) is there a conflict of interest?; and (ii) is the conflict

"Q: Did she tell you that the car was washed?

"A: She said it was washed, yes.

"Q: At a professional car wash?

"A: I don't recall if she said professional. What I recall - at least the portion I recall is that she went out the next morning and washed down the interior of the car herself. That's what I recall.

"Q: Did she also talk about washing the exterior of the car, if you remember?

"A: I recall something about the exterior, but I don't know if she did it or a professional did it."

Defense counsel did not object to this testimony. During a recess, however, he complained that the prosecutor had elicited statements made by a codefendant in violation of People v. Aranda (1965) 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 and Bruton v. United States (1968) 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 . Counsel said he had not objected at the time because he "didn't think that was the appropriate thing to do in terms of trial strategy," but he argued the testimony was material and grounds for a mistrial.

The court denied the motion. First, defendant failed to object, even though he had an opportunity to do so. Any problem could have been cured at that time. Second, defendant had opened the door to this evidence by questioning Detective Olson about the failure to test possible blood found on the car, and the prosecution had a right to follow up and explain why testing would have been futile.

Detective Olson related an out-of-court statement from Roseada, but the statement was admissible, regardless of its truth, to show its effect on Olson. It tended to explain why Olson had not pursued forensic testing of the possible blood stain

c. Witness Who Invoked Privilege Against Self-incrimination

Before trial, defense counsel learned that prosecution witness Debra Ochoa was on felony probation or parole and would claim her Fifth Amendment privilege against self-incrimination if asked questions about gun possession or ownership. The prosecution hoped to show that the murder weapon was sold to Ochoa, who gave it to defendant. Defense counsel said he would not object to the prosecutor establishing Ochoa's possession of the gun through other witnesses but opposed mention of her expected testimony during opening statements. The prosecutor agreed, and the topic was not mentioned in openings.

During the prosecution's case-in-chief, Los Angeles resident Phillip Campbell testified that he sold a .357 Smith & Wesson revolver to Nick Feder in 1995. Feder testified that he purchased the gun from Campbell and four or five months later sold it to his friend Debra Ochoa. Feder said the murder weapon recovered by the

The trial court properly explored Ochoa's claim of privilege and instructed the parties not to ask questions that would prompt its invocation. (See Evid. Code, § 913, subd. (a) ; People v. Frierson (1991) 53 Cal.3d 730 , 743, 280 Cal.Rptr. 440 , 808 P.2d 1197 .) The constitutional concern raised by a witness's assertion of the Fifth Amendment is that the witness cannot be cross-examined about the testimony that elicited the claim. (See People v. Douglas (1990) 50 Cal.3d 468 , 508, 268 Cal.Rptr. 126 , 788 P.2d 640 .) There was no Sixth Amendment violation here because the trial court's ruling prevented Ochoa from providing any testimony that would have evaded cross-examination. The prosecution properly asked about Ochoa's relationship with defendant, which was relevant. Defendant was free to cross-examine her on that subject. If defendant wished to dispel the inference that Ochoa gave him Feder's gun, he could have asked whether she saw defendant during his trip to Los Angeles, or generally how they spent that time together. Defendant was not precluded from eliciting facts about their friendship that might have cut against the inference that Ochoa gave him a weapon.

It also bears noting that any hindrance of defendant's cross-examination resulted from Ochoa and was not attributable to the People or the court. Her "attorney's decisions regarding the best means to defend her, including the advice to invoke the privilege against self-incrimination, may not have been consistent with defendant's interest, but they do not establish prosecutorial manipulation or any other impropriety." ( People v. Mincey (1992) 2 Cal.4th 408 , 442, fn. 7, 6 Cal.Rptr.2d 822 , 827 P.2d 388 ( Mincey ).) To the extent defendant contends the prosecution should not have been allowed to call Ochoa without granting her immunity, he did not request this remedy below. Although defendant now speculates that Ochoa could have given the gun to someone else, he also risked the possibility that her testimony would be quite damaging. "[T]he Confrontation Clause guarantees an opportu nity

Before trial, defendant moved under Evidence Code section 352 to exclude the audio from the crime scene surveillance video. He argued the victim's noises after being shot were "extremely prejudicial" and not probative. After listening to the tape, the court disagreed, noting that the tape was probative to show what happened during the

The court did not abuse its discretion in admitting the unredacted videotape in the penalty phase. There is no dispute that it

Although defendant contends federal courts have allowed similar instructions, the decisions he cites involved "a far narrower category of witnesses-namely, narcotics addicts who are paid informers for the Government with criminal charges pending against them ." ( U.S. v. Kinnard (D.C. Cir. 1972) 465 F.2d 566 , 572 ; see U.S. v. Collins (5th Cir. 1972) 472 F.2d 1017 , 1018.) Paid informers present special reliability concerns not present here. Moreover, federal courts have held that the "addict-informer" jury instruction is not required if the witness has been cross-examined about the addiction or if another cautionary instruction has been given. ( U.S. v. Vgeri (9th Cir. 1995) 51 F.3d 876 , 881.)

b. Lesser-included Offense of Firearm Discharge

Defendant was charged with the felony of maliciously and willfully discharging a firearm at an occupied vehicle ( § 246 ) when he shot at truck driver Daniel Perry. A related statute, section 246.3, subdivision (a),

C. Penalty Phase Issues

1. Claims Related to Defendant's Courtroom Outburst and Fight with Deputies

Defendant raises several claims related to events after his courtroom outburst during the penalty phase. (See ante , 246 Cal.Rptr. 3d at pp. 546-47, 439 P.3d at pp. 1118-19.) To recap: Defendant became upset when his mother cried while leaving the stand. Defense counsel asked for a recess, and the jurors left the courtroom. Defendant began banging on counsel table with both hands, making noises, and trying to lift the table. Courtroom deputies surrounded him and a scuffle ensued. During this time, the judge retreated to his chambers. It ultimately took nine deputies three to five minutes to subdue defendant, and some deputies were injured. The judge later described the incident as the most serious courtroom disturbance he had seen in 17 years on the bench. After defendant was removed, the court and counsel discussed potential security measures (see post , 246 Cal.Rptr. 3d at pp. 574-76, 439 P.3d at pp. 1142-43) and jury instructions.

a. Defendant's Absence from Later Proceedings

i. Background

The next day, a Friday, defendant came to court in a wheelchair, wearing jail

Immediately after defendant was excused from the courtroom, the court and counsel discussed a note from the jury about defendant's violent behavior the previous day. (See post , 246 Cal.Rptr.3d at pp. 571-72, 439 P.3d at pp. 1139-40.) The court questioned jurors about the note. In this discussion, the court noted defendant's absence and told the jury they could not consider it in deciding the case. Defense counsel then presented testimony from expert Nell Riley, defendant's brother Scheron Bell, and defendant's ex-girlfriend L.O. After a break in Riley's testimony, the court admonished the jury again not to speculate about defendant's absence "or consider that in any way in making [its] decision." After the jury was excused for the day, the court and counsel discussed jury instructions and evidentiary issues.

Defendant returned to court on Monday, walking without assistance and wearing a suit. He reported that he felt "fine." The court asked if defendant was going to be disruptive, and defense counsel responded he was no longer concerned about disruptions because defendant was feeling better. The court stressed that defendant had not been excused solely because he reported being in pain. The court told counsel: "I didn't get that from what you said on Friday, that his disruptive behavior would only be because of the pain. ... I was prepared to put the case over [until] Monday to see if he felt better. [¶] You didn't want to put the case over because you had

ii. Discussion

Defendant now contends his absence from trial violated his rights to due process and confrontation under the state and federal constitutions and also violated state statutory law. Defendant waived his constitutional rights and any statutory error was harmless.

A criminal defendant accused of a felony has the constitutional right to be present at every critical stage of the trial, including during the taking of evidence. ( Illinois v. Allen (1970) 397 U.S. 337 , 338, 90 S.Ct. 1057 , 25 L.Ed.2d 353 ( Allen ); People v. Rundle (2008) 43 Cal.4th 76 , 133, 74 Cal.Rptr.3d 454 , 180 P.3d 224 ( Rundle ); People v. Jackson (1996) 13 Cal.4th 1164 , 1209, 56 Cal.Rptr.2d 49 , 920 P.2d 1254 ( Jackson ).) " 'A competent defendant may waive that right, however. [Citation.] Neither the constitutional right to confrontation nor the right to due process precludes waiver of a defendant's

Finally, the proceedings defendant missed on Thursday afternoon were not critical. "A critical stage of the trial is one in which a defendant's ' "absence might frustrate the fairness of the proceedings" [citation], or "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge" [citation].' " ( Rundle , supra , 43 Cal.4th at p. 133, 74 Cal.Rptr.3d 454 , 180 P.3d 224 .) Defendant's outburst occurred after the testimony of the last witness of the day, and the jury was sent home immediately afterward. In defendant's absence, the court and counsel described for the record what had happened and discussed various security options with the courtroom bailiffs. After touching on some evidentiary matters, they resumed a discussion about jury instructions. These proceedings consumed one hour, after which court recessed for the day. "[A]

Defendant argues the court did not conduct an adequate inquiry into the

iii. Motion for Mistrial

Defendant asserts the court erred in denying his motion for a mistrial. In general, "a motion for mistrial should be granted only when ' "a party's chances of receiving a fair trial have been irreparably damaged." ' " ( People v. Ayala (2000) 23 Cal.4th 225 , 282, 96 Cal.Rptr.2d 682 , 1 P.3d 3 .) "We review a ruling on a mistrial motion for an abuse of discretion. [Citations.] A trial court should declare a mistrial only ' "if the court is apprised of prejudice that it judges incurable by admonition or instruction." ' [Citations.] 'In making this assessment of incurable prejudice, a trial court has considerable discretion.' " ( People v. Lewis (2008) 43 Cal.4th 415 , 501, 75 Cal.Rptr.3d 588 , 181 P.3d 947 .)

The court properly refused to grant a mistrial. Defendant's motion was based on a concern that jurors were afraid of him, or had concluded he was a violent person, because of his courtroom outburst. However, we have long held that "a defendant may not be heard to complain when, as here, such prejudice as he may have suffered resulted from his own voluntary act." ( People v. Hendricks (1988) 44 Cal.3d 635 , 643, 244 Cal.Rptr. 181 , 749 P.2d 836 .)

After defendant's outburst, the court ordered him physically restrained. While not contesting this decision itself, defendant argues the court improperly deferred to security personnel regarding the type of restraints to employ and improperly imposed two visible forms of restraint. He also contends the court erred by not instructing the jury to disregard the restraints. To the extent defendant's claims are not forfeited, they lack merit.

i. Background

Shortly after defendant's outburst, the court discussed potential security measures with the courtroom bailiffs and counsel. The court expressed concern for the

Moreover, any error in failing to instruct was clearly harmless. "The purpose of requiring the instruction is to prevent the jury from inferring that, because a defendant charged with a violent crime is restrained, he is 'a violent person disposed to commit' the charged crime. ( Duran , supra , 16 Cal.3d at p. 290, 127 Cal.Rptr. 618 , 545 P.2d 1322 .) Where, however, as here, a defendant has been convicted of a special circumstance murder, the rationale requiring a sua sponte instruction is no longer applicable." ( Lopez , supra , 56 Cal.4th at p. 1081, 157 Cal.Rptr.3d 570 , 301 P.3d 1177 .) The jury had already convicted defendant of murdering Simon Francis in the course of a robbery. Under any standard, its penalty phase verdict would not have been affected by the absence of an instruction on defendant's restraints. (See ibid . ; see also People v. Slaughter (2002) 27 Cal.4th 1187 , 1214, 120 Cal.Rptr.2d 477 , 47 P.3d 262 .)

d. Ineffective Assistance of Counsel

Defendant argues his attorney rendered constitutionally ineffective assistance in certain proceedings following the courtroom outburst. "In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶] ... under prevailing professional norms.' [Citations.] Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or

Defendant first argues his attorney was ineffective for failing to object to the use of restraints, or at least to the court's decision to restrain him with both chains and a stun belt. However, the violence of defendant's courtroom outburst, and the extreme difficulty deputies had in subduing him, made the legitimacy of ordering these restraints manifest. A decision not to pursue futile or frivolous motions does not make an attorney ineffective. ( People v. Thompson (2010) 49 Cal.4th 79 , 122, 109 Cal.Rptr.3d 549 , 231 P.3d 289 .) Counsel wisely conceded the need for increased security measures and focused his efforts on advocating for the least visible forms of restraint. Defendant now argues having an armed deputy stationed behind him would have been preferable to the stun belt. It is difficult to conclude that such an overt action would have been preferable to restraints that may not have actually been seen by jurors. Counsel could well have concluded this option would emphasize defendant's perceived dangerousness. A deputy standing or sitting close to him at all times, in stark departure from earlier practice, would surely have been more conspicuous than a slight bulge in defendant's clothing from the stun belt. As to the complaint that chains were used in addition to a belt, it is unclear how defendant could have been prejudiced by the lack of an objection because the record does not establish that the jury could see either type of restraint.

Defendant next complains his attorney did not seek additional instructions regarding his absence from court the day after the outburst. The court twice admonished the jury not to speculate about defendant's absence or consider it in any way in reaching a decision. Defendant argues his counsel should have sought an instruction explaining he was "voluntarily absent from the courtroom for good cause ." It is unclear what this phrase means, and it would likely have been just as opaque to the jury. Jurors might have mistakenly thought defendant had been excluded from court for his disruptive behavior. Defense counsel could reasonably have preferred the admonition that was given. Any hints about why defendant was not present risked emphasizing his upsetting behavior the previous day.

Finally, defendant asserts counsel should have objected to the prosecution's use of the courtroom outburst as aggravating evidence under section 190.3, factor (b). Such an objection would have been futile because defendant's conduct was admissible. Section 190.3, factor (b) directs the jury to consider, at the penalty phase of a capital case, the "presence or absence of

Defendant contends the wedding videotape was especially problematic because the jury also saw a videotape that captured surveillance footage of the victim's death. Beyond asserting the point, however, defendant does not explain why the mere existence of other evidence in the same format would have a "synergistic effect" rendering the videotape prejudicial. Although video footage juxtaposing the victim in life and in death might create prejudice in some circumstances, here the trial court took steps to ensure that the wedding video would not inflame the jury's emotions. The court first required the prosecutor to reduce the videotape's length. It carefully reviewed the edited portion and ordered the prosecutor to remove a segment that showed the bride receiving communion during the ceremony. Finally, the court instructed the jury that the videotape, along with other victim impact evidence, "ha[d] been introduced for the purpose of showing the specific harm

Defendant relies on various cases precluding admission of evidence about a defendant's gang membership , but these cases are inapposite. No evidence suggested that defendant was active in or involved with criminal street gangs. Nor was the jury likely to draw this inference from his musical selection.

"The jury may properly consider evidence of unadjudicated criminal activity involving force or violence under factor (b) of section 190.3 and need not make a unanimous finding on factor (b) evidence." ( People v. Clark , supra , 63 Cal.4th at p. 644, 203 Cal.Rptr.3d 407 , 372 P.3d 811 ; see Jones , supra , 3 Cal.5th at p. 617-618, 220 Cal.Rptr.3d 618 , 398 P.3d 529 .) The use of unadjudicated criminal activity as an aggravating factor does not violate a defendant's right to due process or a jury trial. ( Winbush , supra , 2 Cal.5th at p. 489, 213 Cal.Rptr.3d 1 , 387 P.3d 1187 .)

"The federal Constitution does not require that a burden of proof be placed on the prosecution at the penalty phase. [Citation.] 'Unlike the guilt determination, "the sentencing function is inherently moral and normative, not factual" [citation] and, hence, not susceptible to a burden-of-proof quantification.' [Citation.] The trial court did not err in failing to instruct the jury that the prosecution had the burden of persuasion regarding the existence of aggravating factors or the appropriateness of the death penalty. [Citation.] 'Nor is an instruction on the absence of a burden of proof constitutionally

D. Cumulative Error

Defendant claims that even if errors at the guilt and penalty phases were individually harmless, they were cumulatively prejudicial. We assumed error in the admission of testimony arguably conveying the substance of a hearsay declarant's out-of-court identification and in defendant's absence during one day of the penalty phase trial. Each of these assumed errors was harmless, as were any other possible errors we contemplated. No cumulative prejudicial effect warrants reversal. (See Bolden , supra , 29 Cal.4th at pp. 567-568, 127 Cal.Rptr.2d 802 , 58 P.3d 931 .)

T

he judgment is affirmed.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

Witness Phillip Campbell recognized the revolver as one he had purchased from his brother-in-law and later sold to Nick Feder. Feder sold the gun to Debra Ochoa. Ochoa testified that she had known defendant for approximately 14 years. She was not questioned about the gun. (See post , at pp. 37-39.)

Nathan N. was 15 years old at the time of

Defendant assaulted two other men less than a year before the Quik Stop killing. In February 1996, he confronted Gary Wolford, claiming Wolford's

Defendant's mother described his upbringing. She gave birth to defendant when she was 16 years old. He was nearly three months premature and weighed slightly over three pounds, requiring incubation for eight weeks. During his first two years, he was very sickly and frequently hospitalized. The family moved often because defendant's father was in the Air Force. At about age four, defendant was prescribed Ritalin for hyperactivity. His mother stopped giving it to him after a few days because of its effect on him. Defendant's father had little patience with defendant, and the parents separated when defendant was about 10 years old. His mother remarried, but defendant disliked his stepfather. Defendant was caught shoplifting and had increasing difficulties in school. Frustrated with the rules in his mother's house, defendant moved in with his girlfriend at age 16. He became more distant and frustrated. Defendant's younger siblings had no behavioral problems. Both were in college at the time of trial.

Defendant's mother said she loved him and was overwhelmed by the possibility he would receive the death penalty. Defendant's brother said he loved him, too. Defendant often advised his brother to stay in school and not behave as he had. L.O. testified that defendant was drunk on the night he sexually assaulted her, and she no longer hated him for it. She allowed him to see their three young children. They would be devastated if he were executed.

Neuropsychologist Nell Riley testified. Defendant's IQ was 77, which, while not indicating mental retardation, was "a very low score" correlating with subnormal intelligence. He had severe dyslexia, poor reading skills,

3. Rebuttal

Sheriff's deputies testified about defendant's courtroom outburst. Defendant's mother was crying when she left the witness stand. The judge called for a recess and jurors started walking toward the jury room. Although the record is not clear, it appears the jurors were no longer present when the outburst began. Defendant began pounding on the counsel table with both fists, then stood and tried to lift the table. Three deputies grabbed him but were unable to subdue him. Additional deputies joined the struggle. One deputy was hit and thrown over the railing into the audience section. Another deputy struck defendant on the legs with a baton, to no avail. At one point, defendant grabbed a deputy by the hair and held her in a headlock. Ultimately, it took

Defense counsel first sought to retain Eda Gordon from New Mexico, who had assisted the Stanislaus County Public Defender's Office in a previous murder case. The court denied this request, noting that defense counsel was "quite competent to select his own jury," especially given that voir dire would be conducted largely by the judge. Counsel renewed his request in a

Finally, there was no equal protection violation. Defendant complains that if he had been represented by the public defender, that office could have hired a jury selection expert without obtaining court approval. Because his counsel was appointed from a panel of private attorneys, he had to apply for court funding. The premise of this claim is speculative. Although a public defender's office can hire an expert from its own funds, its ability to obtain reimbursement for this expense is also measured by section 987.9. (See Gov. Code, § 15201 ; Cal. Code Regs., tit. 2, §§ 1025.1, 1025.3 ; 67 Ops.Cal.Atty.Gen. 310 (1984).) Despite minor differences in the process, indigent defendants represented by the public defender's office have no greater access to state-sponsored jury consultants than those represented by private counsel. Both are entitled to state funding for a jury consultant only when such services "are reasonably necessary for the preparation or presentation of the defense." (§ 987.9, subd. (a).)

2. Jury Selection

Defendant contends voir dire was impermissibly restricted and the trial court failed to excuse panelists who were biased in favor of the death penalty. To the extent these claims were not forfeited, they lack merit.

The jury selection process consisted of both group and individual voir dire. Prospective

Defendant did not object to the adequacy of voir dire (see People v. Foster (2010) 50 Cal.4th 1301 , 1324, 117 Cal.Rptr.3d 658 , 242 P.3d 105 ( Foster ) ), nor does he identify any specific questions he was precluded from asking (see People v. Vieira (2005) 35 Cal.4th 264 , 287, 25 Cal.Rptr.3d 337 , 106 P.3d 990 ). Assuming his claim of error was not forfeited (see People v. Taylor (2010) 48 Cal.4th 574 , 608, 108 Cal.Rptr.3d 87 , 229 P.3d 12 ), it lacks merit. Although the court sometimes told defense counsel to limit or wrap up his questioning, any restrictions on voir dire were reasonable. We have repeatedly observed that the trial court has " 'considerable discretion ... to contain voir dire within reasonable limits.' " ( People v. Jenkins (2000) 22 Cal.4th 900 , 990, 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ; see People v. Williams (2006) 40 Cal.4th 287 , 307, 52 Cal.Rptr.3d 268 , 148 P.3d 47 .) This discretion extends to death qualification. ( People v. Butler (2009) 46 Cal.4th 847 , 859, 95 Cal.Rptr.3d 376 , 209 P.3d 596 .) The court may limit attorney questioning as appropriate ( People v. Robinson (2005) 37 Cal.4th 592 , 614, 36 Cal.Rptr.3d 760 , 124 P.3d 363 ), and, indeed, "has a duty to restrict voir dire within reasonable bounds to expedite the trial." ( People v. Avila (2006) 38 Cal.4th 491 , 536, 43 Cal.Rptr.3d 1 , 133 P.3d 1076 , italics added.) Defendant's attorney had wide latitude to explore prospective jurors' biases. (

Defendant also complains the court "did not engage in a bona fide " assessment of jurors' qualification to serve but found them qualified so long

The trial court's decision on a motion to recuse the prosecutor is reviewed for abuse of discretion ( Haraguchi , supra , 43 Cal.4th at p. 711, 76 Cal.Rptr.3d 250 , 182 P.3d 579 ), "even in capital cases" ( Hollywood v. Superior Court (2008) 43 Cal.4th 721 , 728, 76 Cal.Rptr.3d 264 , 182 P.3d 590 ). The trial court's factual findings are reviewed for substantial evidence, and its application of the law will be reversed only if arbitrary and capricious. ( Haraguchi , at pp. 711-712, 76 Cal.Rptr.3d 250 , 182 P.3d 579 ; People v. Vasquez (2006) 39 Cal.4th 47 , 56, 45 Cal.Rptr.3d 372 , 137 P.3d 199 .)

Defendant fails to show an abuse of discretion. Cassidy negotiated a plea bargain that served the best interests of his client. The terms of this agreement were discussed "well before" Cassidy applied for employment

b. Testimony Regarding Citizen Informant's Identification

Defendant's probation officer, Michael Moore, testified at the preliminary hearing that he called the Turlock Police Department after he recognized a newspaper photograph related to the Quik Stop murder. Moore was shown the surveillance tape and still images from the video. He told police that the shooter's posture, gait, and voice all resembled defendant. Defendant moved to exclude Moore's testimony from trial, arguing it would be irrelevant and unduly prejudicial. The court denied the motion, with the prosecution's assurance that the jury would not learn defendant was on probation.

Before Moore was called to testify, he informed the prosecutor that he recognized one of the seated jurors. The juror was an acquaintance who might know Moore's occupation. Defendant refused to agree to a stipulation in lieu of Moore's live testimony, and the prosecution decided not to risk a mistrial by calling Moore as a witness.

Later, defendant called Detective Olson and questioned him about the surveillance video. When asked why he had watched the video on one

Defendant now complains "the identification statements of Michael Moore [related] through the testimony of Detective Olson" were hearsay, admitted in violation of due process and the confrontation clause. (See Crawford , supra , 541 U.S. 36 , 124 S.Ct. 1354 .) Although Olson did not relate a hearsay statement attributable to Moore, defendant argues the informant's identification of him was obvious to jurors. Citing various federal appellate decisions, he argues Crawford extends to "testimony communicating the substance of an absent declarant's statements ... even when there is no verbatim account of the declarant's testimonial hearsay." (See Ocampo v. Vail (9th Cir. 2011) 649 F.3d 1098 , 1110 ; Ryan v. Miller (2d Cir. 2002) 303 F.3d 231 , 250-251.)

Assuming without deciding that the claim was preserved, and a legitimate application of the hearsay rule, any error in the admission of Olson's testimony was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 .) An implied

The court has discretion to exclude evidence under Evidence Code section 352"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." " ' "Prejudice" as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption " 'substantially outweigh' " the probative value of relevant evidence, a section 352 objection should fail. [Citation.]

3. Character Evidence

Defendant asserts the court erred in allowing Kenneth A.'s mother to testify about her son's untruthfulness. Kenneth, who testified for defendant, said Tory had bragged in juvenile hall that he had committed the Quik Stop murder. The prosecution called Kenneth's mother in rebuttal. Regina A. had raised her son until he was 13. During the ensuing six years, they had only infrequent contact when she visited Kenneth in juvenile hall or county jail. Regina thought she knew her son well, although not "real well." She knew his family members but not many of his friends or neighbors. Over defendant's objection, the court allowed Regina to give an opinion that sometimes Kenneth was truthful and sometimes he was not. She said he had been known to lie at times to gain an advantage for himself. Defendant also objected unsuccessfully when Regina was asked whether Kenneth had a reputation among family members for truthfulness. She responded, "they probably would think that he wasn't truthful."

Evidence of a witness's character for truthfulness, or its opposite, is relevant to credibility and admissible for this purpose. ( Evid. Code, § 780, subd. (e).) This evidence may be shown by "(a) evidence of specific instances of conduct, (b) opinion evidence, or (c) reputation evidence." (Simons, Cal. Evidence Manual (2018) Witnesses, § 3:49, p. 288.)

Defendant concedes evidence of Kenneth A.'s character for truthfulness was admissible but argues there was insufficient foundation for Regina's

"[A] trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." ( People v. Moon (2005) 37 Cal.4th 1 , 30, 32 Cal.Rptr.3d 894 , 117 P.3d 591 ( Moon ).) Instructions that highlight specific evidence, or invite the jury to draw inferences favorable to one side, are considered argumentative and generally should not be given. ( People v. Earp (1999) 20 Cal.4th 826 , 886, 85 Cal.Rptr.2d 857 , 978 P.2d 15 ; Mincey , supra , 2 Cal.4th at p. 437, 6 Cal.Rptr.2d 822 , 827 P.2d 388 .)

In directing the jury to examine the testimony of certain prosecution witnesses with greater skepticism, defendant's proposed instruction was argumentative. It implied that witnesses had not only used drugs but were

Instructions on lesser included offenses are not constitutionally required in a noncapital case. ( People v. Breverman (1998) 19 Cal.4th 142 , 165, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 .) Nevertheless, defendant contends the court's failure to instruct on section 246.3, subdivision (a) violated due process and denied him a reliable penalty determination. He argues that, in a capital case, due process requires instructions on all lesser included offenses supported by the evidence. (See Beck v. Alabama (1980) 447 U.S. 625 , 637-638, 100 S.Ct. 2382 , 65 L.Ed.2d 392 .) The constitutional concerns in Beck v. Alabama are not implicated when, as here, substantial evidence does not support an instruction. ( People v. Romero (2008) 44 Cal.4th 386 , 404, 79 Cal.Rptr.3d 334 , 187 P.3d 56 ( Romero ).) Moreover, defendant's federal authorities discuss the importance of instructing on lesser noncapital offenses that are necessarily included within a capital charge. (See Beck , at pp. 634-637, 100 S.Ct. 2382 .) Here, defendant's claim centers on a lesser offense to an auxiliary charge that is entirely separate from his first degree murder conviction.

5. Prosecutorial Misconduct

Defendant argues the prosecutor committed misconduct by trivializing the reasonable doubt standard during the guilt phase closing argument. The claim fails.

Before closing arguments, the jury heard numerous instructions including one defining reasonable doubt ( CALJIC No. 2.90 ). Referring back to this instruction, the prosecutor made the following statements in his rebuttal argument: "You have got an instruction about reasonable doubt. ... Reasonable doubt is not all possible doubt. It has to be based on reason. [¶] If I take this quarter and flip it in the air over a hard surface, it's possible it could land on heads or it's possible it could land on tails. It's reasonable either way. It's reasonable because it's based on physics, logic and reason. [¶] But if I flip this coin up in the air and expected it to land smack dab on its side and stay standing still, is it possible? Sure, it's possible. Anything is possible, but is it reasonable?" The court overruled defendant's objection that this argument misstated the reasonable doubt standard.

"The case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard." ( Centeno , supra , 60 Cal.4th at p. 667, 180 Cal.Rptr.3d 649 , 338 P.3d 938 .) We have generally discouraged

The court and prosecutor expressed concern that it would be error to proceed in

The defense also urges statutory error. Section 977, subdivision (b)(1) states that in all felony cases, "the accused shall be personally present ... during those portions of the trial when evidence is taken before the trier of fact," unless he has executed a written waiver of that right in open court. Section 1043 generally provides that a felony defendant must be personally present at trial except that a defendant's absence will not prevent trial from continuing to verdict in: "(b) ... [¶] (1) [a]ny case in which the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom[, or] [¶] (2) [a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent."

"Thus, when read together, sections 977 and 1043 permit a capital defendant to be absent from the courtroom only on two occasions: (1) when he has been removed by the court for disruptive behavior under section 1043, subdivision (b)(1), and (2) when he voluntarily waives his rights pursuant to section 977, subdivision (b)(1). However, section 977, subdivision (b)(1), the subdivision that authorizes waiver for felony defendants, expressly provides for situations in which the defendant cannot waive his right to be present, including during the taking of evidence before the trier of fact. Section 1043, subdivision

Even assuming the court erred in allowing defendant to absent himself, the error was purely statutory. ( Weaver , supra , 26 Cal.4th at p. 968, 111 Cal.Rptr.2d 2 , 29 P.3d 103 ; Jackson , supra , 13 Cal.4th at p. 1211, 56 Cal.Rptr.2d 49 , 920 P.2d 1254 .) Reversal is required only if it is reasonably probable defendant would have obtained a more favorable result absent the error. (See People v. Watson (1956) 46 Cal.2d 818 , 836, 299 P.2d 243 .) Any error in excusing defendant from the day's proceedings was clearly harmless. Defense counsel was well prepared to present the testimony of his witnesses. Defendant's absence occurred during his own case, not that of the prosecution. Defendant was aware of what his witnesses would say. In addition, the court offered the defense an opportunity to recall the witnesses to testify in defendant's presence, and the defense declined the offer.

The court also repeatedly and appropriately instructed the jury not to consider defendant's absence in deciding the case. Defendant now complains the jury might have drawn the damaging inference that he was absent because he had continued to engage in physically dangerous or threatening behavior, but he could have cured any potential harm by requesting a specific instruction. He did not do so. Indeed, lengthy or detailed admonitions may have risked drawing greater attention to defendant's absence. Moreover, some jurors were apparently unsettled by defendant's courtroom outburst. (See

Defendant moved for a mistrial. His attorney expressed concern that jurors had discussed defendant's personality or said they were afraid of him. The court observed that, if jurors were afraid, defendant had "brought that on himself." It denied the motion. Although defendant might seek a new trial if he obtained evidence that the incident tainted the jury, the court found no basis for a mistrial at that time given the jurors' responses. The court invited defense counsel to propose a special jury instruction on the issue if he felt one was necessary.

Defendant came to court in a wheelchair the next day, restrained with chains and wearing a stun belt. He left before the jury was called in. When he returned to court the following Monday, he was out of the wheelchair and wearing a suit but was still restrained with chains and the stun belt. The court concluded restraints were needed because of the violence of defendant's outburst. "I can't restrain him just because ... somebody in the jail or something thinks he should be, but there has to be a reason for it. There certainly was a reason for it on Friday, and I am going to continue to think that there is a reason for it unless someone tells me differently. [¶] But based on what happened Thursday afternoon, he was a danger to the entire courtroom and the staff and the deputies. And so several deputies were bruised and clearly in some pain. So it was necessary for the safety of the entire courtroom, in my opinion, to restrain him on Friday. That's also after consulting the bailiff and the deputies and security because of what happened [on] Thursday."

Before the jury entered the courtroom, the court asked if defendant wanted an instruction telling jurors not to consider the restraints. Defense counsel

Defendant did not object to being restrained. His attorney expressly agreed with the court that "some kind of restraint" was appropriate, although he preferred it be invisible to jurors. Accordingly, defendant "has forfeited his claim to the extent he contends he should not have been restrained at all, or that the stun belt was an inappropriate form of restraint." ( Foster , supra , 50 Cal.4th at p. 1321, 117 Cal.Rptr.3d 658 , 242 P.3d 105 ; see People v. Manibusan (2013) 58 Cal.4th 40 , 85, 165 Cal.Rptr.3d 1 , 314 P.3d 1 .)

Furthermore, the record belies defendant's claim that the court improperly deferred to security personnel in deciding to impose the restraints. It is true that a trial court abuses its discretion if it delegates this decision to law

The trial court's obligation to instruct depends on visibility of the restraints. "In those instances when visible restraints must be imposed the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant's guilt. However, when the restraints are concealed from the jury's view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided." ( People v. Duran , supra , 16 Cal.3d at pp. 291-292, 127 Cal.Rptr. 618 , 545 P.2d 1322 ( Duran ).) Nothing in the record demonstrates that defendant's restraints were visible to the jury . Although the court observed that it could see a handcuff and the outline of the belt from its vantage point on the bench, defense counsel was skeptical

2. Victim Impact Evidence

Simon Francis had been married less than two months when he was murdered. Over defendant's objection, the court admitted a redacted videotape of Francis's wedding during the penalty phase of trial. The prosecutor played a four-minute excerpt, which shows Francis having cake, throwing the bride's garter, and dancing to the song

3. "Gangsta Rap" During Carver's Assault

While describing defendant's assault on Patrick Carver, Lawrence Smith testified that defendant asked a friend "to put on a gangsta rap tape named Dr. Dre." Defendant said, " 'You know how I get when I hear my Dre.' " Once the music was playing, defendant confronted Carver. Defendant now argues the court abused its discretion and violated due process in overruling his objections to this testimony about "gangsta rap." The evidence was relevant and not unduly prejudicial.

The court did not abuse its discretion in allowing the witness's brief reference to "gangsta rap." As we have explained, the court's discretion to exclude evidence under Evidence Code section 352 is somewhat narrower at the penalty phase than at the guilt phase of trial. (See People v. Jablonski (2006) 37 Cal.4th 774 , 834-835, 38 Cal.Rptr.3d 98 , 126 P.3d 938 .) The prosecution is entitled to present a full picture of the circumstances surrounding a defendant's prior criminal acts under section 190.3, factor (b).

"The federal Constitution does not require that the court designate which factors are aggravating or mitigating, or instruct the jury that certain factors are relevant only in mitigation." ( Winbush , supra , 2 Cal.5th at p. 490, 213 Cal.Rptr.3d 1 , 387 P.3d 1187 .) Moreover, the use of restrictive adjectives such as "extreme" and "substantial" in section 190.3 's description of mitigating circumstances does not impermissibly limit the jury's consideration of mitigating factors. ( People v. Rices (2017) 4 Cal.5th 49 , 94, 226 Cal.Rptr.3d 118 , 406 P.3d 788 ; see People v. Jones (2017) 3 Cal.5th 583 , 620, 220 Cal.Rptr.3d 618 , 398 P.3d 529 ( Jones ).)

The death penalty is not unconstitutional for failing to require "findings beyond a reasonable doubt that an aggravating circumstance (other than

Defendant stipulated that in September 1995 he was convicted of being a felon in possession of a firearm.

2. Defense Evidence

Joseph Black and Lawrence Smith gave additional details about defendant's fight with Patrick Carver. Black said the fight concerned Carver's delinquent rent. Carver wanted to brawl, but defendant "got the better of the

Section 987.9 provides a mechanism for indigent capital defendants to seek funds for investigators, experts, and others whose assistance is needed to prepare or present a defense. In ruling on such a request, the court must consider the defendant's "need to provide a complete and full defense." (§ 987.9, subd. (a).) While the court should generally view a motion for assistance with "considerable liberality," it should also order the requested services only if the defendant demonstrates they are reasonably necessary. ( People v. Gonzales and Soliz (2011) 52 Cal.4th 254 , 286, 128 Cal.Rptr.3d 417 , 256 P.3d 543 ; People v. Guerra (2006) 37 Cal.4th 1067 , 1085, 40 Cal.Rptr.3d 118 , 129 P.3d 321 .) The court here acted within its discretion. (See Gonzalez and Soliz , at p. 286, 128 Cal.Rptr.3d 417 , 256 P.3d 543 .)

As defendant recognizes, we have previously upheld orders denying section 987.9 funds for a jury selection expert. (See People v. Box (2000) 23 Cal.4th 1153 , 1182-1185, 99 Cal.Rptr.2d 69 , 5 P.3d 130 ( Box ); People v. Mattson (1990) 50 Cal.3d 826 , 847-848, 268 Cal.Rptr. 802 , 789 P.2d 983 ( Mattson ).) The circumstances here are no more compelling. Mattson and Box both involved the murder of a child, yet the potentially upsetting nature of those crimes did not demand the use of a jury consultant. This convenience store robbery murder was not so unusual or complex that it would be particularly difficult to find impartial jurors. (See Mattson , at p. 848, 268 Cal.Rptr. 802 , 789 P.2d 983 .) Although defense counsel argued he needed help identifying jurors who would be responsive to his mitigation case, it does not appear an expert was reasonably necessary to ensure a fair penalty trial. Defense counsel had extensive trial experience, which included death penalty cases, and was described by the court as highly competent. Experienced attorneys " 'are trained as well as anyone else to select juries.' " ( Box , at p. 1184, 99 Cal.Rptr.2d 69 , 5 P.3d 130 .) Defendant's claim is not supported by Ake v. Oklahoma (1985) 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 , which held

There was no discernable reduction in the extent of voir dire. "We have repeatedly held that 'there is no federal constitutional requirement that a trial court conduct individualized, sequestered voir dire in a capital case.' " ( People v. Jackson (2016) 1 Cal.5th 269 , 357, 205 Cal.Rptr.3d 386 , 376 P.3d 528 .) In any event, considered in context, the court's statements about switching to group voir dire were mere expressions of frustration, and the court took no steps to change the process for later panels. Nor does defendant demonstrate that the statements impermissibly

Nor is there merit to defendant's argument that the trial court should have held an in camera hearing to balance his constitutional rights against the

Although he asserted Aranda / Bruton error below, defendant now concedes the rule "has no application where, as here, the defendant and the codefendant whose incriminating extrajudicial statements are offered ... are not jointly tried." (See People v. Brown (2003) 31 Cal.4th 518 , 537, 3 Cal.Rptr.3d 145 , 73 P.3d 1137 ( Brown ).) In any event, Roseada's statements about washing the car were not " 'facially incriminating' of defendant and so would not run afoul of the rule." ( Id . at p. 537, fn. 5, 3 Cal.Rptr.3d 145 , 73 P.3d 1137 ; see Richardson v. Marsh (1987) 481 U.S. 200 , 207, 107 S.Ct. 1702 , 95 L.Ed.2d 176 .) Defendant now complains the admission of Roseada's statements about washing the car violated his confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 ( Crawford ). Assuming this claim was not

The prosecutor elicited testimony that, the day after the crime, Olson met with a citizen informant who knew defendant. Olson showed this person the surveillance videotape and photographs and played an audiotape from the crime. The prosecutor then asked what the person said about how the photograph looked in relation to defendant. Before Olson could answer, the court interrupted and excused the jury. During the ensuing colloquy, defense counsel objected to the questioning on foundation

The prosecution played the videotape with two guilt-phase witnesses. During the testimony of store owner Henry Benjamin, the prosecutor played footage that simultaneously displayed images from four surveillance cameras. She then showed footage of the crime captured by two additional cameras. A later portion of the videotape was shown during the testimony of customer Richard Faughn, who had found the clerk and called 911. The prosecutor played footage starting when Faughn entered the store and ending when responding officers arrived at the scene. The video was also played during the prosecution's guilt phase closing argument.

Defendant's opening brief on appeal contends the trial court erred by allowing the prosecutor to repeatedly play sounds of the victim dying during the guilt phase of trial. However, apart from his response immediately upon being shot, the victim's sounds were redacted from the video shown in the guilt phase. Defendant's own trial attorney observed that the court had "limited the playing of the [tape] to the video only without the sounds." Accordingly, defendant's claim is at variance with the record. To the extent defendant now argues the court erred in allowing video images of the crime to be shown multiple times, the claim has been forfeited. Defense counsel specifically told the court, "I'm not objecting to the tape or any portion of the tape except the small portion that records the victim's dying." The court addressed that issue by having the sounds removed. Defense counsel questioned the wisdom of showing the crime from multiple camera angles after the video proved to be upsetting to the victim's family members who attended the trial. But he did not raise an objection. In any event, there was no error. The videotape was highly probative evidence of how the crime was committed. Further, because the victim was shot while lying behind a counter, images of the victim sustaining the wounds were not presented.

As to victim photographs, the court's discretion under Evidence Code section 352 to exclude evidence showing circumstances of the crime "is

4. Alleged Instructional Errors

a. Credibility of a Drug Addict

Several prosecution witnesses, including its key witness Tory T., admitted being under the influence of alcohol or drugs at the time of the events they described. At the close of the guilt phase, defendant requested an instruction stating: "The testimony of a drug addict must be examined and weighed by the jury with greater care than the testimony of a witness

" '[A] trial court must give " ' "instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged

The prosecutor's coin-toss analogy here was somewhat problematic because it is commonly linked to the concept of probability and 50-50 odds. Prosecutors should avoid drawing comparisons that risk confusing or trivializing the reasonable doubt standard. Nevertheless, it is not reasonably likely the jury would have misunderstood the prosecutor's argument as suggesting they could decide the case by flipping a coin. This court does not " ' "lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' " ( Brown , supra , 31 Cal.4th at pp. 553-554, 3 Cal.Rptr.3d 145 , 73 P.3d 1137 .)

Here, the prosecutor was attempting to explain the meaning of "reasonable." The jury had been properly instructed on the reasonable doubt standard, and the prosecutor's argument specifically brought their attention to this instruction. (See Cortez , supra , 63 Cal.4th at pp. 131-132, 201 Cal.Rptr.3d 846 , 369 P.3d 521 .) In contrast to some other cases, the prosecutor here did not attempt to quantify reasonable doubt or analogize it to everyday decisions like whether to change lanes in traffic. (See People v. Nguyen (1995) 40 Cal.App.4th 28 , 35-36, 46 Cal.Rptr.2d 840 .) He gave jurors an example of a possible or imaginary, but unlikely, occurrence. The statute defining the burden of proof expressly states

Defendant clearly and expressly waived his right to be present during Friday's proceedings. Nevertheless, he now asserts his waiver was not voluntary because he was offered no meaningful alternatives. The record belies this claim. The court offered to continue the trial until Monday, when defendant would presumably feel well enough to attend, but defendant's expert witness was not available that day. Defendant now faults the court for failing to offer a longer continuance, but he did not seek one below. On the contrary, defendant's attorney repeatedly said he was ready to proceed with the witnesses whose presence he had secured for that day, including an expert neuropsychologist who had traveled to court at some expense. Although defendant was initially agreeable when the court suggested delaying the trial until Monday, he changed his mind after conferring with counsel. After this conference, defendant expressly affirmed that he wanted to return to his cell and for trial to proceed that day in his absence.

We found a waiver voluntary under similar facts in Jackson , supra , 13 Cal.4th 1164 , 56 Cal.Rptr.2d 49 , 920 P.2d 1254 . There, the defendant came to court with a black eye. When the court refused to grant a continuance, the defendant expressed a preference to be absent that day. ( Id . at p. 1209, 56 Cal.Rptr.2d 49 , 920 P.2d 1254 .) He was advised of his right to be present, told of the prosecution witnesses who would be testifying, and reminded he

b. Potential Jury Bias Resulting from Outburst

Defendant next claims the court failed to take appropriate steps to ensure the jury was not biased against him as a result of the incident. He also contends the court erred in denying his motion for mistrial. The court's voir dire and admonitions were adequate, and its mistrial ruling was not an abuse of discretion.

i. Background

The morning after defendant's courtroom outburst, the jury foreperson sent out a note, which stated: " 'To whom it may concern: We the jury are concerned with walking past the Defendant while he is not restrained. Yesterday's event could have caused injury to some jurors that were rushed into the jury room during the incident.' " The court observed that jurors were not in the courtroom during the disruption but might have heard it. At defense counsel's suggestion, the court called for the jury as a group, noting that

ii. Discussion

"In general, the 'court has broad power to maintain courtroom security and orderly proceedings' ( People v. Hayes (1999) 21 Cal.4th 1211 , 1269 [ 91 Cal.Rptr.2d 211 , 989 P.2d 645 ] ), and its decisions on these matters are reviewed for abuse of discretion. ( People v. Stevens (2009) 47 Cal.4th 625 , 633 [ 101 Cal.Rptr.3d 14 , 218 P.3d 272 ].) However, the court's discretion to impose physical restraints is constrained by constitutional principles. Under California law, 'a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.' ( People v. Duran (1976) 16 Cal.3d 282 , 290-291 [ 127 Cal.Rptr. 618 , 545 P.2d 1322 ].) Similarly, the federal 'Constitution forbids the

Defendant also claims the court erred in failing to instruct the jury to disregard his restraints. He asserts the error was compounded because, although the jury had previously been instructed to disregard courtroom security measures, this instruction was not repeated at the penalty phase and the jury was directed to disregard guilt phase instructions that

"The federal Constitution bars victim impact evidence only if it is 'so unduly prejudicial' as to render the trial 'fundamentally unfair.' ( [ Payne v. Tennessee (1991) 501 U.S. 808 , 825, 111 S.Ct. 2597 , 115 L.Ed.2d 720 .] ) State law is consistent with these principles. Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstance of the crime under section 190.3, factor (a)." ( Lewis and Oliver , supra , 39 Cal.4th at pp. 1056-1057, 47 Cal.Rptr.3d 467 , 140 P.3d 775 ; see People v. Pollock (2004) 32 Cal.4th 1153 , 1180, 13 Cal.Rptr.3d 34 , 89 P.3d 353 .)

Victim impact evidence presented through videotape "may be relevant to the penalty determination, because it 'humanize[s] [the victim], as victim impact evidence is designed to do.' ( People v. Kelly (2007) 42 Cal.4th 763 , 797 [ 68 Cal.Rptr.3d 531 , 171 P.3d 548 ].)" ( People v. Dykes (2009) 46 Cal.4th 731 , 784, 95 Cal.Rptr.3d 78 , 209 P.3d 1 ( Dykes ).) It can also sometimes be problematic. (See, e.g., People v. Sandoval (2015) 62 Cal.4th 394 , 442, 196 Cal.Rptr.3d 424 , 363 P.3d 41 .) We have advised trial courts to "exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music, the medium itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of

The videotape here was similar. Although shot by a wedding videographer, its quality resembles a "home movie" more than a professional production. It depicts a real event in the victim's life, shortly before his murder. It is "not enhanced by narration, background music, or visual techniques designed to generate emotion," nor does it "convey outrage or call for vengeance or sympathy." ( Brady , supra , 50 Cal.4th at p. 579, 113 Cal.Rptr.3d 458 , 236 P.3d 312 .) It is a standard wedding video. It humanizes the murder victim but contains nothing that would divert the jury from its proper function. (See Vines , supra , 51 Cal.4th at p. 888, 124 Cal.Rptr.3d 830 , 251 P.3d 943 .) Defendant complains the videotape was cumulative of other evidence because

Defendant raises several challenges to the constitutionality of California's capital sentencing scheme. This court has previously rejected all of these claims, and we do so again. Specifically, we continue to hold the following:

" Section 190.2 adequately narrows the category of death-eligible defendants and is not impermissibly overbroad under the requirements of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution." ( Winbush , supra , 2 Cal.5th at p. 488, 213 Cal.Rptr.3d 1 , 387 P.3d 1187 ; see People v. Wall (2017) 3 Cal.5th 1048 , 1072, 224 Cal.Rptr.3d 861 , 404 P.3d 1209 .) Section 190.3, factor (a), directing the jury's consideration to circumstances of the crime, does not result in an arbitrary and capricious imposition of the death penalty. ( People v. Thompson (2016) 1 Cal.5th 1043 , 1129, 210 Cal.Rptr.3d 667 , 384 P.3d 693 ; see People v. Salazar (2016) 63 Cal.4th 214 , 255, 202 Cal.Rptr.3d 638 , 371 P.3d 161 .) " ' "Defendant's argument that a seemingly inconsistent range of circumstances can be culled from death penalty decisions proves too much. What this reflects is that each case is judged on its facts, each defendant on the particulars of his offense. Contrary to defendant's position, a statutory scheme would violate constitutional limits if it did not allow such individualized assessment of

"The lack of written findings by the jury during the penalty phase does not violate the federal Constitution or deprive a capital defendant of meaningful appellate review." ( Winbush , supra , 2 Cal.5th at p. 490, 213 Cal.Rptr.3d 1 , 387 P.3d 1187 ; see Henriquez , supra , 4 Cal.5th at p. 46, 226 Cal.Rptr.3d 69 , 406 P.3d 748 .)