PEOPLE v. DELGADO (ANTHONY GILBERT)

Respondent’s Brief

Cal.March 25, 2013

SUPREME COURT COPY In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CAPITAL CASE CALIFORNIA, Case No. S089609 Plaintiff and Respondent, Vv. ANTHONY GILBERT DELGADO, Defendant and Appellant. SUPREME COURT Kings County Superior Court Case No. 99CM7335 F L. E LD The Honorable Peter M. Schultz, Judge MAR 25 2613 . McGuire ClerkRESPONDENT’S BRIEF FrankA Deputy KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General WARD A. CAMPBELL Supervising Deputy Attorney General STEPHANIE A. MITCHELL Deputy Attorney General TIA M. CORONADO Deputy Attorney General State Bar No. 252064 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-5232 Fax: (916) 324-2960 Email: Tia.Coronado@doj.ca.gov Attorneysfor Plaintiffand Respondent DEATH PENALTY ~ TABLE OF CONTENTS Page Statement of the Case... ccccccsessssssessscsssesseccsnsescsscsscssesscssssceassecsaeceseeaes 1 Statement Of Facts ......ccecsccscsesscsessessecssecesseeessscesccssssusecssssussassessssveseeesseats 2 A. Guilt Phase ..........cccccccccesseceesseessessscecsssecesreaseneeseeaeens 2 1. The October 1, 1998, Murder of Inmate Frank Mendoza at Corcoran State Prison........ 3 2. The October 20, 1998, Battery of a Correctional Officer and Weapons Possession at Corcoran State Prison................ 6 3. The July 2, 1999, MurderofInmate Kevin Mahoney,Jr., at Corcoran State PYISON .o..c.ceccceccessceescesecsssscsessessesccasesscecssceeseenees 8 4, Defense .........ccecccccssecccssceeeesssessscceseesssssnsacerane 12 B. Case 1n AggravatiOn.........cccsccccsscssessssseessseessseeeseteas 12 1. March8, 1997, Assault of an Officer at High Desert State Prison..........c.ccccsseeseeeees 12 2. March 12, 1997, Battery of an Officer at High Desert State Prison.........ccccccceeeseeeeees 13 3. March13, 1997, Battery of an Officer at High Desert State Prison..........ececeeseeeeeeee 14 4. December18, 1997, Assault of an Officer at High Desert State Prison ............... 15 5. November 13, 1999, Assault of Inmate Lopez and WeaponsPossessionat Corcoran State Prison ...........ccccecesceeseeeeeeees 16 6. November13, 1999, Weapons Possession at Corcoran State Prison.............. 16 7. November14, 1999, Assault of an Officer at Corcoran State Prison........00.....00. 17 8. March 29, 2000, WeaponsPossessionat Corcoran State Prison .........ccccceccscsseeceeeees 18 TABLE OF CONTENTS (continued) Page 9. April 15, 2000, WeaponsPossession at Corcoran State PriSOn ........:.ceseeeseeteseeeseeeees 19 10. April 18, 2000, Battery of an Officerat Corcoran State Prison ...........:ccccsceeseeeeeeeenenees 20 C. Prior Felony Convictions...........::eccseeseesseseeseeeeeeeees 21 D. Case in Mitigation................ecevseeennees“sacenacesnaevstoeneee 22 ATQUMEN1.0... eeecctcecctecneeeseereseeesesesessesseesssessseesetecseecerssesecesessessensesseeneesenas 24 I. The Presence of Correctional Officers During Attorney-Client Conferences Does NotRise to the Level of a Constitutional or State Violation; Appellant Has Failed to Demonstrate That He WasPrejudiced as a Result of the Officers’ Presence...........eececesssseseeseeeeeeeees 24 A. Procedural and Factual Background...........ceccceeeee 24 B. Appellant Waived His Claim That the Officers’ Presence During Attorney-Client Conferences Violated His Right to Counsel; No Error Occurred ...........ecsceeeesceseceeeseseneceecesneeeeseeeseerssensseeeeneees 27 C. The State Statutes That Protect the Right to Confidential Communications With Counsel Were Not Implicated; Appellant is Unable to Show That Any Error Resulted in a Miscarnage Of JUSTICE oo eeeeeseteeenceeeeeeeenneeeesneeenseeseeceaeerseeeeeeees 29 D. The Officers’ Presence During Attorney-Client Conferences Did Not Violate Appellant’s Federal Constitutional Right to Counsel................... 32 1. Overview of Structural Error.........eeeee 33 2. Presumption ofPrejudice...eee 34 3. Appellant is Not Entitled to a Presumption of Prejudice...eeeeeeeeeeees 37 There Was No Realistic Possibility of Injury to Appellant or Benefit to the PLOSCCULION ........cceceeesseeeceneenseneeeecsteesetseeeenees 40 il II. Tl. IV. TABLE OF CONTENTS (continued) Page No Violation of Appellant’s State Constitutional Right to Counsel...eee eeeeeeeeeees 43 Appellant’s Constitutional and Statutory Rights to Be Personally Present Were Not Violated by His Absence from the In Camera Hearing; Appellant is Unable to Demonstrate That His Absence Prejudiced His Case or Denied Him a Fate Trial ooo...cececessececseseseesteeesaeeeceseeseeeeseeeaeeraes 47 1. No Structural Error 0.0... cccsesccesseseeseeseeeeeeeees 48 2. Constitutional and Statutory Rights Not Violated...eecesesseestecsneceeeeseesceseeeeeeaseeeeees 49 3. NO Prequdice 00... cececeeesseesecesceseeesseesseeeeaes 50 Appellant is Estopped from Arguing That the Court Acted in Excess of Jurisdiction ..............::0 52 Appointment of Counsel Who Desired the Presence of Officers During Meetings With Appellant Did Not Result in a Complete Denial Of COUNSE] 0.0... eeeesescesesceseeseessessceseesecssesessessesseseeses 54 Appellant Was Able to Confer Privately With Counsel in the Courtroom Before and During Tradeeecece seeeeeeseeceseseceecceeseensesseesecsesssesesesaeenseenss 54 Murderis Not a Lesser Included Offense of Aggravated Assault by a Life Prisoner ............cccceseeserees 57 The Lying-In-Wait Special Circumstanceis Constitutionaloo...eseeessscseseeseeseeseseeeseesseeesseeessereseeseeaees 62 The Standard Guilt and Penalty Phase Instructions Do Not Undermine the Reasonable Doubt Standard................. 65 ill TABLE OF CONTENTS (continued) Page Appellant Forfeited His Claims That the Court Erred in Admitting Evidence of Two Unadjudicated Offenses and That There WasInsufficient Evidence of Seven Unadjudicated Offenses to Support the Jury’s Use of Those Offenses as Aggravating Evidence; On the Merits, the Court Did Not Err in Admitting Two Unadjudicated Offenses and Sufficient Evidence Supports a Finding That Appellant Committed the Seven Unadjudicated Offenses Beyond a Reasonable Doubt... ccc ecccessceesececeeseceeeeesseeneessssaeseseeeeeaeeeneeesaesneeesneetgees 66 A. B. Legal Principles Regarding Section 190.3, Factor (b) Evidence... eccccesccsseesereeeeectenenersenenes 68 Appellant Forfeited His Claims That the Court AbusedIts Discretion When It Admitted Evidence of the March 8, 1997, and April 18, 2000, Unadjudicated Offenses in the Penalty Phase; On the Merits, the Court Did Not Abuse Its DiSCLEtION ......0..cccssscccessccvscesccececccesecaeceveseeneeesoeeees 69 1. Procedural Background Regarding the March 8, 1997, and April 18, 2000, Unadjudicated Offenses...... 69 a. The March 8, 1997, Assault................ 70 b. The April 18, 2000, Battery..........vee D1 2. Appellant Forfeited His Claims That the -Court Abused Its Discretion WhenIt Admitted Evidence of the March8, 1997, and April 18, 2000, Unadjudicated OFFENSES ....ee eee cceetccccceeesesenneerseseesesneeesenaeee 72 3, On the Merits, the Court Did Not Abuse Its Discretion in Admitting Evidence of the March 8, 1997, and April 18, 2000, Unadjudicated Offenses...........ccccseeeeeeees 73 iv TABLE OF CONTENTS (continued) — Page a. The March8, 1997, Assault Involved the Use or Attempted Use of Force or Violenceor the Threat Thereof ..............ccccceseseseesseeees 73 b. The April 18, 2000, Battery Involved the Use or Attempted Use of Force or Violence or the Threat Thereof ......0.......ccccccesssccesesseeees 76 Admissionof the March 8, 1997, and April 18, 2000, Unadjudicated Offenses Did Not Violate the Federal Constitution...... 79 Appellant Forfeited His Claims That There Was Insufficient Evidence to Support Seven of the Unadjudicated Offenses; On the Merits, There is Sufficient Evidence Appellant Committed the Seven Unadjudicated Offenses Beyond a Reasonable Doubt ........cccccscesscessesseseserscssssescereeres 80 1. Appellant Forfeited His Claims That There WasInsufficient Evidence to Support a Finding He Committed the Seven Unadjudicated Offenses Beyond a . Reasonable Doubt... ccccccecseessecsssesceaees 80 On the Merits, Sufficient Evidence Supports a Finding Appellant Committed the Seven Unadjudicated Offenses Beyond a Reasonable Doubt........0.0cceee 82 a. Sufficient Evidence Supports a Finding That Appellant Committed an Assault on March 8, 1997, and That His Actions Were Not Done in LawfulSelf- Defense 0.0... ceeeeeccccccesssccecececcsseseeseecsece 82 (1) The Evidence and the Court’s Instructions................. 83 TABLE OF CONTENTS (continued) (2) (3) Page Sufficient Evidence of ASSAUIt ......ccccceeeceteseccesssesceeeeeees 84 Acts Not Done in Lawful Self-Defense.............:.000000:2eeee 87 b. Sufficient Evidence Supports a Finding that Appellant Committed a Battery on a Non-Confined Person on March 12, 1997.0... 91 c. Sufficient Evidence Supports a Finding That Appellant Committed a Battery on a Non- Confined Person on March 13, 1997, and That His Actions Were Not Donein Lawful Self-Defense...... 94 (1) (2) )) The Evidence and the Court’s Instructions................. 94 Sufficient Evidence of Battery .....0...eececscessescessenerersees 97 Act Not Done in Lawful Self-Defense ............cceceeeeeeeee eee 97 d. Sufficient Evidence Supports a Finding That Appellant Possessed a Weapon and Assaulted another Inmate on November13, 1999......... 101 (1) The Evidence and the Court’s Instructions............... 101 (2) Sufficient Evidence of (3) vi WeaponPossession............4.. 103 Sufficient Evidence of ANCS¥:10)|104 TABLE OF CONTENTS (continued) Page e. Sufficient Evidence Supports a Finding That Appellant Possessed a Weapon While in Custody on March 29, 2000.0... .cccceeesesessseseeeeee 106 (1) The Evidence............ 106 (2) Forfeiture... ceeeeeeeees 107 (3) No Abuse ofDiscretion......... 108 (4) Sufficient Evidence of WeaponsPossession.............. 109 f. Sufficient Evidence Supports a Finding that Appellant Possessed a Weapon While in Custody on April 15, 2000 0.0.0... ccceseseessseereeeeee 110 (1) The Evidenceand the Court’s Instructions............... 110 (2) Sufficient Evidence of WeaponsPossession.............. 111 g. Sufficient Evidence Supports a Finding That Appellant Committed a Battery on April 18, 2000, and That His Actions Were Not Donein Lawful Self-Defense.... 113 (1) The Evidence and the Court’s Instructions...........0... 114 (2) Sufficient Evidence of a Battery .......eeececssesestessseereeeees 116 (3) Act Not Done in Lawful Self-Defense ..........ceeeeeeeee 116 D. CALJIC No. 8.87 Correctly Instructed the Jury Regarding the Use of Unadjudicated Offenses as Factors in Aggravation ..........:ccsccccesscessssecceeeees 120 vil VI. F, A. B. TABLE OF CONTENTS (continued) Page Appellant’s Constitutional Challenges to the Use of Unadjudicated Offenses as Aggravating Evidence are Meritless ..........sccceecsseeseeeeseeeseeenneees 123 Reversal of Appellant’s Death Sentence is Not Warranted..........ccccceessecccesssecencsseesseserssseeeseneeeeessesenes 125 California’s Death Penalty Schemeis Constitutional........ 130 California’s Death Penalty Scheme is Not Impermissibly Broad........cecceeeseesseeseenteeeeeseeeeers 130 Section 190.3, Factor (a) Appropriately Allows the Jury to Consider Circumstances ofthe CUIMELeeeccccecceeeeseececessneeeeceaseenersesssoeseensecseaneeesaes 130 California’s Death Penalty Scheme and CorrespondingInstructions Set Forth the Appropriate Burden of Proof........cecccceseseeeeeens 131 1. Aggravating Factors Outweigh Mitigating Factors... cecsseeseteeesneeeeeeees 132 2. Burden of Proof or No Burden of Proof...... 132 3. Unanimity of Aggravating Factors.............. 133 4. “So Substantial” Standard...cesses 133 5. Central Determination Whether Deathis the Appropriate Penalty...eee 133 6. Mitigating Circumstances Outweigh Aggravating Circumstances.........ccccscceeeeees 134 7. Standard of Proof and Jury Unanimity of Mitigating Circumstances ..........cecceeeeeeseeees 134 8. Presumption of Life...ceceeeeeeeeeeeeeees 134 The Jury Was Not Required to Make Written Findings......ccecceesesseseeeeescesceeeeceeeseeecseesesseeseeeesenenees 134 The Mitigating and Aggravating Factors Jury Instructions Were Constitutional.............:eeeeenees 135 Vill TABLE OF CONTENTS (continued) Page 1, Restrictive Adjectives in the Description of Mitigating Factors 2.0.0.0... eeeeeeeeeeeseeeeenees 135 2. Deletion of Inapplicable Sentencing FactOrs 0.0.0... eee eeeeeseeseeeeeeerseeuseesseeceeseesneeeenes 135 3. Factors Relevant Only to Mitigation........... 136 F, The United States Constitution Does Not Require Inter-case Proportionality Review of Death Sentences.........:ccescssesssessscceeeessrereeesnesseeereees 136 G. California’s Death Penalty Law Does Not Deny Capital Defendants Equal Protection Underthe LOW oooeeeeeeccccsscoeccescosceccecccssssesecsceceecesacsuecessscurrscaesees 136 H. Application of the Death Penalty Does Not Violate International Norms.............c......csseceseceeeess 137 Conclusion. .............cccseeeccececcessececerecuccccecseceeseeceessesteseeseeeeeeeeeesneseessssesessess 138 1X TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 oesccccccceeceseeeeeeeseneeseseseaesenesdeeeeneees 62, 123 Arizona v. Fulminante (1991) 499 U.S. 279 ooeeeececeeteseeseteestseeseeseesscsessneneseessseseeseeseseneesenees 33 Barberv. Municipal Court (1979) 24 Cal.3d 742 ooo. ceccseceseceececessecsseesaseereesseeeseeeenseeespassim Batson v. Kentucky . (1986) 476 U.S. 79 oneeceeeesseecseeenseeeseseseeseesessesensnsssssesecseeseesseeessenees 34 Bell v. Cone | (2002) 535 U.S. 685 oo eeceseeseceeeeeeceeseeeeenessuessnsessesseeessneeesaee passim Blakely v. Washington (2004) 542 U.S. 296 oo..eeececeeeseesseeceeeneeeneesaceseesersseavenaecsseseeseeeresenaes 123 Chapman vy. California (1967) 386 U.S. 18 occ ceeeceeseeeeseteeeereeeseeereecseenesacsessecssuanenssenesass 126 County ofSan Diego v. Gorham (2010) 186 Cal.App.4th 1215 oeeeeesessceesseneeesnsneeeeeeeereseneenee52 Cunningham v. California (2007) 549 U.S. 270 ...ececessessesecsececeeseeceeeecsceeseeateaseesseeneesseeesnecateness 123 Florida v. Nixon (2004) 543 U.S..175 woe eeceseeeseceteseceeseeeceesaecaeeseeseseeateeeeessseeeeeeas 36 Geders v. United States (1976) 425 U.S. 80 .occccecceseeeceessecereeaeesaeesenesaeeseeaeeeeeseseneees 35, 36, 39 Gideon v. Wainwright (1963) 372 U.S. 335 vieceescescessseeeecceceesecsceeseeseesessrtsesesscsetssssesessessrsetes DD Holbrook v. Flynn (1986) 475 U.S. 560 oo. eeeccceeeeeeeeseeeseceeeeseceaeseeaseeeeesevateseenseseeesetaeees 56 In re Andres G. (1998) 64 CalApp.4th 476 uo... cccccccscseccsssessesesseesenes 52, 53, 54, 55 Kentucky v. Stincer (1987) 482 U.S. 730 woeecceccecesesesessessesscseesessescseessesessseesessceseseesecsevees 55 Lockhart v. Fretwell (1993) 506 U.S. 364 ooo ccesecesessecececcsceccsesssesscescsecesssseeecsseessseees 36 Madrid v. Gomez (1995) 889 F.Supp.1146 oo. ccccccccescesesssssscececcesesecessceaessaseaacseens 89 McKaskle v. Wiggins (1984) 465 U.S. 168 oo eeeseessecccssceecseesessescscssssscssssssssecsevsecevaceetaas 33 Mickens v. Taylor (2002) 535 U.S. 162 ce eececccccccssseessesecsecsesesssssesssstevsesscsesevseseees 35, 37 Morris v. Slappy (1983) 461 U.S. ieeccesesesesseseseescsesceesnssessssscsessecsssvsstevenevaceees 39 Nederv. United States (1999) 527 U.S. vive ecccccesscssssccessesssecevsssccssssssaceceettecereese 33, 34, 35 People v. Alexander (2010) 49 Cal.4th 846...ccsscssceccessessecssseraeesserseeaesasens passim People v. Anderson (2001) 25 Cal4th 543 oo cccccccccscsscsecscscscssestsssscssscsevecercessesestevsees 123 People v. Bacon (2010) 50 Cal.4th 1082... eececcssescsescssscsesessesssssssessestessvevsverseracaees 68 People v. Beeman (1984) 35 Cal.3d 547 oo eecccccccscsesccscscssescsesestsststsssscesvececeerseeees 93, 95 People v. Bonilla (2007) 41 Cal.4th 313 occccccccecscsesssscscscsssecevsrsestssevscessetanevatevsees 65 People v. Burgener (2003) 29 Cal.4th 833 ...cccccccccscsscscsesssscssscesstsssecsvevevececsesevsreravacansens 79 People v. Butler (2009) 46 Cal.4th 847 ooceccceseesesseseeesecssssstevstesseessecees 55, 108, 121 x1 People v. Carrington (2009) 47 Cal4th 145 ....cccccscescesseseeseseeeeseesseseseseesseneseneensenenseteneneets 134 People v. Carter (2003) 30 Cal.4th 1166.0...ceceteeeeseeeeesetenensessennensseeenenenenens 133 People v. Castaneda (2011) 51 Cal.4th 1292 occccceesesesereneretereesesensessstesseenssneenenensenes 50 People v. Chance (2008) 44 Cal4th 11640... eccseseeseeeeeeteteeneeeeseens 85, 104, 105, 106 People v. Cleveland (2004) 32 Cal4th 704 oo. .cccccceseeseecnenenerenerecseneesescsnssenessseseeeneeseseees 66 People v. D’Arcy (2010) 48 Cal4th 257 occeceessseereeeeeeteeeeeeenereneees 121, 123, 124, 131 People v. Davis (2009) 46 Cal4th 539 oe. ccecccsscseseseseeeeeseeeeeneeeesseeeensensssenenenessaeeees 136 People v. Dement (2011) 53 Cal4th 1ceececessceseseseseeenenseseseeseeseensneensesesssereesees 124 People v. Demetrulias (2006) 39 Cal.4th bo.ceccccccescseeeesseeeesesceeeseresseretsseesensenensnerersesessees 138 People v. Doolin (2009) 45 Cal4th 390 oo...ccccecsseseeeeeesesseecsenseesnesaseneeesessesereeserreas 121 People v. Dunkle (2005) 36 Cal.4th 861...seesaceseeseeeseeeaceceeeeeeresesseensereees 121, 122 People v. Elliot (2005) 37 Cal.4th 453 ...cecccceseceseeeeeseteeeeeenereenes 130, 132, 133, 135 People v. Ervine (2009) 47 Cal.4th 745 oo... ccccccsseseseseeeeeeseteetnecnesteenererseessesesnseres passim People v. Foster (2010) 50 Cal4th 1301 oo... ec eeecseeseseseneeseteeeeereeseseneens 123, 124, 136 People v. Gonzales (2012) 54 Cal.4th 1234...cc ccceseseeereesetecetseeeeseeetessersassersneeenees passim Xi People v. Gonzales (2011) 52 Cal4th 254ocicccccseessenceeseceseesseeseesaceeeeseeeseessnenees89 People v. Gray (2005) 37 Cal4th 168 oo. ececccesssseeseesseeeseeeseeseeesseeeseeeeseessecssens 121 People v. Gutierrez (2002) 28 Cal.4th 1083 oo... ccccsccsceesesssesseesecseeesscsessesssesssessesseenes 64 People v. Hamilton (2009) 45 Cal.4th 863 oo... ccccscsssscessesssssseseecesesssseseserseesssessecsscsesens 78 People v. Harris (1989) 47 Cal.3d 1047 ooo ecesseessesecescesecesseneesescseseeeesseesesseees 122 People v. Harris . (2008) 43 Cal4th 1269 ooo. cccccccsscccsesensecseessssssseseseenee 50, 55, 56 People v. Howard (2010) S51 Cal4th 15 oocccccsscseseeseceseseseecscssersseseecsessesees 132, 134 People v. Jablonski (2006) 37 Cal4th 774 oo. cccecceescessssseseseeseecsesecsesesssestecseseseseesnescaces 130 People v. Jenkins (2000) 22 Cal.4th 900 oo.ecceeecesecsseesseseesessesscsesescseecesesessenscsseesees 56 People v. Jones (2012) 54 Cal.4th Loeccccsesesssseccsecsscsessessesessessserescsecsesssseseeees 134 People v. Kipp (1998) 18 Cal4th 349 ooocceseneeseteeseesesseesesesestesssstesseeesees 65 People v. Kraft (2000) 23 Cal4th 978 oo. cccccseseseesecseccsscessscsscssssesvsecssesesersseasensees 85 People v. Lara (2010) 48 Cal.4th 216oiccecscssscseeseesscseesecsesesssessesesesecssseees 52, 53 People v. Lee (2011) 51 Cal4th 620 00.ccceseseeseesseeeeeseseesenneees 132, 133, 137 People v. Lewis (2008) 43 Cal.4th 415 ooo cccececseesessccsssssessesstscssssesenes 72, 121, 128 Xili People v. Lindberg (2008) 45 Cal.4th Leccececeeesenenenecesseneseessseesseseensassceterseessnes 137 People v. Livingston (2012) 53 Cal.4th 1145...eesesasseeseeseatarsesensesenaeennccneneess 72, 82 People v. Lomax (2010) 49 Cal4th.cece eee sssessectereesssenseeeensessseeeneratees 132, 133, 134 People v. Lopez (1998) 19 Cal.4th 282 ooo. eee eeesesessessecesseeesesceeseeseesesesseeesseeseeneeas 58 People v. Martinez (2003) 31 Cal.4th 673 .2..ececssesceesesscseseesesesseaseneseeeeseenenenesseeseesaees 108 People v. McCall (2004) 32 Cal.4th 175 oo. .ecceeeesessseteescesecssssaeeeseseesseenecsesenseneeneeessees 35 People v. McDowell (2012) 54 Cal.4th 395 ooo ceceecesssceeessssessessasesseeeesecnensssnenes 133, 135 People v. McKinnon (2011) 52 Cal.4th 610...eecceeseseseesceeesssseesssessresseesseneseesssenneees 128 People v. McKinzie (2012) 54 Cal.4th 1302 o.oo. eeceseseseeeceseseeesecesenscssessssssssseesesseeesenes 66 People v. McNabb (1935) 3 Cal.2d 441 oeceeeeesesseesereeeseeeeseeceneessresseeseesesereseesesessesaes 59 People v. McWhorter (2009) 47 Cal.4th 318 oo... eee ecsccceneeseeeerseeseeseaseeeesstersesssesseeesseeeeas 134 People v. Mendoza (2007) 42 Cal.4th 686 0.0... ccccceccceceessereerseeesseseeesseeseeeecseseseseeneeseens 134 People v. Mendoza . (2011) 52 Cal.4th 1056.0...cc ececeeeeeeteenceeseeceseeeeeeeeeesesasseneseseeeeses 134 People v. Monterroso : (2004) 34 Cal4th 743 ooo... eee seeeecesersecreessseeseeerereeesseeeseseesees 121, 122 People v. Montiel (1993) 5 Cal4th 877 oo... ceccceseecescecneeneeseesseessessseseecssesssissseeesesee 72, 82 X1V People v. Moore (2011) 51 Cal4th 1104 oo.ccccscesceesssscseeeeeseesseeneesseesaeeesseespassim People v. Nakahara . (2003) 30 Cal.4th 705 oo... ceeeceneseeeeeseceeeseeseceeessestereeeeseteaees passim People v. Navarro (2006) 138 Cal.App.4th 146.00. ccccccceseecsecceseeeeesseeesseeeesentesseees 32 People v. Nelson (2011) 51 Cal4th 198 ooocccccseeecsseeseeeesseeseeseseesseseeaees 126, 131 People v. Perry (2006) 38 Cal4th 302 ooo... ceeecsessscesseeseesessseseessseesseenecssteeseeeesess 48 People v. Phillips (1985) 41 Cal.3d 29 ooeeceeceeteeseees beveseccenerserseaceessecaesenseeanesneenie 68 People v. Prettyman (1996) 14 Cal4th 248 ooocccccccscsecseccsececcseccsssesseesassceeessevsreeseseas 93 People v. Prieto (2003) 30 Cal.4th 226 000... cccccccccssssssessscesseecsseeesesscsnseessseesees 136, 137 People v. Ramirez (1990) 50 Cal.3d 1158 oooceseeeeeeeesetessesseeesstseseceesesessesessseeees 109 People v. Ramirez (2009) 45 Cal4th 980 oo. ceccssssesessesseeseeseeseesesscsesecsessssesesesscseees 58 People v. Reed (2006) 38 Cal.4th 1224 oooieccesesseessesssecseesecseeeessstseesscsssessseeseaes 58 People v. Rich (1988) 45 Cal.3d 1036 oooecsceseeeseseeseeseescsecsseseesseeseecscsscssseseasess 29 People v. Robinson (2005) 37 Cal.4th 592 oo.eeccccescscesscssecsscssecsseceesrsesssasssessesssenaee 131 People v. Rocha (1971) 3 Cal.3d 893 oooeccceeeseesesesecseessesecssecscsevsesssssecsaeasens 85, 104 People v, Rogers (2006) 39 Cal4th 826 000. eeeccsessssesesscesecsesseeesesesscsssssssnseseecaevanens 124 XV People v. Silva (1988) 45 Cal.3d 604 oo. ee ee secessecssesesscneeseneesnseneeessecseseeneeeseesenarens 129 People v. Sims (1993) 5 Cal. 4th 405 oo.eecseceseeeeserensensesersneeeseseetsanersrserenseenees 64 People v. Slaughter © (2002) 27 Cal.4th 1187 ..ccccccecessesesseeeeeeneesrerereseeseseeresnennsseenseseees 85 People v. Sloan . (2007) 42 Cal.4th 110ceceecescsesecsssencescseeseeseeseeeenseneneessseneenesseens 62 People v. Smith . (1950) 36 Cal.2d 444 ...ccccccccesssessssssesessssssstssssssssssssessesseeseresteeseen 59 People v. Smithey (1999) 20 Cal4th 936 .cccceeceecesesensesecersseessesecnsesssessenessenesseeeeeees 108 People v. Stevens (2007) 41 Cal4th 182oeccecsecsecseeenesssersesenseeenseeseneenesseees 63, 64 People v. Stitely (2005) 35 Cal.4th 514oeeececeseeeessesseseeereseneseeseeeeseseeserseeses 135 People v. Streeter (2012) 54 Cal.4th 205 ooo. ceecsseceneerseensssseceseeseesesseeeaeenneneespassim People v. Thomas (2011) 51 Cal.4th 449 oooeeceseseseceesereeeeceserseeeeseeeenes passim People v. Thomas (2011) 52 Cal.4th 336 oo.ceee esceseeseseeserseseeseeesecseesssseseseesenesesseeseeaes 68 People v. Thomas (2012) 53 Cal.4th 771 oe.cecceceeeeceserneeeretessseeees 108, 121, 123, 124 People v. Thornton (2007) 41 Cal.4th 391 o.cccccccceesceeceeeeecneeeneeceseesseessesseesesenseraeenes 132 People v. Towler (1982) 31 Cal.3d 105eeeseers tscrcseeseeereeeeneesssesenees 28, 46, 47 People v. Tuilaepa (1992) 4 Cal.4th 569...aueseusesestectsceasenssenensceseasusessoeesensosenseees 72 XVi People v. Tully (2012) 54 Cal.4th 952 occeceeseescseeesesteeserseeesceesseeeseseeveeseneeseessees 68 People v. Valdez (2012) 55 Cal.4th 82... eceeseencesecseeseeseeeeeeseereees 129, 133, 135, 136 People v. Waidla (2000) 22 Cal.4th 690 oo... ceeeccceesccsceeesesseeeeeeeesseeeseeessessesessssesseenaee 50 People v. Wallace (2008) 44 Cal.4th 1032.0... eeccccsesecesceseeecseescsesesesesesesesssseeatenss 47 People v. Ward (2005) 36 Cal4th 186...cee cececesecceseceeceseessateeesaeessssessesseenseeseeee 123 People v. Watson (2008) 43 Cal.4th 652... ceceescccsceseeeeseeeessesseeecsseeeseeesssesssesessesees 124 People v. Whisenhunt (2008) 44 Cal.4th 174occececeeeeseeseeseeseeneeeneceeseeseseeeseeeeenesesessens 68 People v. Williams (2001) 26 Cal.4th 779 occ eccceccsescscecssseseeeeeseesseeeeeeeessseeesseenees 85, 104 Powell v. Alabama (1932) 287 U.S. 45iccecccccccsseceecssecenscesseseaseeesssseeecessnessenseseesens 36, 40 Ring v. Arizona (2002) 536 US. 584eeeseeesecsseceecesessesecseeeseseseecseeessecsesesesneens 123 Rushen v. Spain - (1983) 464 U.S. 114 eeeeeccsecsseeseceseescesssseensseeeseeseeseneseseesteseseees 48 Sullivan v. Louisiana (1993) 508 U.S. 275 wecccceccsccsescccccesscessecessscssesecessescesecesseesecssssssessasers 34 Tuilaepa v. California . (1994) 512 U.S. 967 cccceecececesseesssnecseesesseesesecessecesseeteassetsesscsees 122 Tumeyv. Ohio (1927) 273 U.S. 510 ececeeccceccseessessesseeseeseeesesssseceseeceseesessesseseceeseeass 34 United States v. Cronic (1984) 466 USS. 648 oocccccccscecsseecnseesseesesssseeeeeesessseserase passim XVil United States v. Gonzalez-Lopez (2006) 548 U.S. 140ccccceseeeeseneneeeeseeeseeseeenersatensensatenees 34, 49 United States v. Morrison (1981) 449 ULS. 361 eee ee cesses ce ceeceeseeeteneeseeenenneeeessenseneenenaeaes 40, 41 Vasquez v. Hillery (1986) 474 U.S. 254 weenieasesseaesseaseesceeaeeconscaeeeeesseessesevaes 34 Waller v. Georgia (1984) 467 U.S. 39eccceesesscseesenseecessseerseseseesesseeasessesseeneneneneneeeetats 34 Weatherford v. Bursey (1977) 429 U.S. 545 vecccceeeesceteeecsessseseeseeecsensestessenecseneeseneeeeeees 40, 41 XVill STATUTES Evidence Code § 52D Le eeeeeseesesseseeseserseteescesnaeeaeerstcenensesecstesseesenedeneessaeesaeateaes 30, 31, 32 § O54eeeeseteeseesesceesseeeeesecsareneeeseesassceseesecseeeeseereeeeeeaeeseswee 30, 31, 32 Pen! Code 8 69 eeeeeceeeceeeesesseeseesrecsesersceesnetesesseesaceeesaeeceseessaaeessesseessseeeseesensase 2 § 187, SUDA.(a)oeeee eeesneeeeeeeeateeeeesetseceneesaeessaeeaenees 1, 2,57, 59 § 190.2 eeeseeeesseterseesssecneeeseeseeeesessessetseenesereseaeesaeneeeteeses 63, 130 § 190.2, subd. (2)(3).... ce eeccceceeeeceessceseeseeeceesaceceseeceeaecsseeecseseeseseess 1,2 § 190.2, subd. (a)(15).... eee eeeeeereees seetceseseesevenscesesonsensseasenseensenees 1,2 § 190.3, factor (D)eee ceeeecseeecseceecseeseseeseeseceeeesseeeseesecseseseeaes passim 8 218eeectenetseneteeeseeesaeeeecsecseesesatesecseeeeesecseeseessessseneeseseestens 61 § 240 eeeeeeeeteseescnesseesreesseeseeesecneesesaeesseseeeeessecseeesaeesseeesseaees 84, 104 § 4D eleccseesecseceeeeaeeeeeceecsesesecseeeseesescenensssessseeeseeeseeeseeesseseseses 71, 72 § 245, SUDA. (€)(2) oo. eeeeeceeeeeseeceeseeeseeseeseeseseeeseseesseecseseseeseseceeseeeees 2 § 246 eeecceseeetetsceeeseeessescecacesseeeeeseesseseesaesasecessesssseseeseseseeseeees 59 § SD eeecceeeteesesereescesenaeeeseseaeensesaeeseesensesseseseaeeeseeeseeens 21, 22, 23, 25 § 496, SUDA. (8) ooeeecsceesseecseeeseeeteeseessesecsaseceseecnssesesesnesstssssesseees 21 § O54 ceceesecesseneeseneesseesseeseesseeseesaseesesseseeseeenaesnseesseseseeseeeseess 2,58 § 667, SUBS.(), (€) on. eseeesesscecsectesecnecseeseseesececseeeseceessesesessesesaseeses 1 § 667.5, SUDA. (D)oeeee ccscccssseessceeesseesseseesaeeceauecsssecssstssstievaceesens 2 § 977, subd. (b)(1) «eeeeeese cseecessaseeessesseeesaeseaeecesneeaeeaseeeasessatene 47 § 1043, SUDA. (a) ooeeeceeeeneeenesseeseeseesessescecseeseeeeaecseseseesscasssaees 47 § 117012 oeeeeneneeeeseeeeeeecsessesensssessesesesessecsessessesseeesesessssssnsecenss 1 § 1239, subd.(b)oeeeeeeeeeeessaesescseasansceeceseseessaseseeseatsdstesssssesanees 2 § 4500 occceeeeceeceeeeceseessesseeseeseeseaeeseeeeseseeesessseeseensessenescseess passim § ASOL LS eeeeeeeeceeeeesaeecseesecsecsesesessesecsesecesecaeeeeessncesscsceasess passim § 4502 occcceeneeeenseceeceseeesecsessesseeesessesetsuseceeecatessecsscacscecscssssvacsaes 71 § 4502, SUB. (8) os eeeeeeeeesceseeseeseseceseesesecseseeseesscesecsessscsesseenseens passim § 4502, SUB. (b) onceceeeceeseeseesessesessesecseseessecaeesssesscscscscscsssssaesaes 71 CONSTITUTIONAL PROVISIONS California Constitution article I, § 15occccecesscecvessecesseccsssesacececseseeeeserssecaeessesas 43,47 article VI, § 13 ...ccccecccesccecssssseccsssscesseeseasevscececesssseseeecsseesses 32, 44, 45 X1x OTHER AUTHORITIES CALJIC NO. 1.24 ciccccccccccssssscccsssesecesseecesneeeceeeeeeseesnereseteaseesseeesenees 102, 109, 111 NO. 2.01 vicccccccccssscsesseccsecsseseecssecesseecceceseseaeescesssseeseasecessueessssesseseseenees 65 NO. 2.21.2 cocccccccssccceneeseeeeeereesneeeessenseessecaesneeecaeeeseeeceeneersnseenes 65, 66 NO. 2.22 vicccccccccsssscessccesecsceesecssececsanecssecesceeaecenseaseseseseeecseseeeesaeeeeens 65, 66 NO. 2.27 ciccccccccsssssecescccseessecseceseecesseeceneceseeeieeseeneeseeeseeesseesseseaeeneees 65, 66 NO. 2.51 cieccccccccsscccesscceceeecseeeneecescececaeeseeecnersecneseaeeesaseseseeeesseeensees 65, 66 NO. 2.90 .ocecccccccccccessccceseceseceeececcsenseeeesnersneesereeseeseeesssseeeeeeeesseesenteeeeees 66 NO. 5.5] ceeccccccccesssscsccsssceseesseeceesseeceseseeesseeenseesetieeseseneeees 83, 84,96, 115 NO. 7.37 .cccssccecesssecsscceeseseensecseeeeseacecseesesaeeaeesaseaeense 95, 97, 98, 115, 115 NO. 7.38 ..ccccccccesscceeseceteteeeceseersaeeessneeeaeeess 102, 103, 109, 111, 112, 113 NO. 8.20 vicccccccccccssssscccescesseessccescesseeeeseeesenecesseneesceerseseeeesesesssassnaes 65, 66 No. 8.85, factors (d) and (2) ..... ec eeeeecssseeeeeeseeessesessesesceesseereeeeenees 135 NO. 8.87 ..ccceccccccccsssseceesscescesneeeesenecensneees eeesteceneeeees 120, 121, 122, 124 NO. 9.00 ...cccccccessccecsccesssseessessnecessneceseeesseseaeesccesseatennessesseesesaeenes 83, 104 NO. 9.01 v..cceccccccsssesssceccsceceeceesseeceacenseeesaeeaeesscseesneeesaeeesesueseseess 83, 104 NO. 9.26 ...ccccccccssseesseeesseseesecsseeeecsnecetseeneseeses 83, 84, 96, 115, 116, 117 NO. 9.97 .oeccccccccsssccssseeseeseesseeeseceeseecaseessnesaeseasesseseeesaeeesesaeeseseensaseesenes 61 Historical and Statutory Notes, 47C West’s Ann. Penal Code (2008 ed.) foll. § 246, p. 371 ooeeeeste creeree crate reaeeneeeneeeneeeees 59 XX STATEMENTOF THE CASE In an information filed October 19, 1999, the Kings County District Attorney charged appellant, Anthony Gilbert Delgado, in count I with aggravated assault by a life prisoner on Frank Mendoza(Pen. Code,’ _§ 4500; otherwise knownas assault by meanslikely to inflict great bodily injury by a prisonerserving life sentence); in count II with aggravated assault by a life prisoner on Kevin Mahoney, Jr. (§ 4500); in count III with the murder of Frank Mendoza (§ 187, subd.(a)); in count IV with the murder of Kevin Mahoney,Jr. (§ 187, subd. (a)); in count V with battery on a correctional officer (§ 4501.5); and in count VI with possession of a sharp instrument by a prisoner (§ 4502, subd. (a)). (1 CT 13-16.) It was further alleged as to counts I andII that the assault victims died within a year and a day (a circumstance rendering appellanteligible for the death penalty); as to counts III and IV that appellant committed the murders while lying in wait (§ 190.2, subd. (a)(15)) and committed multiple murders (§ 190.2, subd. (a)(3)) (special circumstances rendering appellant eligible for the death penalty); and as to all counts that appellant suffered two prior felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (d), (e); 1170.12). (Zbid.) The following day, appellant pled not guilty and deniedall allegations. (1 CT 17.) On May 8, 2000, a jury was impaneledto try the case. (8 CT 2313- 2315.) The guilt phase of the trial commenced May 10, 2008. (8 CT 2318.) On May 15, 2000, the jury found appellant guilty on all counts and foundtrueall allegations. (9 CT 2474-2485.) On May17, 2000, the penalty phaseoftrial commenced. (9 CT 2673- 2675.) On March 23, 2000, the jury returned a verdict of death on counts I ' All further undesignated statutory references are to the Penal Code. and IT (§ 4500) and countsIII and IV (§§ 187, subd.(a); 190.2, subd. (a)(3) and (15)). (9 CT 2684-2689.) On June 21, 2000, the court denied the automatic motion to modify the death verdict and sentenced appellant to death on counts I through [V and then stayed the imposition of death on counts I and IT pursuant to section 654. (10 CT 2809-2813, 2824-2825.) The court further imposed a consecutive indeterminate term of 25 yearsto life for each of counts V (§ 4501.5) and VI (§ 4502, subd. (a)), to be served consecutive to appellant’s prior prison sentence. (10 CT 2809-2813, 2824-2827.) Becauseofthe sentences of death, appellant’s case is automatically appealed to this Court pursuantto section 1239, subdivision (b). STATEMENT OF FACTS A. Guilt Phase On December17, 1997, prior to the assault and murders alleged in this case, a Lassen County Superior Court jury found appellant guilty of battery on a nonprisonerbya prisoner (§ 4501.5) and resisting an executive officer my means of force (§ 69). (4 RT 875; 8 CT 2384; People’s Exhibit 88.) On March 4, 1998, the Lassen County Superior Court sentenced appellant to state prison for an indeterminate term of 25 yearsto life under the Three Strikes law for the battery conviction; stayed sentence on the resisting conviction pursuant to section 654; and imposedan additional consecutive year for each of three prior prison terms pursuant to section 667.5, subdivision (b), for a total sentence of 28 years to life. (/bid.) Appellant was eligible for sentencing underthe Three Strikes law because he had twoprior felony convictions for assault with a gun (§ 245, subd. (a)(2)). (4 RT 875; 8 CT 2383; People’s Exhibit 88.) Appellant was serving his Three Strikes sentence when he committed the aggravated assaults, murders, and battery in this case. (4 RT 875-876.) 1. The October 1, 1998, Murder of Inmate Frank Mendoza at Corcoran State Prison On September30, 1998, Correctional Officer Faustino Carmona” conducted a security check and countof all inmates in his section at Corcoran State Prison, including appellant and appellant’s cellmate, Frank Mendoza. (3 RT 537-538.) Around 11:15 p.m., both appellant and Mendozawerelying on their bunks watchingtelevision. (3 RT 539.) Mendoza wasalive. (Jbid.) Around 12:10 a.m. on October 1, 1998, Officer Craig Williams, who wasstationed in the control booth overlookingthe prison cells, heard someoneyell, “Control A Section.” (3 RT 511-512.) Officer Williams looked through the control booth windowsand saw appellantin his cell waving his hands. (3 RT 512.) Officer Williams contacted Officer Carmonaand advised him to respondto appellant’s cell. (3 RT 514-515, 540.) Officer Williams then asked appellant what was wrong, and appellant pointed behind him intothe cell. (3 RT 514.) Officer Williams — could notsee insidethe cell. (/bid.) Shortly thereafter, Officer Carmona approached appellant’s cell. (3 RT 515, 540.) Appellant was standing at the cell door, and Mendoza was facing the back of the cell on his knees between the beds. (3 RT 540-541.) Officer Carmona askedappellant if Mendoza had had a seizure. (3 RT 542.) Appellant did not verbally respond. Appellant walked to Mendoza, lifted Mendozaup by cloth material wrapped around Mendoza’sneck, and dropped Mendozaback to the ground. (3 RT 542-543.) A hissing sound came from Mendoza whenhefell back to the ground. (3 RT 543.) Appellant was calm and quiet. (/bid.) * Unless otherwise noted, all of the witnesses hereafter referred to as “Officer” were correctional officers at either High Desert or Corcoran State Prisons. Mendozawasunresponsive whenofficers entered the cell. (3 RT 554-555.) Various items were tied around Mendoza’s head, neck,andface. (3 RT 583.) A blue pillowcase was over Mendoza’s head, a torn bed sheet wastied around Mendoza’s face and head, a white sock wastied around “Mendoza’s mouth, and a torn bed sheet was tied around Mendoza’s mouth and neck. (3 RT 604-609.) The ligatures weretied tight enough to cause bruising and had to be cut away. (3 RT 604, 609, 656.) In addition to the ligatures, there was writing on the back of Mendoza’s t-shirt. The writing read, “There’s consequencesto everything. He paid his and I’m to pay mine, too. Toro.” (3 RT 580-581, 610-611.) Human excrement wason the floor below Mendoza’s body and numerousitemsincludingstring, torn bed sheets, and crumpled papers were on the floor near the cell door. (3 RT 630, 649.) Appellant voluntarily detailed and reenacted how and whyhekilled Mendoza. (4 RT 705, 723, 727, 733; 8 CT 2370; People’s Exhibits 21-A, 21-B, 38, 38-A, 39, 39-B.) Appellant and Mendoza had been cellmates for approximately a month andhad agreedto be cellmates to avoid having others placed in their cells. (8 CT 2335.) However, appellant had problems with Mendoza from the beginning because Mendoza continually bragged about how he wasanofficer for the Nuestra Familia. (8 CT 2334-2335.) On the morning before appellant killed Mendoza, Mendoza had continued his bragging. (8 CT 2336.) Even before that day, appellant had planned to kill Mendoza and had rehearsed how he would do so numeroustimes. (8 CT 2337, 2346.) Appellant had nothing to lose. (8 CT 2342, 2346.) On thenight of the murder, appellant waited until the night watch passedtheir cell. (8 CT 2337.) Appellant then placed paper underthe cell doorto prevent the door from opening andofficers from intervening. (8 CT 2337, 2349.) He also prepared a wet paper towelin case officers pepper sprayed him. (8 CT 2337.) Mendoza, who wassitting on his bed with his back against the wall watching television, asked appellant what he was doing. (8 CT 2350-2351.) Appellant assured Mendozathat he wasjust “messing around.” (8 CT 2350.) For appellant’s plan to succeed, Mendoza’s back could not be against the wall. Appellant knew that Mendoza wanted to watch a specific news story that evening. (8 CT 2352.) To get Mendoza away from the wall, appellant asked Mendozato changethe television channel to the news. (8 CT 2352; People’s Exhibit 21-A.) Noticing that Mendoza hadto get up from his bed to change the channel, appellant waited until the newsstory was over and then told Mendoza to change the channel to whatever he wanted to watch. (People’s Exhibit 21-A.) This time when Mendoza leaned forward, appellant took a step toward Mendoza, got onto Mendoza’s bed and behind Mendoza, wrappedhis right arm around Mendoza’s neck, used his left hand to tighten his right arm around Mendoza’s neck, and wrapped his legs over Mendoza’sfeet. (8 CT 2339, 2352; People’s Exhibit 21-A.) Mendozastruggled to get away. (8 CT 2352.) Appellant held Mendoza in a chokehold and watchedthe clock displayed on the news station. (8 CT 2353.) After about two minutes, Mendoza defecated and urinated. (/bid.) Still feeling air in Mendoza’sthroat, appellant continued to choke Mendoza. (/bid.) He also continued to watch the clock. (8 CT 2353-2354.) After exactly four minutes and 16 seconds, appellantlet go of Mendoza. (/bid.) Mendoza’s body collapsed onto the floor. (8 CT 2339, 2354.) Appellant was not finished. Appellant grabbed a piece of torn bed sheet and tied it around Mendoza’s neck. (8 CT 2339, 2354.) He waited to see if Mendozawasstill alive. (8 CT 2339.) Hethen got a sock, wrapped itaround Mendoza’s neck, and pulledit as tight as he could. (8 CT 2339, 2355.) Appellant again watched and waited. (8 CT 2355.) Next, in case Mendoza vomited, appellant placed a pillowcase over Mendoza’s head and tied a piece oftorn bed sheet around Mendoza’s neckto hold the pillowcase closed. (8 CT 2340, 2355.) Finally, appellant wrote on the back of — Mendoza’s shirt: “There’s consequences to everything, he paid his and I’Il pay mine. Toro.” (8 CT 2343-2344, 2357, 2365.) Appellant believed that “if [Mendoza] didn’t hear it when he was with us, maybe he’ll hearit now.” (8 CT 2343-2344.) Satisfied that Mendoza wasdead, appellant removed the materials from underthe cell door, watched television, and then got the control tower officer’s attention. (8 CT 2356-2358.) Appellant made a slicing motion acrosshis neck to indicate to the officer that Mendoza was dead. (/bid.) Shortly thereafter, another officer arrived and asked if Mendoza had had a seizure. (8 CT 2359.) Appellant grabbed the bed sheet and pillowcasetied around Mendoza’s head, lifted Mendoza’s head, andthen letit fall back down. (/bid.) Appellant “felt comfortable” with what he had done and believed Mendoza “had it coming.” (8 CT 2356.) 2. The October 20, 1998, Battery of a Correctional Officer and WeaponsPossession at Corcoran State Prison On October 20, 1998, around 3:25 p.m., Officer Prentis Uyeg approached appellant’s cell and ask him if he wanted to shower. (4 RT 736-738.) Appellant stated he did and placed his hands through the food port so Officer Uyeg could handcuff his wrists. (4 RT 741.) After Officer Uyeg placed a handcuff on appellant’s left wrist, appellant ran toward the middle of his cell. (4 RT 741.) Officer Uyeg immediately closed and locked the food port. (4 RT 742.) Appellant then proceeded to coverhis cell door windows with wet paper and bed sheets. (/bid.) When Officer Uyeg asked appellant what was bothering him, appellant replied in a serious tone, “This conversation’s over and I’m takingthis to the next level.” (4 RT 743.) Additional officers responded to extract appellant from his cell. (4 RT 746-747, 759-761, 770-771, 782.) Prior to officers entering appellant’s cell, Officer John Vasquez sprayed pepper spray inside the cell. (4 RT 750.) Appellant rushed toward the cell door with a mattress folded in front of him, forcing the peppersprayout of the cell through the holesin thecell door. (4 RT 748, 750-752.) Subsequently, when four officers entered appellant’s cell, appellant rushed toward the officers. (4 RT 753, 763, 783.) Thefirst officer to enter the cell slipped on a liquid substance on the floor and fell to his knees but he wasable to pin appellant against the wall with his shield. (4 RT 753, 764, 773.) The second officer to enter the cell also slipped andfell against the wall. (4 RT 754.) Officer Eric Mares, the fourth officer to enter appellant’s cell, bent over appellant and tried to place leg restraints on him. (4 RT 754, 784.) Appellant, who had a sharpened weaponinhis hand, reachedoverthe top ofthe shield that held him to the ground and quickly struck Officer Maresin the left shoulder three times. (4 RT 754-755, 765, 773, 775; People’s Exhibit 100.) Following the extraction, Officer Maresfelt a burningpaininhisleft shoulder. (4 RT 789.) He removedhis protective vest and noticed puncture holes onthe left side of his vest and left backside of his jumpsuit. (4 RT 791-792, 794-796.) Officer Mares sustained a shallow laceration to his left shoulder. (4 RT 797.) Also following the extraction, officers located two weaponsinside appellant’s cell. The first weapon waslocated on the ground nearthetoilet, was madeofsharpenedplastic, and was approximately five to five-and-a- half inches long. (4 RT 755-756, 775.) The second weapon waslocated on appellant’s bed, was also madeofsharpenedplastic, and was approximately five and five-eighths inches long. (4 RT 810-811.) Appellant admitted to stabbing an officer during the cell extraction. A couple days earlier, appellant had made two weapons from a plastic cup. (8 CT 2374-2375.) He had a weaponin each hand whentheofficers entered his cell and had placed shampooon the groundin front of the cell door so officers would slip and fall. (8 CT 2375-2376, 2379.) When officers grabbed his arms, appellant wasable to lift his right arm and stab the officer who wasdirectly in front of him. (/bid.) Appellant believed he hit the officer twice. (8 CT 2376.) Also during the scuffle, appellant saw an officer’s protective mask fall off. (/bid.) Appellanttried to stab that officer in the neck but did not have the weaponpositionedcorrectly in his hand. (Ibid.) Appellant did not believe the weapon could havekilled an officer, but thought it could cause serious injury to an officer’s neck or eyesifthe officer’s mask had been removed. (8 CT 2377.) Appellant attacked the officers because he was bored and had nothing to lose. (8 CT 2374, 2376, 2378.) 3. The July 2, 1999, Murder of Inmate Kevin Mahoney,Jr., at Corcoran State Prison On July 2, 1999, around 9:30 a.m., Officer Robert Toddfirst escorted Inmate Kevin Mahoney,Jr., to an individual holding cell before allowing Mahoneyto go onto the exercise yard. (4 RT 878-880, 882.) Officer Todd then escorted appellant to an individual holding cell. (4 RT 881-882.) After both appellant and Mahoney hadbeen searched, they were allowed onto the exercise yard. (4 RT 882, 885, 890.) Appellant and Mahoney were the only inmates on the exercise yard. (4 RT 890.) Around 11:40 a.m., a security alarm soundedfor the exercise yard where appellant and Mahoney had been placed. (4 RT 892.) Officer Todd removed appellant from the exercise yard and placed him in an individual holding cell. (4 RT 895-896.) Appellant’s feet and legs were covered with blood. (4 RT 897.) When Officer Todd went back onto the exercise yard, he saw Mahoneylying face downin a large poolofblood nearthe far corerof the yard. (4 RT 898-899, 922.) Mahoney wasnot breathing and had no pulse. (4 RT 927-928.) Pieces of cloth were tied around his neck and he had numerouslacerations and bruises to his face, head, and body. (3 RT 669-684, 687; 4 RT 899-900, 923, 925-926.) Splattered blood was on the cement wall near Mahoney’s body. (3 RT 687.) A happy face drawn with blood wasalso on the cement wall. (5 RT 991-992.) Officer John Montgomeryalso respondedto the security alarm. (5 - RT 1019.) Onhis wayto the exercise yard, Officer Montgomery passed appellant and asked appellant how he was doing. (/bid.) Appellantstated, “You guys gave methree strikes on some chickenshit fight, so now I’m going to earn mine. I got two now,and I got one moreto go.” (lbid.) Officer Montgomery continued to the exercise yard. (5 RT 1020.) A surveillance camera recorded the murder. (5 RT 1020; People’s _ Exhibit 148.) Appellant voluntarily detailed and reenacted Mahoney’s murder. (5 RT 996-999, 1010, 1012, 1014-1015; People’s Exhibits 144, 144-A, 145-A, 145-B.) | The day of the murder wasthefirst time appellant had been on the exercise yard with another inmate since he had assaulted a correctional officer on October 20, 1998. (9 CT 2406, 2408.) Even though appellant did not know Mahoney,hisintent was to kill him. (9 CT 2412-2413.) For approximately 55 minutes after being put on the exercise yard, appellant and Mahoneywalked the yard peacefully, at times walking next to each other and talking. (5 RT 1024; People’s Exhibit 148.) Appellant eventold Mahoneythat he did not want any problems. (9 CT 2413.) He wanted Mahoneyto believe he wasnot a threat. (/bid.) Appellant launched three separate attacks on Mahoney. (9 CT 2412; People’s Exhibit 148.) Appellant’s first attack occurred while appellant and Mahoney were walking side by side. (People’s Exhibit 148.) Appellant lunged toward Mahoneyandattempted to get his arm around Mahoney’s neck. (9 CT 2429; People’s Exhibit 148.) Unsuccessful, appellant hit and kicked Mahoneyrepeatedly when Mahoneyfell to the ground. (9 CT 2405, 2429; People’s Exhibit 148.) After thefirst attack, appellant continued to walk back andforth on the yard for approximately 12 minutes. (5 RT 1029-1030; People’s Exhibit 148.) Periodically, appellant would stand near Mahoney whowassitting cross-legged on the ground. (5 RT 1029-1030; People’s Exhibit 148.) | Mahoneywasstill sitting on the ground when appellant launched his second attack. (5 RT 1031; People’s Exhibit 148.) This time, appellant used his hard sandal-type shoe to hit Mahoney repeatedly. (9 CT 2439; People’s Exhibit 148.) After the secondattack, appellant walked back and forth on the yard for approximately 27 minutes and periodically stopped near Mahoney. (5 RT 1030; People’s Exhibit 148.) Mahoney continued to sit cross-legged on the ground. (Jbid.) Appellant’s third attack was fatal. This time, while Mahoney wasstill sitting on the ground,appellant wrappedhis arm around Mahoney’s neck, drug Mahoneyinto the corner ofthe yard nearthe toilet, wrapped one leg around Mahoney’slegs, andplacedhis other foot inside the toilet and under the rim to secure his position. (9 CT 2412, 2414, 2416, 2441-2442; People’s Exhibit 148.) Mahoneytried to scratch appellant’s eyes and grab appellant’s crotch. (9 CT 2415.) Appellant continued to choke Mahoney until Mahoney passed out. (9 CT 2412, 2414, 2441-2442; People’s Exhibit | 148.) When appellant believed Mahoney awoke, appellant choked Mahoneyagain forthree to four minutes. (9 CT 2442.) Appellant finally released Mahoney’s body when Mahoneyurinated on himself. (/bid.) Appellantthen ran across the yard,retrieveda t-shirt, tore the shirt into two pieces, and tied the pieces around Mahoney’s neck. (9 CT 2412, 2443; 10 _ People’s Exhibit 148.) Appellant kicked Mahoneyin the head and walked away. (9 CT 2443-2444; People’s Exhibit 148.) Appellant wasnot finished. He repeatedly returned to Mahoney’s body to cause more damage. Appellant kicked Mahoney’s headinto the concrete ground numerous times and kicked Mahoneyin the crotch. (9 CT 2419-2420, 2444: People’s Exhibit 148.) Appellant retrieved anothert- shirt and tied it around Mahoney’s neck. (9 CT 2412, 2416-2417; People’s Exhibit 148.) Appellant’s goal was to cause as much injury to Mahoney’s body as possible. (9 CT 2420.) Finally, appellant dippedhis foot in Mahoney’s blood and drew a happyface on the concrete wall above Mahoney’s body. (9 CT 2454-2455.) Appellant told a chilling account ofwhy he committed the murder and his actions while in prison. According to appellant, he vowed:to commit a murder for eachstrike of his three-strike sentence. (9 CT 2422.) He bluntly told investigators, “I already got two that’s my two strikes. Pm gonna earn each and every one of mystrikes.” (/bid.) Admittedly, committing three murders,one for eachofhis strikes, would not satisfy appellant. (9 CT 2423.) He told investigators, “My whole objective from here to now, now until I die, is to kill and to hurt, to cause as much destruction however, wherever, whenever.” (9 CT 2427.) Appellant desired to commit between 10 and 15 murders. (Jbid.) He declaredthat he would do whatever he could to harm others when he encountered them. (9 CT 2411.) Appellant also explained whyheforced correctional officers to extract him from his cell. Cell extractions gave him the opportunity to have physical contact with officers. (9 CT 2422.) Appellantbelieved a cell extraction was successful if he was able to removeanofficer’s mask and stab or cut the officer. Ibid.) Appellant’s goal during the extractions was to cause harm to the officers. (/bid.) 11 4. Defense Appellantdid not testify and presented no witnesses or evidence on his behalf. B. Case in Aggravation The prosecution presented evidence of unadjudicated criminalactivity by appellant involving the use or attempteduseofforce or violence or the express or implied use of force or violence pursuantto section 190.3, factor (b). 1. March 8, 1997, Assault of an Officer at High Desert State Prison On March8, 1997, while housed in the Administrative Segregation Unit at High Desert State Prison, appellant and his cellmate, Inmate Frutos, covered their cell door windowswith paper and other materials. (6 RT 1217, 1219-1223.) Officers were unable to see inside the cell, and appellant and Frutos repeatedly refused to remove the materials. (6 RT 1222-1223.) Officers planned cell extraction to remove appellant and Frutos from their cell. (6 RT 1222.) Prior to entering the cell, officers deployed pepperspray into thecell multiple times. (6 RT 1224.) Officers followed each deployment of pepper spray with a request for appellant and Frutos to voluntarily submit to being handcuffed and removedfrom the cell. (/bid.) Appellant and Frutos refused to comply. (/bid.) Officers then openedthe cell door approximately four to six inches and discharged two roundsofless-lethal rubber ammunition. (6 RT 1225-1226; People’s Exhibit A-1.) Officers followed the discharge of less-lethal ammunition with a request for appellant and Frutos to voluntarily submit to being handcuffed and removedfrom the cell. (6 RT 1225-1226.) Appellant and Frutos refused to comply. (6 RT 1226.) Officers again openedthe cell door and discharged 12 two more roundsofless-lethal rubber ammunition. (/bid.) Appellant and Frutos again refused to comply. (/bid.) Following appellant and Frutos’ continuedrefusals, eight officers prepared to enter the cell. (6 RT 1227.) However, when officers opened the cell door to discharge two more roundsofless-lethal ammunition before entering the cell, appellant charged toward officers. (6 RT 1237; People’s | Exhibit A-1). Appellant had a mattress held in front of him and physically contacted the officers. (/bid.) 2. March 12, 1997, Battery of an Officer at High Desert State Prison On March 12, 1997, appellant and his cellmate, Inmate Romo, covered their cell door windows. (6 RT 1238.) Officers repeatedly requested that appellant and Romo removethe materials from the windows. (Ibid.) Appellant and Romorefused to comply with the officers’ requests. (Ibid.) In an attempt to see where appellant and Romo werepositioned inside the cell, Officer Ken Dewall placed a Plexiglas shield in frontof the cell door, openedthe foodport, and shineda flashlight into the cell through the food port. (6 RT 1239.) As Officer Dewall was attempting to look inside the cell, two small milk cartons were thrown through the food port. (Ibid.) Both cartonsstruck the Plexiglas shield and a yellowish-brown substance smelling of feces and urine splashed from the cartons onto the Plexiglas shield and Officer Dewall’s right arm, face, and head. (Ibid.) The substance also splashed on Officer Hahn who wasstanding nearby. (6 RT 1240.) Officer Dewall did not see whothrew the cartons through the food port. (6 RT 1257.) After the incident, referred to as a “gassing,” appellant and Romocontinued to refuse to comply, and officers prepared to remove appellant and Romofrom their cell. (6 RT 1240, 1257.) 13 3. March 13, 1997, Battery of an Officer at High Desert State Prison "On March 13, 1997, following the “gassing” and officers’ requests for appellant and Romoto voluntarily submit to being handcuffed and removed from their cell, officers prepared to extract appellant and Romo from the cell. (6 RT 1240.) Priorto entering, officers deployed pepper spray several times through a small opening onthe side of the cell door. (6 RT 1242- 1243.) Each deployment of pepper spray was followed by a request for appellant and Romoto cuff-up and exit the cell. (6 RT 1242-1243.) Appellant and Romorefused to comply. (6 RT 1243.) Officers then discharged two roundsofless-lethal rubber ammunition from a 37- millimeter launcher into thecell, followed by a request to cuff-up and exit the cell. (6 RT 1244.) Appellant and Romoagain refused to comply, and officers repeated the previous sequence with the 37-millimeter launcher two more times. (Jbid.) Before each dischargeof less-lethal ammunition, officers requested that appellant and Romosubmit to being handcuffed and removedfrom their cell. (6 RT 1244.) Appellant and Romorefused. ([bid.) Following appellant and Romos’ continued refusals, six officers enteredthe cell. (6 RT 1245.) Appellant and Romophysically and violently fought with the officers. (/bid.) During the incident, appellant wasableto get on top of Officer Hornbeck, who waslying on his back near the cell door. (6 RT 1246.) Appellant repeatedly hit Officer Hornbeck in the chest. (6 RT 1246.) Officer Dewall then entered the cell with a baton andstruck appellant six times in the upper torso. (6 RT 1246-1247.) Appellant continued to hit Officer Hornbeck. (6 RT 1247) Appellant eventually rolled off Officer Hornbeck, and officers subdued appellant. ([bid.) 14 4. December18, 1997, Assault of an Officer at High Desert State Prison On December18, 1997, appellant and his cellmate, Inmate Garcia, covered their cell door windows and overheadlight with various materials. (6 RT 1268-1269, 1271.) Officers were unable to see insidethe cell, and, after repeated requests, appellant and Garcia refused to removethe material from the windowsandrefused to be voluntarily removed from their cell. (6 RT 1271; People’s Exhibit B-1.) Officers planned a cell extraction. (6 RT 1270.) Prior to entering thecell, officers deployed pepper spray numerous times, followed by requests to removethe material from the windows and to submit to being handcuffed. (6 RT 1280, 1282; People’s Exhibit B-1.) Appellant and Garcia refused to comply. (People’s Exhibit B-1.) Following appellant and Garcia’s continued refusals, officers prepared to enter the cell. (People’s Exhibit B-1.) It was dark inside the cell when officers opened the door. (6 RT 1271; People’s Exhibit B-1.) Officer Steven Schmidt, the first officer to enter the cell, contacted either appellant or Garcia. (6 RT 1271-1273.) Whenthe light was uncovered, Officer Schmidt saw appellant slide out from underthe Plexiglas shield Officer Schmidt was holding and slide underneath a bed bunk. (6 RT 1274.) Appellant kicked Officer Schmidt. (6 RT 1274-1276.) Officer Schmidt | kicked back. (6 RT 1275.) Appellant eventually came out from underneath the bunk. (6 RT 1276.) Before complying, appellant hit Officer Schmidt, and then Officer Schmidt hit appellant. (6 RT 1276-1277.) Appellant was handcuffed and removedfrom the cell. (6 RT 1277; People’s Exhibit B-1.) 15 5. November 13, 1999, Assault of Inmate Lopez and WeaponsPossession at Corcoran State Prison On November13, 1999, Officer Jaime Tovar escorted Inmate Lopez to the shower next to appellant’s cell. (6 RT 1292, 1294, 1298.) As Lopez entered the shower, he turned tohis right and kicked toward appellant’s cell door. (6 RT 1297-1298, 1300.) Officer Tovar looked toward appellant’s cell, saw an object protruding from the side of the food port, pushed Lopez into the shower, and then kicked the object that was protruding from appellant’s cell door. (6 RT 1301.) Officer Tovar’s kick caused the object to break apart. A portion of the object fell to the floor. (6 RT 1302.) The remainder of the object was lodgedin the gap onthe side of the food port. (6 RT 1302.) Officer Tovar grabbed the piece protruding from appellant’s cell door and retrieved the part of the object that had broken off andfallen to the floor. (bid.) The part of the object that fell to the ground was a piece ofplastic fashioned into a sharpened blade. (6 RT 1303-1304.) The part protruding from appellant’s cell door was rolled-up paper that was approximately 12 inches long. (6 RT 1303, 1314-1315.) The sharpened blade had been attachedto the rolled-up paper. (6 RT 1308.) 6. November13, 1999, WeaponsPossession at Corcoran State Prison On November13, 1999, following appellant’s assault on Inmate Lopez, officers searched appellant’s cell. (6 RT 1317-1320.) Officers located a weapon in appellant’s locker. (6 RT 1321.) The weapon consisted of a toothbrush that had been sharpenedinto a spear and attached to a handle made oftightly bound newspaper. (6 RT 1321-1322, 1326, 1328.) 16 7. November 14, 1999, Assault of an Officer at Corcoran State Prison On November14, 1999, correctional officers saw appellant throwing his television againsthis cell wall and floor, breaking it into small pieces. (6 RT 1336-1338.) Officers were concernedthat appellant could use the broken glass, metal, and plastic to make weapons. (6 RT 1338, 1342.) Shortly thereafter, officers requested that appellant put his hands through the food port so he could be handcuffed and removed from hiscell. (6 RT 1346.) When officers opened the food port, appellant threw multiple piecesofhis television at officers through the food port. (6 RT 1346- 1347.) At that point, officers were interrupted by another incident. (6 RT 1348.) Whenthey returned to appellant’s cell, appellant had covered his cell door with a sheet, and officers could notsee inside the cell. (6 RT 1348-1349.) Appellant did not respondto officers’ attempts to communicate. (6 RT 1348.) Officers prepared to extract appellant from his cell. (6 RT 1350.) Officers first put a ramming device through the food port to remove the materials covering the cell door. (6 RT 1352; People’s Exhibit L-2.) Officers also administered pepper spray and two pepperspray grenades through the food port. (6 RT 1352-1353.) Appellant wasstill unresponsive. (6 RT 1354-1355.) Officers then attemptedto slide the cell door open, but the door jammedand only opened approximately a foot. (6 RT 1356.) The first extraction team memberplaced his shield in front of the opening. (6 RT 1357.) Appellant threw itemsat, kicked, and hit the shield. (Ibid.) Whenofficers sprayed pepper spray through the small opening, appellant attempted to grab the pepper spray canister. (Ibid.) Finally, when appellant forcibly tried to get outofthe cell, officers were able to grab appellant’s arms and legs and subdue him to the floor. (6 RT 1358.) 17 A subsequent searchof appellant’s cell revealed a cordtied to the doorframe to preventthecell door from opening. (6 RT 1373-1374.) There wasalso a bundle ofitemsat the base ofthe cell door. (6 RT 1375.) 8. March 29, 2000, WeaponsPossession at Corcoran State Prison On March 29, 2000, appellant covered his cell door windowsand requested to talk to Officer Kenneth Pearson. (7 RT 1415.) Officer Pearsontold appellant that he would come back andtalk to appellantlater. (7 RT 1419.) Appellant became upset and stated, “I guess when youtry to program [i.e. follow regulations] you don’t get anywhere. I got more attention when I was causingall the trouble.” (/bid.) Appellant then requestedto be transferred to an outside holdingcell to talk to Officer Pearson. (Ibid.) Officers escorted appellant to a rotunda-holdingcell. (bid.) Oncein the holdingcell, and with his handcuffs removed, appellant placed what appearedto be a piece of paper on the food port. (7 RT 1420.) Appellant told Officer Pearson, who was leaning againsta nearbypillar, the item was “nothing” and sweptit onto the floor.’ (7 RT 1420, 1422-1423.) Appellant and Officer Pearson continued to talk. (/bid.) Appellant wanted aradiofor his cell and becameagitated when Officer Pearson told appellant he could not have a radio because appellant had broken his previous television. (7 RT 1421.) While Officer Pearson continued to talk to appellant, Officer Francisco Mascarenas saw appellant place a weapon on the food port. (7 > A video taken ofthe interaction between appellant and Officer Pearson does not show appellant sweeping an object from the food port onto the floor. (People’s Exhibit F-2.) On this record, it is notclear if Officer Pearson was mistaken about appellant’s actions or Officer Mascarenas began recording sometimeafter appellant swept the object onto the floor. 18 RT 1437-1438.) Officer Mascarenas retrieved a video camera and recorded the interaction between appellant and Officer Pearson. (7 RT 1438.) Once Officer Pearson was finished speaking to appellant and walked away, appellant took the weapon from the food port and putit in his boxer shorts. (7 RT 1441; People’s Exhibit F-2.) Officer Mascarenas turned off the camera and told appellant to give him the weapon. (7 RT 1442.) Appellant threw the weapon into a nearby trashcan, and Officer Mascarenasretrieved the trashcan and placedit in a nearby office. (/bid.) A short timelater, Officer Mascarenas showed Officer Pearson the weapon. (7 RT 1443.) The weapon was approximately six inches long, had a sharpened metal point, and a handle made from tightly rolled paper, string, and an elastic glove. (7 RT 1426, 1431.) Officer Pearson had been unawarethat the weapon wason the food port while he was talking to appellant. (7 RT 1424; People’s Exhibit F-2.) 9. April 15, 2000, WeaponsPossession at Corcoran State Prison ‘On April 15, 2000, Officer William Henderson saw appellant, the sole occupantof Cell 25, make unusual movementsinsidehis cell in the Security Housing Unit. (6 RT 1383-1384.) When Officer Hendersonfirst looked through appellant’s cell door, appellant was standing on a bunk and partially covering the overheadlight fixture with a blanket. (6 RT 1385.) Appellant then went to the sink and then back onto the bunk. (Jbid.) Appellant repeated this sequence two or three times. Each time appellant wason the bunk he reached toward the overheadlightfixture. (/bid.) Officer Henderson notified Officer William Butts. (6 RT 1386.) Officer Butts approached appellant’s cell and asked appellant to removethe blanket from the overhead light. (7 RT 1393.) Appellant removedthe blanket from the light, and officers removed appellant from his cell. ([bid.) 19 A search of appellant’s cell revealed several six-inch long groovescut into the overheadlight fixture and plastic shavings on the grounddirectly below the light. (7 RT 1394-1395.) Officer Butts also located scratch . marks, likely made from sharpening objects, on the left-hand side bunk in the cell. (7 RT 1394.) Officer Butts further searched appellant’s cell. Underneath the blanket on appellant’s mattress were three weapons. (7 RT 1401-1402, 1409.) The weapons wereofvarying lengths, each made of metal and sharpenedeither to a point or on one side. (7 RT 1402-1404.) 10. April 18, 2000, Battery of an Officer at Corcoran State Prison On April 18, 2000, Officer James Gatto notified appellantthat appellant was being movedto a different cell. (7 RT 1459-1461.) Appellant was cooperative and asked for time to get his belongings together. (7 RT 1461.) When Officer Gatto returned twenty minuteslater, appellant said he had changedhis mind, refused to change cells voluntarily, and told Officer Gatto that he would movecells the way he wanted to ~ move. (7 RT 1461-1462.) Officer Gatto obtained a pepper spray canister and deployeda three to five second spray through the food port. (7 RT 1465-1466.) Officer Gatto hadhis right hand on the nozzle andhisleft hand on thebody of the canister. (People’s Exhibit H-2.) While Officer Gatto was spraying the pepper spray, appellant reached through the food port and attempted to grab the pepper spray canister. (7 RT 1465-1466, 1470; People’s Exhibit H-2.) Appellant’s entire arm, up to his shoulder, was outside the cell. (People’s Exhibit H-2.) Officer Gatto quickly stepped out of appellant’s reach. (7 RT 1465-1466, 1470; People’s Exhibit H-2.) ' Officer Gatto immediately attempted to deploy more pepper spray through the food port. (People’s Exhibit H-2.) When he positioned the pepper spray in frontof the food port, appellant again reached through the food port. (7 RT 1469; People’s Exhibit H-2.) This time appellant wasable to 20 grab the pepper spray canister near the nozzle. (Ibid.) Officer Gatto tried to maintain a hold on the canister but after a brief struggle, appellant pulled the canister out of Officer Gatto’s hands andinto the cell. (/bid.) Appellant contacted Officer Gatto’s hand when he grabbedthe canister. (7 RT 1479-1481; People’s Exhibit H-2.) Approximately 40 ounces ofpepper spray remainedin the canister appellant pulled into his cell. (7 RT 1483.) Officers closed the food port, and Officer Gatto retrieved a second pepper spray canister. (7 RT 1471.) While Officer Gatto was retrieving the additional pepperspray, appellant struck the cell window repeatedly with the pepper spray canister he hadinside his cell. (7 RT 1471.) Appellant shattered the window and glass was projected outward onto the floor. (/bid.) Officers placed a shield in front of appellant’s cell door. (7 RT 1471; People’s Exhibit H-2.) Officers again opened the food port and deployed pepper spray into appellant’s cell. (7 RT 1472.) Appellant placed his mattress in frontofthe food port to block the pepper spray. (7 RT 1472; People’s Exhibit H-2.) Whenofficers pulled part of the mattress through the food port and deployed more pepper spray, appellant again reached through the food port and attempted to grab the second pepper spray canister. (7 RT 1472; People’s Exhibit H-2.) Officer Gatto pulled the canister away from appellant’s reach, and appellant continued to grab for the canister. (People’s Exhibit H-2.) Officer Gatto then deployed the pepper spray through a small opening onthe side ofthe cell door. (7 RT 1473.) At that point, appellant requested to be removed from his cell and gave the pepper spray canister to officers through the food port. (7 RT 1474.) C. Prior Felony Convictions Appellant was previously convicted ofpossession of stolen property (§ 496, subd. (a)), possession of a deadly weapon by a prison inmate (§ 4502,subd. (a)), and second degree burglary (§ 459). (7 RT 1504-1505.) 21 D. Case in Mitigation Appellant grew up in a family with eight other siblings. (7 RT 1508.) Appellant’s mother, who died in 1991 from kidney problems, drank while she was pregnantwith appellant and rarely cared for him when he was an infant. (7 RT 1509, 1512, 1514.) Appellant’s sister, Maggie Velez, helped care for appellant and would often find him crying,soiled, and hungry when she came homefrom school. (7 RT 1515.) In addition to neglecting appellant, appellant’s mother hit him with belts, used a broom stick to hit him in the head and make him fall down,” made him kneel onrice, and tied him up and locked him in closets. (7 RT 1519-1520, 1533.) Appellant’s mother treated appellant differently than the other children. (7 RT 1522-1523.) On one occasion, appellant brought food home, and appellant’s mother became upset because she did not wanther children begging for food. (7 RT 1524.) As his punishment, appellant’s mother made him eat everything in the refrigerator. (7 RT 1524.) On another occasion, appellant’s mother believed appellant stole $300 from her purse. (7 RT 1525.) She beat and locked appellant in a closet. (Zbid.) She later found the moneyin the kitchen. (/bid.) All of the incidents of abuse ‘occurred before appellant was seven years old. (7 RT 1526.) Asa teenager and young adult, appellant lived with Velez and her family. (7 RT 1531-1532.) Appellant was never violent. (7 RT 1531- 1533.) Inocencio Diburcio Ortega, appellant’s cousin, last saw appellant whenthey were both either 13 or 14 years old. (7 RT 1538-1539.) Ortega “In rebuttal, James Davis, a private investigator for the defense, testified that he interviewed Valez on January 10, 2000, for approximately an hour. (7 RT 1586-1587.) During the interview, Valez did not state that _ their mother had hit appellant on the head with a broomstick, causing him to fall down onto the ground. (/bid.) 22 lived a few houses away from appellant. (7 RT 1540.) Ortega knew that appellant’s mother had locked appellant in closets when he was younger and that she had hit him with electrical cords and sticks. (7 RT 1540, 1543.) Ortega would often hide appellant in a closet so appellant’s mother could not find him. (7 RT 1542.) Ortega was also aware that appellant’s brothers did drugs and gave appellant glue to sniff. (7 RT 1544-1545.) According to Ortega, appellant would cry for no apparent reason. (7 RT 1546-1547.) Appellant was never violent with Ortega.” (Ibid.) Whenappellant was around 11 years old he lived in Yolanda Perez- Logan’s group home. (7 RT 1556, 1558-1561.) Appellant was unkept, very shy, and had marks on his skin. (Jbid.) During the year and a half appellantlived in the group home,appellant learned to play with other boys his age and wasnotviolent with others. (7 RT 1562-1563.) However, appellant often tore apart his personal belongings when hewasfrustrated. (/bid.) Appellant again lived with Perez-Logan when he wasan adult. (7 RT 1568.) Appellant stayed in the same room as Perez-Logan’s six or seven year old son. (/bid.) At that time, Perez-Logan noticed ligature marks on appellant’s wrists. (7 RT 1569.) Perez-Logan never saw appellant act violently. (/bid.) Mary AnnClare, appellant’s fifth grade teacher, noticed that when appellant wasin her class he had inadequate social skills and would reactin an angry mannerif challenged. (7 RT 1570-1573.) However, appellant would never becomeviolent and his behavior improved over time. ([bid.) > In rebuttal, District Attorney Investigator Randy Ebnertestified that he attempted to interview Ortega. (7 RT 1588-1591.) Onthe day of the scheduled meeting, Ebner was unable to contact Ortega. (7 RT 1589.) Subsequently, when Ebnerfinally contacted Ortega, Ortega stated that he wanted to speak to an attorney before talking to Ebner. (7 RT 1591.) 23 ARGUMENT I. THE PRESENCE OF CORRECTIONAL OFFICERS DURING ATTORNEY-CLIENT CONFERENCES DOES NOT RISE TO THE LEVEL OF A CONSTITUTIONAL OR STATE VIOLATION; APPELLANT HAS FAILED TO DEMONSTRATE THAT HE WAS PREJUDICED AS A RESULT OF THE OFFICERS’ PRESENCE Appellant contends it was error for correctional officers to be present during his conferences with his defense counsel. (AOB 41-80.) Specifically, appellant argues:(1) the court erroneously extended the attorney-client privilege to the correctional officers (AOB 48-52); (2) the presence of officers was a structural error and miscarriage ofjustice that violated his right to counsel under the Sixth Amendmentandthe state Constitution (AOB 52-66); (3) his absence from the in camera hearing during which the prosecutor, defense counsel, and court agreed to have officers present during appellant’s conferences with counsel violated his due process andstate statutory rights to be present (AOB 66-74); (4) the court acted in excess ofjurisdiction when it extendedthe attorney-client privilege to include correctional officers (AOB 74-75); (5) the appointment of counsel who requested the presence ofofficers during conferences with appellant constituted a complete deprivation of counsel (AOB 76-78); and (6) the presence ofofficers violated the right to be presentat trial (AOB 78- 79). Respondentdisagrees. A. Procedural and Factual Background On August 6, 1999, prior to appellant’s arraignment, the court held an in camera hearing. (RTIC°; CTPP 217.) The Honorable John G. O’Rourke, © “Reporter’s Transcript of In Camera Proc. (Capital Case)” occurring on August 6, 1999, and consisting of seven pages (pages 15-21) will be referred to as “RTIC.” 24 prosecutors Chris Gularte and Shane Burns, District Attorney Investigator Rick Bellar, prospective defense counsel DonnaTarter, and Corcoran State Prison Correctional Officers Martinez and Kaszap werepresentat the hearing. (RTIC 17.) Appellant wasnot. Duringthe brief hearing, Gularte indicated that appellant was very dangerous; he had killed two people and desired to commit more killings. (RTIC 17.) Gularte further stated that the prosecution was “willing to stipulate that the attorney/client privilege will extend to the transport officers who are present with Donna Tarter.” (RTIC 18.) Gularte informed the court that he and Tarter had discussed the issue with Officers Martinez and Kaszap prior to the hearing and “told them not to disclose any of the communications they hear while they’re in the room with [ ] Tarter and [appellant]” and that any disclosure of the communications would be a violation of a court order. (/bid.) Tarter stated that she was “in agreement with that order.” (Jbid.) Subsequently, the court informed Officers Martinez and Kaszap that any communication between Tarter and appellant was confidential and ordered them not to disclose appellant and Tarter’s conversations. (RTIC 18-19.) Following the court’s order, Tarter requested that the in cameratranscript be sealed andindicated that she was going to speak to appellant. (RTIC 19-20.) Following the in camera hearing, the court held an arraignment hearing. (CTPP 24-38.) With appellant present, the court read the charges filed by the prosecution, and appellant stated he understood the charges. (CTPP 24-29.) The court further advised appellant of his right to counsel. (Ibid.) Appellantindicated that he could not afford an attorney, and the (...continued) 7“Clerk’s Transcript on Record of Preliminary Proceedings” consisting of one volume with 235 pages will be referred to as “CTPP.” 25 court appointed Tarter to represent appellant. (CTPP 29-30.) The court then advised appellantofhis trial rights. (CTPP 30-31.) During a discussion of when the preliminary hearing would be held, appellant indicated that he did not want to waive time and wantedthe matter “done and over with.” (CTPP 31-34.) Whenthe court questioned whether Tarter would have sufficient time to prepare for the preliminary hearing, appellant stated he had “nothing to discuss with [Tarter] before or after” she read the thousands ofpagesofreports and had “no intentions to discuss anything with her.” (CTPP 34.) On behalf of appellant, Tarter entered pleas of not guilty to the charges and deniedall allegations. (CTPP 37.) Tarter represented appellant during the preliminary hearing (CTPP 46-47, 62-192), arraignment (1 RT 2-7), and motion for continuance (1 RT 8-12). Appellant appeared in court but did not object to the officers’ presence during his conferences with Tarter. . During a pretrial conference, Gularte notified the Honorable Peter M. Schultz thatthe prison had requested that two officers, Officers Masters and Close, be admonishednot to disclose any of the conversations they heard while accompanying Tarter during her conferences with appellant. (1 RT 14-15.) In appellant’s presence, the prosecutor and Tarter requested that the court admonish Officers Masters and Close not to disclose any conversations they heard between appellant and Tarter, and the trial court obliged. (1 RT 15-18.) Appellant did not object. Appellant did not object to the presence ofofficers at his conferences with Tarter when he appeared in court at other pretrial conferences. (See 1 RT 55-56, 97.) Prior to the commencementoftrial, the court inquired about security during the trial. (1 RT 113.) Officer Eric Griem stated, “There’s going to be three of us at all times; one to the left and one to the right and one directly behind [appellant]. There will be two armedofficersin the back 26 that are going to be in plain clothes; one outside and one outside the courthouse.” (1 RT 114.) Appellant did not object. B. Appellant Waived His Claim that the Officers’ Presence During Attorney-Client Conferences Violated His Right to Counsel; No Error Occurred Appellant waived any claim that his right to counsel was violated by the officers’ presence during attorney-client conferences. At the in camera hearing, prior to her appointmentas counsel, Tarter indicated her desire to have officers present when she met with appellant. (RTIC 18.) The court accepted her request and admonished Officers Martinez and Kaszap not to disclose Tarter and appellant’s conversations. (RTIC 18-19.) Immediately thereafter, presumably in the accompanimentof Officers Martinez and Kazsap, Tarter met with appellant for the first time. (RTIC 19-20.) Given. that the officers were openly present with Tarter, and the fact that the in camera hearing had just commenced,it is a reasonable inference that Tarter explained to appellant why the officers were accompanying her. Shortly thereafter, at arraignment, knowingthat officers would accompany Tarter to all conferences, appellant accepted Tarter’s appointmentas counsel. (CTPP 29-30.) | Subsequently, at the preliminary hearing on October5, 1999, appellant did not express any displeasure with Tarter’s desire to have officers present during the attorney-client conferences. (CTPP 46-47, 62- 192.) On October 20, 1999, appellant accepted Tarter’s reappointed as counsel. (1 RT 5.) On December16, 1999, after speaking to Tarter “for about a half an houror so,” appellant did not object to the officers’ presence. (1 RT 8-12.) Then, on December22, 1999, in appellant’s presence, the court admonished Officers Masters and Close notto disclose appellant and Tarter’s conversations. (1 RT 15-18.) Appellant did not object. In fact, at no time did appellant object to Tarter’s desire to have 27 officers accompany her when she met with appellant. (1 RT 8-12, 15-18, 55-56, 95-114.) Appellant waived any claim that the officers’ presence violated his right to counsel whenhefailed to object to their presence and accepted Tarter’s appointment as counsel under those circumstances. (See People v. Towler (1982) 31 Cal.3d 105, 122 (Towler).) Even if appellant did not waive his claim of error on appeal,unlike - the cases ofinterference with a defendant’s right to communicate confidentially with counsel that have previously been before this Court (e.g., People v. Alexander (2010) 49 Cal.4th 846, 891 (Alexander) [dismissal not warranted where there was no showingof“realistic possibility that defendant was injuredby,or the prosecution benefited from, the monitoring andrecording of the three-way call” between defendant, his mother, and defense investigator]; People v. Ervine (2009) 47 Cal.4th 745 (Ervine) [dismissal not warranted in case where jail personnel seized defense documents from defendant’s jail cell but did not communicate information to prosecution]; Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber) [dismissal warranted in case where undercoverofficers posing as codefendant in meetings with defense counsel revealed information about defense strategy to prosecution witness, and caused defendants to stop cooperating with defense counsel becauseoffear of infiltration]), this is not a case of governmentinterference of appellant’s right to counsel. | Atthe in camerahearing on August 6, 1999, the prosecutor explained to the court that officers would accompany Tarter to her conferences with appellant, but Tarter wanted the officers present for her protection. (RTIC 18.) The prosecution did not unilaterally request, and the court did not unilaterally order, the officers to accompany Tarter. Any alleged interference to appellant’s right to consult privately with his counsel was not at the government’s hands. 28 | In any event, there simply is no error. In People v. Rich (1988) 45 Cal.3d 1036, 1100, fn. 16, this Court rejected the defendant’s claim that the presenceofan officer violated his right to counsel. Rich held “that the presence of an officer during [defendant’s] interview with Dr. French” did not violate his right to counsel because “[t]he officer was instructed not to repeat anything he heard during the interview” and “[d]Jefense counsel informed the court that they did not object to the procedure because ‘[t]he officer assures us that he has not and will not discuss the occurrence with anyone.’” ([bid.) Like Rich, the officers’ presence during appellant’s attorney-client conferences did not violate appellant’s right to counsel. Tarter requested the officers’ presence. (RTIC 18.) Tarter met with appellant immediately following the in camera hearing. (RTIC 19-20.) Presumably, Officers Martinez and Kaszap accompanied Tarterto this first meeting with appellant. Also presumably, given the officers’ presence, Tarter explained whythe officers were accompanying her. The court admonishedthe officers not to disclose anything they heard during Tarter and appellant’s conferences, and the officers abided by the court’s admonishment. (RTIC 18-19.) There is nothing in the record to suggest otherwise. Onthesefacts, there is no evidencethat appellant’s right to counsel wasviolated. C. The State Statutes That Protect the Right to Confidential Communications with Counsel Were Not Implicated; Appellant is Unable to Show that any Error Resulted in a Miscarriage of Justice Appellant contends that the agreementto have officers present during Tarter and appellant’s conferences erroneously extended the attorney-client. privilege. (AOB 48-52.) He argues that the officers were not third party persons necessary to accomplish the purposeof the legal consultation as 29 contemplated by Evidence Code section 952° (defining “confidential communication”), and therefore the officers’ presence destroyed the confidential nature of his conversations with Tarter. (/bid.) Asa result, he claims that because his conversations with Tarter were not “confidential” under Evidence Codesection 952, he was without recourse to preventthe officers from disclosing those conversations (Evid. Code, § 954). (Jbid.) Respondent disagrees. The officers’ presence did not implicate Evidence Codesection 952. Evidence Codesection 952 defines “confidential” communications between a client and attorney. Evidence Codesection 952 further explains that an attorney-client communication is “in confidence”if the “means” by which the “information” was “transmitted” does not“so far as the client is aware” disclose the information to unnecessarythird parties. The officers were not unnecessary third parties. Under Evidence Code section 952, communications remain confidential between a client and an attorneyif they are disclosed “to no third persons otherthan ... those to whom disclosure is reasonably necessary for the transmission of the information.” Tarter desired the officers’ presence for her protection. (RTIC 18.) Presumably, she was aware of the facts underlying appellant’s charges. Even thoughthe officers were employed by the prison where 8 Evidence Code section 952states: “As usedin this article, “confidential communication between client and lawyer” means information transmitted betweena client and his or her lawyerin the course of that relationship and in confidence by a meanswhich,so far as the client is aware, discloses the information to no third persons other than those whoare present to further the interest of the client in the consultation or those to whom disclosureis reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyerin the course ofthat relationship.” 30 appellant’s crimes occurred, Tarter’s desire to have the officers accompany herto all conferences with appellant madethe officers, in essence, part of the defense team. In this respect, the officers were reasonably necessary for the transmission of the information from appellant to Tarter. Moreover, there is nothing in the record to suggest that appellant did not understand whythe officers were present during conferences with his _ attorney andthat those communications would remain confidential. Indeed, the court admonished Officers Masters and Closenotto disclose appellant and Tarter’s conversations in appellant’s presence. (1 RT 15-18.) Underthe circumstances, appellant was aware the officers accompanied Tarter for her protection and could not disclose anything they heard. With respect to Evidence Codesection 952, “so far as [appellant was] aware,” he did not knowingly disclose any information to unnecessarythird parties. As a result, appellant’s conversations with Tarter retained their “confidential” nature. In any event, Evidence Code section 952 is not implicated because this Court is not presented with the question of whether the conversations between appellant and Tarter madein the presence ofthe officers were or were not “confidential.” The prosecution neverassertedattrial that the officers were third parties who destroyed the “confidential” nature of appellant and Tarter’s communications. There was no question appellant and Tarter’s communications remained confidential. The officers’ presence also did not implicate Evidence Code section 954, Evidence Code section 954 grants a client the privilege “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer....” Again, this Court is not presented with the question of whether appellant could or could not prevent another from disclosing the communications between him and Tarter. The prosecution did not seek to admit any evidence that may havebeen learned 31 by the officers. (See People v. Navarro (2006) 138 Cal.App.4th 146, 157 [noting that “attorney-clientprivilege is a testimonial privilege”that “is merely a rule of evidence”].) Even assuming, arguendo, the agreement to have officers in attendanceat all conferences violated state statues that protect the right to communicate confidentially with counsel (Evid. Code, §§ 952, 954), reversal is unwarranted. The California Constitution provides that no criminal judgment maybesetaside “for any error as to any matter of procedure”unless the errorresulted “in a miscarriage ofjustice.” (Cal. Const., art. VI, § 13; Ervine, supra, 47 Cal.4th a p. 771.) As shown more thoroughly below, appellant has failed to demonstrate even a primafacie case of prejudice resulting from the officers’ presence during conferences between appellant and Tarter. D. The Officers’ Presence During Attorney-Client Conferences Did Not Violate Appellant’s Federal Constitutional Right to Counsel Appellant contendsthat the officers’ presence during his out-of-court and in-court conferences” with counsel violated his Sixth Amendmentright ” Appellant contendsthat officers positioned in the courtroom during trial were “‘circling around’” him and were “between appellant and attorney Tarter” at counsel table. (AOB 48, 60.) The record does not support a finding officers were sitting “between appellant and attorney | Tarter” at counsel table. On May 2, 2000, during a discussion regarding courtroom security, Officer Griem stated, “There’s going to be three of us at all times. Oneto the left and onetothe right and one directly behind.” (1 RT 114.) Duringtrial, after a witness identified appellant and his location in the courtroom,the prosecutorclarified for the record that the witness identified appellant as the person officers were “circling around.” (5 RT 996-997.) Based on these statements, appellant argues that an officer was between him and Tarter at counsel table. However, appellant ignores that immediately prior to the prosecutor’s short-hand way of describing appellant’s location in the courtroom,the witness, Investigator Ebner, stated that appellant was“to the left of defense attorney Tarter, and three | (continued...) 32 to counsel. (AOB 52-63.) Relying on United States v. Cronic (1984) 466 U.S. 648 (Cronic) and Bell v. Cone (2002) 535 U.S. 685 (Bell), appellant argues that the circumstances amountto a structural error for which prejudice is presumed andreversal is automatic. (Ibid.) Respondent disagrees. 1. Overview of Structural Error Arizona v. Fulminante (1991) 499 U.S. 279 (Fulminante) divided ceeconstitutional error into two classes: “trial error’” which “occurred during the presentation of the case to the jury,” the effect of which may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the error ] was harmless beyond a reasonable doubt” (id. at pp. 307-308), and “structural defects,” which “defy analysis by ‘harmless-error’ standards” because they “affec[t] the framework within whichthe trial proceeds”and are not “‘simply anerror in thetrial process itself” (id. at pp. 309-310). Structural errors “‘infect the entiretrial process,’ [citation], and ‘necessarily rendera trial fundamentally unfair,’ [citation]. Put another way,these errors deprive defendants of ‘basic protections’ without which ‘a criminaltrial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment maybe regarded as fundamentally fair.’ [Citation.]” (Nederv. United States (1999) 527 U.S. 1, 8-9 (Neder).) Included inthe list of “structural defects” are the total deprivation of the right to counselattrial (Gideon v. Wainwright (1963) 372 U.S.335), the denial of the rightof self-representation (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8), the denial of the right to counsel of choice (...continued) correctional officersto his rear.” (5 RT 996,italics added.) Onthis record, there is no support for appellant’s claim that an officer was sitting at counsel table between he and Tarter. 33 (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152), the denial of the right to a public trial (Waller v. Georgia (1984) 467 U.S.39, 49,fn. 9), the denial ofthe right to an impartial judge (Tumey v. Ohio (1927) 273 U.S. 510), the existence ofracial discrimination in the selection of the grand jury (Vasquez v. Hillery (1986) 474 U.S. 254) or the petit jury (see Batson v. Kentucky (1986) 476 U.S. 79, 100), and the denial of the right to trial by jury by giving a defective reasonable doubtinstruction (Sullivan v. Louisiana (1993) 508 U.S. 275). (Neder, supra, 527 U.S.at p. 8 [listing structuralerror cases].) . 2. Presumption of Prejudice “As the United States Supreme Court has explained, the right to the assistance of counsel is violated either by (1) the complete deprivation of counselor its equivalent, or (2) the denialofthe effective assistance of counsel. [Citations.]” (Alexander, supra, 49 Cal.4th at p. 888.) [T]ypically, a defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel’s performance was deficient, and that the defendant wasprejudiced,thatis, there is a reasonable probability the outcome would have been different wereit not for the deficient performance. [Citation.] In contrast, a defendantis spared “the need of showing probable effect upon the outcome ... where assistance of counsel has been denied entirely of during a critical state of the proceedings[] ... the likelihood that the verdict is unreliable is so high that a case- by-case inquiry is unnecessary. [Citations.] ([bid.) It is well settled that “‘most constitutional errors can be harmless.’ [Citation.] ‘[I]f the defendant had counsel and wastried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ [Citation.] Indeed, we have foundanerrorto be‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ 34 [Citations.]” (Neder, supra, 527 U.S.at p. 8, criticized on other grounds in People v. McCall (2004) 32 Cal.4th 175, 187, fn. 14.) In Cronic, supra, 466 U.S. at pages 656 to 657, the United States Supreme Court stated: [T]he adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” [Citation.] The right to the effective assistance of counselis thus the right of the accused to require the prosecution’scase to survive the crucible of meaningful adversarial testing.... [I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. (Fns. omitted.) Cronic recognized several categories of “presumed” prejudice. First, prejudice is presumed wherecounselis either totally absentor is prevented by governmentaction from assisting the accused at a “critical stage” of the proceeding. (Cronic, supra, at pp. 659 & fn. 25.) As an example, the court cited Gedersv. United States (1976) 425 U.S. 80 (Geders). In Geders, the United States Supreme Court held “that an order preventing petitioner from consulting his counsel ‘about anything’ during a 17-hour overnight recess between his direct- and cross-examination impinged uponhisright to the assistance of counsel guaranteed by the Sixth | Amendment.” (Geders, supra, at p. 91.) Later Supreme Court cases have affirmed that Geders established a rule of per se reversal. In doing so, however, those cases describe the deprivation of counsel as complete. (See, e.g., Bell, supra, 535 U.S.at p. 696, fn. 3 [noting that cases where prejudice was presumed “involved criminal defendants whohadactually or constructively been denied counsel by governmentaction,” including the order in Geders “preventing defendant from consulting his counsel “about anything” during a 17-hour overnight recess...”]; Mickens v. Taylor (2002) 535 U.S. 162, 166 [prejudice presumed where“assistance of counsel has been denied entirely 35 or duringa critical state of the proceeding,” citing Cronic and Geders]; Lockhart v. Fretwell (1993) 506 U.S. 364, 378 & fn. 2 [same].) Second, a presumption of prejudice is warranted when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” (Cronic, supra, 466 U.S. at p. 659). In commenting on this category of “presumed”prejudice, the Supreme Court hasclarified that “the attorney’s failure must be complete.” (Bell, supra, 535 U.S.at p. 697.) This category is reserved for “situations in which counsel has entirely failed to function as the client’s advocate.” (Florida v. Nixon (2004) 543 U.S. 175, 189.) Third, the court will presume prejudice “where counselis called upon- to render assistance under circumstances where competent counsel very likely could not.” (Bell, supra, 535 U.S.at p. 696, citing Cronic, supra, 466 U.S.at pp. 659-662.) As an example, Cronic cited Powell v. Alabama (1932) 287 U.S. 45 (Powell), where six days before a capital murdertrial, the trial judge appointed“all the members ofthe bar” for purposes. of arraignment. On the day oftrial, a lawyer from Tennessee appeared on behalf ofpersons “interested” in the defendants, but announced that he was unprepared and therefore unwilling to represent the defendants on such short notice. (Cronic, supra, at p. 660.) The Supreme Court reversed the convictions without an evaluation of counsel’s performanceat trial. (/d. at pp. 660-661.) It held that under the circumstances presented, the likelihood that counsel could have performedas an effective adversary was as remote as to have madethetrial inherently unfair. In setting forth these categories of presumed prejudice, Cronic cautioned that “[a]part from circumstances of [the magnitudelisted], there is generally no basis for finding a Sixth Amendmentviolation unless the accused can show howspecific errors of counsel underminedthereliability of the finding of guilt. [Citations.]” (Cronic, supra, 466 U.S.at p. 659,fn. 36 26.) Cronic declined to apply the presumption of prejudice to the facts beforeit: the defendant’s counsel was young;his principal practice wasreal estate; it washis first jury trial; and he had only 25 days to preparefortrial on complex fraud charges. (/d. at pp. 663-666.) The Court rejected an “inference that counsel was unable to discharge his duties” (id. at p. 658) and instead demandedthat the defendant make out a claim ofineffective assistance of counsel by pointing to specific errors and-demonstrating prejudice (id. at pp. 666-667 & fn. 41.) The Supreme Court in Bell also refused to apply a presumption of prejudice where the defendant claimed his counsel failed to “‘mount some 399case for life’” after the prosecution introduced evidence in the sentencing hearing and gave a closing statement. (Bell, supra, 535 U.S.at pp. 696- 697.) There, the Court observed that “[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete.” (/bid.) In Mickens v. Taylor, supra, 535 U.S. 162, the Court refused to apply 399a presumption ofprejudice ““unblinkingly to all kinds of attorney interference. (/d. at p. 174.) A defendantis “spared ... the need of showing probable effect upon the outcome” only where “assistance of counsel has been denied entirely or during critical stage of the proceeding.” (/d. at p. 166.) “[O]nly in ‘circumstances of that magnitude’ do we forgo individual inquiry into whether counsel’s inadequate performance undermined the reliability of the verdict.” (/bid., quoting Cronic, supra, 466 U.S.at p. 659, fn. 26.) 3. Appellant is Not Entitled to a Presumption of Prejudice Appellant speculates that the officers’ presence “prevented open communications between counsel and [appellant], and thus affected 37 strategic decisions at every stage ofthe trial.” (AOB 63.) To the extent appellant contendsthe officers’ presence during his conversations with Tarter constitutes a “circumstance of [the] magnitude” of the complete denial of counsel, he is mistaken. (Cronic, supra, 466 U.S. at pp. 659-662 & fn. 26; Bell, supra, 535 U.S.at p. 696.) Asset forth above, under Cronic and Bell prejudice is presumed only under the most egregious conditions. Prejudice is presumed when the governmentinterferes to the extent there is a complete deprivation of counsel during a critical stage of the proceeding. Thesituation before this Court does not approximatethe rare situation wherea court has heldthat there is prejudice per se based on governmentalinterference that amounts to an actual or constructive complete deprivation of counsel. Assuming interference, it was not a result of any governmentaction. As Bell explained, no prejudice needs to be shown whenthe criminal defendant “had actually or constructively been denied counsel by governmentaction.” (Bell, supra, 535 U.S.at p. 696,fn. 3, italics added.) The presence ofthe officers during appellant and Tarter’s conferences was not a “government action.” Tarter requested the officers’ presence for her protection. (RTIC 18.) Neither the prosecution nor the court orderedthe officers’ to accompany Tarter. At the in camera hearing, the prosecutor merely explainedto the court that the officers would accompanyTarter andthat he and Tarter had already discussed the matter with the officers. (RTIC 17- 18.) The court, accepting Tarter’s desire to have officers accompanyher, admonishedthe officers not to disclose anything they heard between appellant and Tarter. (RTIC 18-19.) Under the circumstances, government action did not cause any interference with appellant’s right to counsel. In addition, assuming interference, the officers’ presence did not result in the actual or constructive “‘complete denial of counsel.’” (Bell, supra, 535 U.S.at p. 695.) Tarter was not precluded from communicating 38 with appellant (e.g., Geders, supra, 425 U.S. 80), from discussing defense strategy, from investigating the case, or from consulting with appellant during any portion ofthe trial. “Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise prepare for trial violates a defendant’s Sixth Amendmentright to counsel.” (Morris v. Slappy (1983) 461 U.S. 1, 11.) There is nothing in the record that the officers’ presence prevented appellant from effectively communicating with his attorney. In fact, appellant never objected to their presence and neither appellant nor Tarter ever advised the court that the officers’ presence was affecting her ability to effectively represent appellant. Under the circumstancesofthis case, the officers’ presence during appellant and Tarter’s conferences underthe assurancethat the officers would not repeat the confidential conversations was not so egregiousthat it amountedto the actual or constructive “‘complete denial of counsel.’” (Bell, supra, at p. 695.) There wasalso not a “breakdownin the adversarialprocess.” (Cronic, supra, 466 U.S.at pp. 659-662; Bell, supra, 535 U.S. at pp. 696- 697.) The presence of officers during appellant’s conferences with Tarter underthe assurancethat the officers would not repeat anything they heard did not “demonstrate that counsel failed to function in any meaningful sense as the Government’s adversary.” (Cronic, supra, at p. 666.) Thereis no evidencethat Tarter “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” (Id. at p. 659.) Finally, counsel was not “called upon to render assistance under circumstances where competentcounsel very likely could not.” (Beil, supra, 535 U.S.at p. 696; Cronic, supra, 466 U.S.at pp. 659-662.) Tarter | requested the officers’ presence. (RTIC 18.) The officers were admonishednot to disclose anything they heard during appellant and Tarter’s conferences. (RTIC 18-19.) Under these circumstances, it cannot 39 be found that Tarter was “called upon to renderassistance ... where competent counsel very likely could not.” (Cronic, supra, at pp. 659-662; cf. Powell, supra, 287 U.S.at pp. 57-58 [out-of-state attorney not prepared to go to trial was appointed bythetrial court to represent defendants on the day oftrial].) No structural error occurred in thiscase. 4. There Was No Realistic Possibility of Injury to Appellant or Benefit to the Prosecution The Sixth amendment guarantees a criminal defendantthe right“to have the Assistance of Counsel for his defense.” This right does not “subsume”an attorney-client privilege. (Weatherford v. Bursey (1977) 429 U.S. 545, 553 (Weatherford).) Nevertheless, the government’s intrusion into confidential communications between a defendant and his counsel may rise to the level of a constitutional violation if that intrusion “created at least a realistic possibility of injury to [the defendant] or benefit to the State....” Ud. at p. 558; Alexander, supra, 49 Cal.4th at pp. 888-889.) Critical factors relevant to this determination include: whether the contents of those communications were presented to the jury; whether any of the prosecution’s evidence was derived from those communications; whether the “prosecuting staff’ even learned of the contents ofthose communications; if so, whether the communications concerned defense trial strategy; and whetherthe intrusion was deliberate or the result of a legitimate law enforcement purpose. (Weatherford, supra, at pp. 554, 556, 558.) . Once a Sixth Amendmentviolation has been demonstrated, then the remedy “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” (United States v. Morrison (1981) 449 U.S. 361, 364.) However, no remedy maybe imposedin the absence of any actual or threatened “adverse effect upon the effectiveness of counsel’s representation or some other 40 prejudice to the defense.” (/d. at p. 365.) Thus, “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate....” ([bid.; Alexander, supra, 49 Cal.4th at pp. 888-889.) Onthis record, there is norealistic possibility of benefit to the prosecution. The governmentdid not intrude into appellant’s confidential communications with Tarter. Tarter requested the officers’ presence. (RTIC 18.) The court admonishedthe officers not to disclose any of Tarter and appellant’s privileged conversations. (RTIC 18-10; 1 RT 15-18.) . There is no evidencethat the officers violated the court’s admonitions. Underthe circumstancesofthis specific case, theofficers were not acting on behalf of the state, but for the benefit of Tarter. The officers were in effect part of the defense team,not the prosecution. (See Weatherford, supra, 429 U.S.at p. 557 [“This is not a situation where the State’s purpose wasto learn what it could about the defendant’s defense plans’”’}.) Appellant nevertheless assets that any knowledgegained by the officers must automatically be “imputed”to the prosecution because they were officers at Corcoran State Prison where the alleged crimes occurred. (AOB 58-59.) However, such an assertion was dismissed in Weatherford, wherein the Court rejected an assumption that law enforcement agents always communicate the content of intercepted communicationsto the prosecutors. (Weatherford, supra, 429 U.S. at pp. 556-557 [rejecting the contention that “federal and state prosecutors will be so proneto lie or the difficulties ofproof will be so great that we must always assume... that an informant communicates what he learns from an encounter with the defendantand his counsel....”’].) As stated above, the officers were present for Tarter’s benefit, not the benefit of the prosecution. More, the officers were admonished,prior to hearing any conversation between appellant and Tarter, that they were not to disclose any of appellant and Tarter’s 4l conversations. (RTIC 18-19; 1 RT 15-18.) This record offers no support for a findingthat the state benefitted from the officers’ presence. Thereis also norealistic possibility of injury to appellant. Appellant makes no attempt to demonstrate how he suffered any actual prejudice from the officers’ presence. Instead,he offers a conclusory statementthat the officers’ presence had “chilling effect” on his “ability to assist counsel” (AOB 60) and “prevented open communications between counsel and her client” that “affected strategic decisions at every stage of the trial (AOB 63). However, in making these specious arguments, appellant fails to identify any portion of the record to support his claim and he hasfailed to demonstrate any prejudice. This Court has declined to presume a “chilling effect” even in cases of egregious and pervasive governmentinterference in the attorney-client relationship. In Ervine, supra, 47 Cal.4th 745, this Court aoerejected the defendant’s argumentthat ““[a]n inevitable consequence’ ofthe intrusion ... was an ‘enduring fear’ concerning the privacy ofhis communications with counsel”andstated, “a defendant’s inability to consult with counselorto assist in his defense must appear in the record. [Citation.]” (Ervine, supra, at p. 769.) Ervine distinguished Barber, supra, 24 Cal.3d 742, where an undercover government agent posing as a codefendantinfiltrated confidential meetings between the defendants andtheir attorneys, and then communicated privileged information to his supervisors. In Barber, the court did not presume prejudice, but instead noted that “the record demonstrated that the petitioners had been prejudicedin their ability to prepare their defense in that they had become‘[d]istrustful of each other and fear[ful] that any one of them might also be an undercoverpolice officer’ and thus refused to participate or cooperate in their defense, which ‘resulted in counsel’s inability to prepare adequately for trial.’” (Ervine, supra, 47 Cal.4th at p. 770, citing Barber, supra, at p. 756.) 42 Here, appellant presents absolutely no evidenceof such chilling effect, and the record before this Court does notjustify a finding that the officers’ presence had a chilling effect on appellant’s ability to assist Tarter or Tarter’s ability to assist appellant. The officers were openly present during appellant and Tarter’s conferences. Appellant was therefore aware of their presence. Presumably, appellant was aware of whythe officers were accompanying Tarter. Tarter, accompanied by Officers Martinez and Kaszap, met with appellant immediately followingthe in camera hearing. (RTIC 19-20.) It is a logical inference that Tarter explained the officers’ presence to appellant. Appellant knew that the court had admonished the officers not to disclose any of appellant and Tarter’s conversations, and that the officers had assuredthe court that they understood and would abide by that order. (RTIC 18-19; 1 RT 15-18.) Although appellant had numerous opportunities to express his concern ordissatisfaction with the officers’ presence, he failed to do so at any time. Accordingly, appellant’s unfoundedassertions of a chilling effect must be entirely disregarded because they lack any evidentiary support. (Ervine, supra, 47 Cal.4th at pp. 769-770.) Because the record demonstratesno realistic possibility of injury to appellant or benefit to the prosecution, appellant’s claim that his Sixth Amendmentright to counsel was violated mustbe rejected. E. NoViolation of Appellant’s State Constitutional Right to Counsel Like the Sixth Amendment, the California Constitution similarly guaranteesthe right “to have the assistance of counsel for the defendant’s defense.” (Cal. Const., art. I, § 15.) Unlike the Sixth Amendment, this guarantee underthe state Constitution “embodies the right to communicate in absolute privacy with one’s attorney.” (Barber, supra, 24 Cal.3dat p. 751.) Nevertheless, the California Constitution further provides that no 43 criminal judgment maybeset aside “for any error as to any matter of procedure”unless the error resulted “in a miscarriage ofjustice.” (Cal. Const., art. VI, § 13.) In Barber, supra, 24 Cal.3d 742, this Court granted the extraordinary remedy of a dismissal solely based on the California constitutional right to counsel. There, 50 protestors, including two undercoverofficers, were arrested for trespassing during a demonstration. (/d. at p. 747.) Over the next two months, the entire group wasjointly represented by the same counsel. (/d. at p. 748.) During these months, the undercoverofficers attended and actively participated in numerousattorney-client conferences, and then relayed the contents of those conferences, including defense strategy, to their supervisors. (/d. at pp. 748-749.) When the undercover officers were finally revealed, the remaining defendants became so distrustful and paranoid of each other that they refused to speak in conferences with their counsel, and even becamesuspicious oftheir counsel’s new student intern. (/d. at pp. 749-750.) Barber concludedthat the “intrusion, throughtrickery,” of the attorney-client relationship amountedto a violation, solely under California law, of the defendants’ right to communicate privately with counsel. (Barber, supra, 24 Cal.3d at pp. 755-756, 759-760.) Barber further concludedthat dismissal without prejudice was the only fair remedy because the defendants’ understandable “lack of cooperation”effectively rendered their counsel unable “to prepare adequatelyfortrial.” (/d. at p. 756.) To the extent appellant relies on Barber to arguethat the officers’ presence during his attorney-client conferences amounts to a miscarriage of justice, Barberis distinguishable. As this Court recognized in Alexander, supra, 49 Cal.4th 846, 44 Barber involvedan application for a pretrial writ of prohibition, while the present case is an appeal from a judgmentof conviction and sentence. Assuch,this case is subject to article IV, section 13 of the California Constitution.... This provision mandatesthat, typically, a defendant having proved error must further establish there exists a reasonable probability he or she would have obtained a more favorable outcomein the trial of guilt or innocence wereit not for the error. [Citation.] In Barber, because we were not considering the reversal of judgment, we had no occasion to consider whethera violation of the state right to counsel resulting from an invasion ofthe attorney-client relationship can be considered a “miscarriage of justice” without a showingofprejudice to the outcome of the trial. (Id. at p. 896.) This case is an appeal from a judgment of conviction and sentence. As such,this case is subjectto article VI, section 13 of the California Constitution. A showingofprejudice must be made for any error to be considered a “miscarriage ofjustice.” Barberis factually distinguishable. Unlike in Barber where there was “antrusion, through trickery” (Barber, supra, 24 Cal.3d at p. 759), in this case there is no “intrusion” of the attorney-client relationship, much less one resulting from “trickery.” Tarter requested that the officers accompany her to meetings with appellant. (RTIC 18.) The court admonished, and the officers understood, that they were notto disclose any of appellant and Tarter’s conversations. (RTIC 18-19; 1 RT 15-18.) The undisputed evidenceis that the officers abided by the court’s order and did not disclose any of appellant and Tarter’s conversations. More, the officers openly accompanied Tarter, and appellant was awareoftheir presence. It cannot be concludedthat appellant’s right to counsel was intruded upon orthat the intrusion was throughtrickery. Barberis also factually dissimilar because the record does not demonstrate that appellant was prejudiced in his ability to prepare his defense. (Barber, supra, 24 Cal.3d at p.756.) After appellant was aware 45 that officers would be present, appellant never objected to the officers’ presence. Appellant never indicated that he was, or had become, distrustful of the officers or that he was deterred from participating in his own defense as the result of the officers’ presence. Any argumentby appellantto the contrary is pure speculation. Appellant failed to makethe record in the court below and only now suggests that the officers’ presence had a “chilling effect” on his “ability to assist counsel.” (AOB 60.) Appellant’s contention must be rejected. (Ervine, supra, 47 Cal.4th at p. 769 [“a defendant’s inability to consult with counselor to assist in his defense must appear in the record”].) Citing Alexander, supra, 49 Cal.4th at p. 896, and this Court’s “acknowledg[ment] that some errors mayrise to the level of a miscarriage ofjustice without regard to the strength of the evidence presentedat trial,” appellant arguesthat the government’s interference in this case is “precisely the type of interference that should be deemed a miscarriageofjustice because it served to deprive appellantof ... the right to counsel.” (AOB 65-66.) Contrary to appellant’s conclusory assertion,“the facts in this case do not involve such an error.” (Alexander, supra, at p. 896.) Unlike the cases that have previously been before this Court regarding the intrusion into privileged and confidential communications (e.g., Alexander, supra, 49 Cal.4th 846; Ervine, supra, 47 Cal.4th 745; Towler, supra, 31 Cal.3d 105), this case does not deal with governmentalintrusion. As explained repeatedly, Tarter requested that the officers accompanyherto her conferences with appellant. (RTIC 18.) Prior to the officers attending any confidential conference between appellant and Tarter, the court admonished the officers, and the officers agreed, not to repeat anything they heard between appellant and Tarter. (RTIC 18-19; 1 RT 15-18.) The officers did not intrude into appellant’s confidential conversations. 46 Like the findings in Alexander, Ervine, and Towler, the record contains no evidence that appellant was prejudiced in the preparation ofhis defense. (Alexander, supra, 49 Cal.4th at p. 897; Ervine, supra, 47 Cal.4th at p. 770; Towler, supra, 31 Cal.3d at p. 771.) Not only is there no evidence that any of appellant and Tarter’s conversations were disclosed to the prosecutors, but appellant offers only conclusory statements on appeal that the officers’ presence interfered with his attorney-client relationship and served to deprive appellant of the right to counsel. Appellant’s unsupported, conclusory statements should be accorded “‘zero weight.’” (Alexander, supra, at p. 897.) Consequently, because there is nothing to support a finding ofa realistic possibility of injury to appellant or benefit to the prosecution, appellant’s claim that the officers’ presence violates his state constitutional right to counsel must be rejected. F. Appellant’s Constitutional and Statutory Rights to be Personally Present Were Not Violated by His Absence from the In Camera Hearing; Appellant is Unable to Demonstrate That his Absence Prejudiced His Case or Denied Him a Fair Trial Appellant contends his federal and state constitutional rights and his state statutory right to be present were violated when he wasnotincluded in the in camera hearing where Tarter indicated her desire to have officers accompanyherto conferences with appellant. (AOB 66-74.) He argues that the in camera hearing wasa critical stage of the proceedings andthat his absence from that hearing wasa structural error requiring reversal. (Ibid.) Respondentdisagrees. A criminal defendant’s right to be personally presentattrial is guaranteed by the Sixth and Fourteenth Amendmentsto the United States Constitution; by article I, section 15 of the California Constitution; and by sections 977, subdivision (b)(1) and 1043, subdivision (a). (People v. Wallace (2008) 44 Cal.4th 1032, 1052.) 47 ““Under the Sixth Amendment, a defendant hasthe right to be personally present at any proceeding in which his appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.”’ [Citation.] ‘Due process guaranteesthe right to be present at any “stage thatis critical to [the] outcome” and where the defendant’s “presence would contribute to the fairness of the procedure.” [Citation.] ““The state constitutional right to be presentattrial is generally coextensive with the federal due processright. [Citations.]” [Citation.] Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant’s personal appearance at proceedings wherehis presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]’ [Citation.] ‘Defendanthas the burden of demonstratingthat his absence prejudicedhis case or denied him fairtrial.’ [Citation.]” [Citation.] (People v. Gonzales (2012) 54 Cal.4th 1234, 1253-1254.) “Erroneous exclusion of the defendantis not structural errorthat is reversibleper se, buttrial error that is reversible only if the defendant proves prejudice. [Citations.]” (People v. Perry (2006) 38 Cal.4th 302, 312, citing Rushen v. Spain (1983) 464 U.S. 114, 118-119.) 1. No Structural Error Appellant contends that his absence from the in camera hearing where Tarter stated her desire to have officers accompany her to conferences with appellant was a structural error becausehis “relationship with attorney Tarter was fundamentally altered and unconstitutionallyrestricted.” (AOB 74.) Appellant appears to argue that his absence from the in camera hearing resulted in a complete deprivation of counsel. This case, however, does not approximate the situation where a court has held that thereis prejudice per se based on an actual or constructive complete deprivation of counsel. As explained above in ArgumentI, subsection D and adopted fully herein, Tarter’s desire to have the officers’ present did not amount to a complete deprivation of the nght to counsel. 48 More, appellant’s absence from the in camera hearing was not a “defect] in the constitution of the trial mechanism, which def[ies] 299analysis by “harmless-error standards’” becausethe error has “consequencesthat are necessarily unquantifiable and indeterminate.’” (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150.) Here, appellant complains that his exclusion from the in camera hearing, which resulted in the presence of officers during his conferences with Tarter, caused his “relationship with attorney Tarter [to be] fundamentally altered and unconstitutionally restricted” and “affected his very first meeting with counsel, and every subsequent conversation or consultation....” (AOB 74.) On the contrary, there is no indication in the record here that the officers’ presence affected appellant and Tarter’s relationship. On this record, where appellant had numerous opportunities to voice any concern he had regarding the officers’ presence, his claim that his relationship with Tarter was affected is without substance, is quantifiable, and is determinate. As a result, no structural error occurred. 2. Constitutional and Statutory Rights Not Violated Appellant further argues that his presence at the in camera hearing bore a reasonable and substantial relation to his full opportunity to defend against the charges and would havecontributedto the fairness of the | proceedings. He claimsthat if he had been present, the court could have fully explained that the “attorney-clientprivilege had been extended to”the officers, thereby ameliorating the chilling effect of the officers’ presence. (AOB 69.) He further argues that if he had been present he could have opposed the agreement, voiced his concernsto the court, and explained to the court that the officers were coworkers of one of the victims and that they were officers at the prison where the charged crimes occurred. (AOB 70-71.) Finally, appellant argues that because the in camera hearing took place immediately prior to arraignment, he had no opportunity to decide 49 whetherto accept Tarter’s appointment as counselor to represent himself. (AOB71.) Appellant’s assertions are speculative. They are inadequate to demonstratethat his presence at the in camera hearing wasa critical stage, would have contributed to the fairness of the procedure, or bore a | reasonably substantial relation to his ability to defend against the charges. (See People v. Castaneda (2011) 51 Cal.4th 1292, 1318; see also Peoplev. Harris (2008) 43 Cal.4th 1269, 1307; People v. Waidla (2000) 22 Cal.4th 690, 742.) In any event, it is reasonable to infer that following the in camera hearing, Tarter explained to appellant the officers’ presence and that the officers were not to disclose any of appellant and Tarter’s conversations. (RTIC 19-20.) In addition, in appellant’s presence, the court admonished Officers Masters and Close not to disclose any conversations between appellant and Tarter. (1 RT 15-1 8.) Appellant also had multiple opportunities to voice his concerns aboutthe officers’ presence. He was before the court numeroustime before trial commenced. Finally, appellant accepted Tarter’s reappointment as counsel knowing that Tarter desired officers to accompany her while in appellant’s presence. (1 RT 5.) Under the circumstances, appellant’s assertions of what he would or could have doneifhe had been present at the in camera hearing are not only speculative, but contrary to the record. 3. No Prejudice Even assuming appellant’s right to be present at the in camera hearing wasviolated, appellant is unable to show that the violation resulted in prejudice or denied him fairtrial. (People v. Gonzales, supra, 54 Cal.4th at pp. 1253-1254.) At the conclusion of the in camera hearing, Tarter indicated that she was goingto talk to appellant. (RTIC 19-20.) Itis a fair assumption that Officers Martinez and Kaszap accompaniedTarterto her 50 first meeting with appellant. It is also a fair assumption that, because the issue of the officers’ presence had just been discussed and Officers Martinez and Kaszap openly accompanied Tarter to her conference with appellant prior to arraignment, Tarter explained to appellant why the officers were present. Shortly after speaking to appellant, in the presence of the officers, appellant and Tarter appeared for arraignment. (CTPP 24- 38.) With the knowledgethat officers would accompanying Tarterto all conferences with appellant, appellant accepted the court’s appointment of Tarter as counsel. (CTPP 29-30.) At no time did appellant indicate his displeasure or objection to Tarter’s desire to have officers accompany her when she met with appellant. | Appellantalso did not indicate any displeasure with the arrangement at the preliminary hearing,after the court reappointed Tarter as counsel, or at a continuance hearing. (CTPP 46-47, 62-192; 1 RT 2-12.) More importantly, during a pretrial hearing and in appellant’s presence, the prosecutor asked the court to admonish Officers Masters and Closeto not disclose Tarter and appellant’s conversations. (1 RT 17.) Tarter joined in the request, and the court admonished Officers Master and Closenot to disclose anything they heard during Tarter and appellant’s conversations. (1 RT 17-18.) Appellant did not indicate his displeasure or objection to the arrangement. (1 RT 18, 55-56, 97-98.) There is nothing onthis record to show appellant would not have agreed to Tarter’s desire to have officers accompanyherto all conferences with appellant if he had attended the in camerahearing. Appellant had multiple opportunities to state his displeasure with the arrangementor indicate how the arrangementaffected his ability to communicate with Tarter. Appellant never did so and even accepted Tarter’s reappointment following the preliminary hearing. Asa result, appellant is unable to show 51 that his absence from the in camera hearing resulted in prejudice or denied him fairtrial. G. Appellant is Estopped from Arguing that the Court Acted in Excess of Jurisdiction Appellant contends the court acted in excess ofjurisdiction whenit agreedto the “stipulation” to have officers accompany Tarterto all conferences with appellant and admonishedthe officers not to disclose any of appellant and Tarter’s conversations. (AOB 74-75.) Respondent disagrees. “TA]n excess ofjurisdiction is typically described as the case “where, though the court has jurisdiction over the subject matter and the parties in the fundamentalsense,it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kindsofrelief, or to act without the occurrence of certain procedural prerequisites.”’ [Citations.]” [Citation.] “Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess ofjurisdiction, in so far as that term is used to indicate that those acts may berestrained by prohibition or annulled on certiorari.” [Citation.] In contrast with judgments lacking fundamentaljurisdiction, judgments or orders in excess ofjurisdiction are valid unless attacked. [Citation.] (County ofSan Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1225-1226.) Parties may be precluded from setting acts in excess ofjurisdiction “aside by such things as waiver, estoppel, or the passage of time. [Citations.]’ [Citation.]” (People v. Lara (2010) 48 Cal.4th 216, 225.) “Whethera party who has soughtor agreed to an action in excess of a court’s jurisdiction is estopped to complain depends on the importance of the irregularity and considerations of public policy. [Citations.]” (dn re Andres G. (1998) 64 Cal.App.4th 476, 482.) “Reviewing courts have repeatedly allowed acts in excess ofjurisdiction to stand when the acts were 52 beneficial to all parties and did not violate public policy [citation], or when allowing objection would countenancea trifling with the courts. [Citation.]” Ud. at pp. 482-483.) In this case, assumingthe court acted in excessofjurisdiction, no policy, substantive or procedural, precludes estoppel of appellant to attack the excess ofjurisdiction that resulted from the court’s acceptance of Tarter’s request to have officers accompanyherto all conferences with appellant. Tarter desired to have officers accompany her. (RTIC 18.) It is a reasonable inference that appellant had knowledge of Tarter’s request given that Tarter met with appellant immediately following the in camera hearing and Officers Martinez and Kaszap openly accompanied her. (RTIC 19-20.) Appellant never expressed any displeasure to the arrangement even though he had multiple opportunities to do so. (CTPP 24-38, 46-192; 1 RT 2-12, 15-18, 55-56, 97-114.) Appellant’s failure to indicate his displeasure with the arrangement, thereby amounting to a waiver, precludes him from setting aside the court’s acceptance of Tarter’s request. (People v. Lara, supra, 48 Cal.4th at p. 225.) In addition, as appellant acknowledges, none of the officers who were present during appellant’s conferences with Tarter or who were positioned near appellant in the courtroom disclosed any of the conversations they may have heard.'° (AOB 75.) In addition, as explained morethoroughly '° Appellant argues that Officer Griem,the officer in charge of courtroom security, was never admonished andthat“it was unlikely that [Officers] Masters and Close alone transported appellant every day of the 14 daytrial.” (AOB 75.) As explained in ArgumentI, subsection D, fn.9, _ Officer Griem and twootherofficers sat at some distance behind appellant duringthe trial. There is nothing to support a claim that Officer Griem should have been admonishedbecausethere isnothing onthis record to support a finding there wasa risk Officer Griem would overhear appellant and Tarter’s conversations at counsel table. In addition, appellant’s claim (continued...) 53 above in ArgumentJ, subsection D,there is nothing to support appellant’s speculative claim on appealthatthe officers’ presence had a chilling effect on his ability to discuss his case freely with Tarter. Underthe circumstances, appellant should be estopped from contesting the court’s jurisdiction to accept Tarter’s request because, to hold otherwise, would permit appellant to trifle with the court. (See Jn re Andres G., supra, 64 Cal.App.4th at p. 482.) H. Appointment of Counsel Who Desired the Presence of Officers During Meetings with Appellant Did Not Result in a Complete Denial of Counsel Appellant contends the court’s appointment of Tarter amounted to a complete denial of counselin violation of his Sixth Amendmentandstate constitutional rights to counsel. (AOB 76-78.) He argues that appointment of an attorney who desires officers to accompanyherat all times interferes with a defendant’s right to private consultation andis therefore “tantamount to a failure to appoint counselatall.” (AOB 78.) Respondent disagrees. Asdiscussed more thoroughly above in ArgumentI, subsection D and adopted herein, the appointment of counsel whodesires the presence of officers does not amountto a total deprivation of counsel. I. Appellant Was Able to Confer Privately with Counsel in the Courtroom Before and DuringTrial Appellant contends that his Sixth Amendmentandstate constitutional rights to be present during trial was violated. (AOB 78-79.) He arguesthat although he was physically presentat trial, he was in absentia because the (...continued) that Officers Masters and Close were not the only officers present during appellant and Tarter’s conferences is based on pure speculation. Appellant presents nothing in support ofhis claim. 54 location of the three security officers in the courtroom prevented him from assisting counsel during trial. (Jbid.) Respondentdisagrees. “Under the Sixth Amendment, a defendant hastheright to be personally present at any proceeding in which his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross- examination.’” (People v. Butler (2009) 46 Cal.4th 847, 861, quoting Kentucky v. Stincer (1987) 482 U.S. 730, 744-745, fn. 17 (Stincer).) In addition, a defendant has a due processright “to be present at any ‘stage ... that is critical to [the] outcome’ and where the defendant’s ‘presence would 399contribute to the fairness of the procedure.’” (People v. Butler, supra, at p. 861, quoting Stincer, supra, at p. 745.) “Thestate constitutional right to be presentattrial is generally coextensive with the federal due processright. | [Citations.]” (People v. Harris, supra, 43 Cal.4th at p. 1307.) Appellant bases his argument that he was unable to confer with counsel before or duringtrial on the faulty belief that security officers were seated “at counsel table.” (AOB 79.) Appellant is mistaken. None of the three security officers positioned near appellant weresitting at counsel table. Prior to trial, Officer Griem explained that an officer would be positioned to the right of appellant, to the left of appellant, and directly behind appellant. (1 RT 114.) Duringtrial, the three officers’ positions in the courtroom wereclarified. District Attorney Investigator Ebner, a witnessattrial, identified appellant and described appellant’s position in the courtroom as being“‘to the left of Defense Attorney Tarter, and three correctional officers to his rear.” (5 RT 996,italics added.) As the record shows,the officers were sitting at some distance behind appellant, not at counseltable."! '! Appellant does not argue that the court abusedits discretion regarding the security measuresinside the courtroom orthat the presence of (continued...) 55 There is no evidence to support a finding that the three officers sitting “at some distance behindappellant prevented or impeded appellant’s ability to converseprivately with his trial counsel. On the contrary, appellant’s counsel indicated that she did not object to the security measures and never indicated her displeasure with the officers positioned behind appellant. (1 RT 115.) In addition, the evidence suggests that appellant was not prevented from conversing with his counsel duringtrial. During a discussion regarding security measures, the court indicated that appellant would be “unrestrained at counsel table so that he can communicate in writing with his lawyer.” (1 RT 116.) Officer Griem assured the court that appellant would be “provided with a pen filler,” otherwise known as the “middle of the pen,” for the purposes of communicating with counsel duringtrial. (/bid.) Onthis record, there is no evidence to support a finding that the three security officers impededor interfered with appellant’s ability to assist his counsel before or during trial. As a result, this is not a case where appellant, though physically presentat trial, was in essence in absentia because he was unable to assist his counselat trial. Appellant’s claim that his right to be present under the Sixth Amendmentandstate Constitution was violated should be rejected. In sum, appellant waived any claim that the officers’ presence during attorney-client conferencesviolated his right to counsel. In any event, there simply wasnoerror, and even assuming there wasan intrusion into appellant’s confidential communications, there wasnorealistic possibility of injury to appellant or benefit to the prosecution. Finally, appellantis (...continued) the three officers was inherently prejudicial. (See Holbrook v. Flynn (1986) 475 U.S. 560, 568-569; People v. Jenkins (2000) 22 Cal.4th 900, 997-999.) 56 unable to show that his absence from the in camera hearing prejudicedhis case or denied him fairtrial, he is estopped from arguing that the court acted in excess ofjurisdiction by agreeing to the arrangement, and appellant’s right to confer privately with counsel during trial was not violated. Under the circumstancesofthis case, specifically appellant’s violent nature and his desire to kill others, the officers’ presence and assurancethat they would not repeat anything they heardstrikes a fair balance betweenattorney safety, confidentiality of communications, and assistance of counsel. Ti. MURDER IS NOT A LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULTBY A LIFE PRISONER Appellant contends his murder convictions (§ 187, subd. (a); counts III and IV)are lesser included offenses of his convictions for aggravated assault by life prisoner (§ 4500; counts I and IT). (AOB 81-87.) Appellant characterizes section 4500 as “murderby life prisoner” and argues that when the victim dies, and the offense is charged as a capital crime, the determination of whetherthe victim died within a year and a day is an elementofthe offense. (Ibid.) As a result, he argues that murderis a lesser included offense of “murder by a life prisoner” because “the capital crime set forth in section 4500 cannot be committed without also necessarily committing murder.” (AOB 86.) Respondentdisagrees. The prosecution charged appellant with aggravated assault by a life prisoner (§4500; count I) and murder (§ 187, subd.(a); count III) of Mendoza. (1 CT 13-14.) The prosecution charged appellant with the same crimes against Mahoney(counts II and IV). (1 CT 14-15.) The prosecution further alleged as to counts I andII (§ 4500) that Mendoza and Mahoneydied within a year and a day as a proximateresult of the aggravated assaults. (1 CT 13-14.) 57 The jury found appellant guilty of the murder and aggravated assault of both Mendoza and Mahoney. (9 CT 2474-2485.) The jury further found that appellant committed the murders while lying in wait, committed multiple murders, and that Mendoza and Mahoneydied within a year and a day of the aggravated assaults. (/bid.) The jury found death to be the appropriate punishmentfor both murders and both aggravated assaults (9 CT 2684-2689), and the court sentenced appellant to death for each murder and aggravatedassault, then stayed the imposition of death for the aggravated assaults pursuantto section 654 (10 CT 2809-2813, 2824-2825). The aggravated assault and murderof each victim, separately, arose out of the same act or course of conduct. Although a defendant may be convicted of multiple crimes arising out of the same conduct, “[a] judicially created exception . . . “prohibits multiple convictions based on necessarily included offenses.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) In deciding whether multiple conviction is proper, a court should consider only the statutory elements. Or, as formulated in [People v.} Scheidt [(1991) 231 Cal.App.3d 162], “only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offensethat may bea lesser included offense because of the specific nature of the accusatory pleading is not subject to the samebar.” [Citation.] . (Id. at p. 1229.) Thetest, referred to as the statutory elementstest, is cecesatisfied when “‘“all the legal ingredients of the corpusdelicti of the lesser offense [are] included in the elements of the greater offense,”’”1.e., the defendant could not have committed the greater offense without also necessarily committing the lesser offense. (People v. Lopez (1998) 19 Cal.4th 282, 288.) In addition to the specific nature of the accusatory pleading, the underlying facts of the case are not considered. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) 58 Section 4500,titled, “Person undergoing life sentence; commission of assault with meansof force likely to produce great bodily injury; punishment,”states: Every person while undergoinga life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weaponorinstrument, or by any meansof force likely to produce great bodily injury is punishable with death or life imprisonment withoutpossibility of parole. The penalty shall be determined pursuantto the provisions of Sections 190.3 and 190.4; however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, the punishmentshall be imprisonmentin thestate prison for life without the possibility ofparole for nine years. (§ 4500). Section 187, subdivision (a), titled “Murder,”states: “Murderis the unlawful killing of a human being,or a fetus, with malice aforethought.” Murderis not a lesser included offense of aggravated assault by life prisoner. Underthe statutory elementstest, aggravated assault by life prisoner can be committed without necessarily committing murder. Section 4500 is an assault statute, not a murder statute. (See People v. Smith (1950) 36 Cal.2d 444, 448 [“Defendants properly concedethat the offenses of assault by a life term convict and murderare not ‘necessarily included offenses’”]; see also People v. McNabb (1935) 3 Cal.2d 441, 458 [explaining that the predecessorstatute, former section 246,'* “was enacted as a disciplinary regulation and as a meansofprotectionto prisoners themselves against the assaults of the vicious, andalso to protect the '? Former section 246 defined the offense ofassault with a deadly weapon bya person undergoinga life sentence. It was repealed and reenacted as section 4500 in 1941. (See Historical and Statutory Notes, 47C West’s Ann. Pen. Code (2008 ed.) foll. § 246, p. 371.) 59 officers who are required to mingle with the inmates, unarmed”].) The statute proscribes “assault uponthe person of another with a deadly weapon or instrument, or by meansofforce likely to produce great bodily injury,” when committed bya life-term inmate with malice aforethought. (§ 4500, italics added.) Unlike murder, where the victim’s death is a necessary elementofthe offense, the death or survival of the victim is not determinative of the defendant’s guilt of aggravated assault. The death orsurvivalofthe victim is relevant only to the punishmentthat is imposed upona finding of guilt. Section 4500 separates the actions that amount to aggravated assault by a life prisoner from the punishmentavailable for the defendant’s commission of the offense. Thestatute first lays out the elements that amount to aggravated assault by a life prisoner: “Every person while undergoinga life sentence ... and who, with malice aforethought, commits an assault upon ~ the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury....” (§ 4500, italics added.) The statute then details the penalties that may be imposed for commission of the offense: “is punishable with death or life imprisonment without possibility of parole.... however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, the punishment shall be imprisonmentin the state prison forlife without the possibility of parole for nine years.” (§ 4500, italics added.) In other words, there is a difference between the acts that constitute aggravated assault and the punishment that may beimposed. Whetherthe victim survived or died only becomesrelevant ifthe defendant is found to have committed aggravated assault. The defendant’s guilt of ageravated assault, therefore, is not dependent on the victim’s death or survival. 60 As a result, looking solely to the statutory elements that establish a defendant’s commission of aggravated assault, murderis not a lesser included offense of aggravated assault because a person can commit aggravated assault without also committing murder. Appellant’s attempt to analogize section 4500 with section 219, train derailing or wrecking,is not persuasive. (AOB 85-86.) Appellant argues that sections 4500 and 219, both death penalty eligible crimes, are similarly worded statutes.’ (Jbid.) Appellant therefore claims that because section 219’s corresponding jury instruction (CALJIC No. 9.97) requires the jury to find whether a death occurred, death is an element of section 219 and likewise is an elementof section 4500. (/bid.) Appellantcites no authority that jury instructions are relevant underthe statutory elementstest. In any event, just as accusatory pleadings andfacts of the case are not relevant under the statutory elementstest to determine if an offenseis a lesser included offense, the wording of specific jury instructionsare just as irrelevant. More,that the court and the parties agreed to put the issue of whether Mendoza and Mahoneydied within a year and a day ofthe aggravated assaults before the jury does not demonstrate that the victim’s death is an 3 Section 219, titled “Train derailing or wrecking; punishment,” states in relevantpart: Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on anyrailroad with the intention of derailing any passenger, freight or other train, car or engine and thusderails the same...is guilty of a felony and punishable with death or imprisonmentin thestate prisonforlife without possibility of parole in cases where any person suffers death as a proximate result thereof, or imprisonmentin the state prison for life with the possibility of parole, in cases where no person suffers death as a proximate result thereof. The penalty shall be determined pursuant to Sections 190.3 and 190.4. 61 essential element of aggravated assault. As shown above,the victim’s survival or death following the assault is relevant only to the punishment that may be imposed. In this sense, whether the victim dies within a year and a dayis a fact that increases the penalty for aggravated assault beyond the statutory maximum andis therefore an enhancementallegation that must be foundtrue by a jury. (See People v. Sloan (2007) 42 Cal.4th 110, 122-123; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) As an enhancementallegation, however, the fact may not be considered for purposesofthe rule prohibiting multiple convictions based onnecessarily included offenses. (People v. Sloan, supra, at pp. 113-114.) Asa result, whether the victim dies within a year and a day is irrelevant under the statutory elementstest. Undersection 4500,the death of the victim is relevant only to the punishment received for commission of aggravated assaultby life prisoner. Underthe statutory elements test, aggravated assault by life prisoner can be committed without committing murder. Thus, murderis not a lesser included offense of aggravated assault by life prisoner. II. THE LYING-IN-WAIT SPECIAL CIRCUMSTANCEIS CONSTITUTIONAL Appellant contends the lying-in-wait special circumstanceis unconstitutional becauseit fails to narrow the class of death eligible defendants. (AOB 88-97.) Appellant argues this Court’s expansive interpretation of the elements of the lying-in-wait special circumstance has eliminated any distinction between the special circumstance and premeditated first degree murder. (AOB 89-92) He further argues thereis no significant distinction between the lying-in-wait special circumstance and lying-in-wait murder. (AOB 92-95.) Finally, appellant argues the lying-in-wait special circumstance fails to provide a meaningfulbasis for 62 distinguishing death eligible defendants from those not death eligible. (AOB 95-97.) This Court has consistently rejected these claims.’* At the time of appellant’s murder of Mendoza and Mahoney,section 190.2, former subdivision (a)(15), made it a special circumstanceif the oo 15defendant killed the victim “while lying in wait. The elements of the lying-in-wait special circumstance required that an intentional killing be “committed undercircumstancesthat included a physical concealment or | concealment of purpose; a substantial period of watching and waiting for an opportune timeto act; and, immediately thereafter, a surprise attack on an. unsuspecting victim from a position of advantage.” (People v. Stevens (2007) 41 Cal.4th 182, 201.) In People v. Stevens, supra, 41 Cal.4th 182, this Court rejected the claim that there is no distinction between the lying-in-wait special circumstance and premeditated first degree murder. (People v. Stevens, supra, at pp. 203-204.) This Court stated: In distinction with premeditated first degree murder, the lying- in-wait special circumstance requires a physical concealment or concealmentofpurpose anda surprise attack on an unsuspecting victim from a position of advantage. [Citations.] Thus, any overlap between the premeditation element offirst degree murder andthe durational elementofthe lying in wait special circumstance does not undermine the narrowing function of the special circumstance. [Citation.] Moreover, contrary to Justice Moreno’s concurring and dissenting opinion, concealment of purposeinhibits detection, defeats self-defense, and may betray at least somelevel of trust, making it more blameworthy than premeditated murder that does not involve surprise. [Citations.] The following arguments by no meanscontain an exhaustivelist of decisions addressing and rejecting these claims. '® “Tn March 2000, the languageofthe lying-in-wait special circumstance waschangedto delete the word ‘while’ and substituted with the phrase ‘by meansof.’ [Citations.]” (People v. Streeter (2012) 54 Cal.4th 205, 246,fn. 7.) 63 (Ibid; People v. Streeter, supra, 54 Cal.4th at pp. 252-253; People v. Sims (1993) 5 Cal.4th 405, 434.) | In People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149, this Court rejected the claim that there is no distinction between the lying-in-wait special circumstance andlying-in-wait murder. This Court stated: “{M]urder by meansof lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death. [Citations.]” [Citation.] In contrast, the lying-in-wait special circumstance requires “an intentional murder, committed under circumstances which include (1) a concealmentofpurpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage....” [Citations.] Furthermore, the lying-in-wait special circumstance requires “that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murderperpetrated by meansof lying in wait, or following premeditation and deliberation. [Citation.]” [Citation.] The distinguishing factors identified in Morales and Sims that characterize the lying-in-wait special circumstance constitute “clear and specific requirements that sufficiently distinguish from other murders a murder committed while the perpetrator is lying in wait, so as to justify the classification of that type of case as one warranting imposition of the death penalty.” [Citation.] ({bid., italics in original, fn. omitted; People v. Streeter, supra, 54 Cal.4th at pp. 252-253; People v. Stevens, supra, 41 Cal.4th at p. 204.) In People v. Nakahara (2003) 30 Cal.4th 705, 721 (Nakahara), this Court rejected the claim that the lying-in-wait special circumstancefails to distinguish between death eligible defendants and non-death eligible defendants. This Court stated: Defendantnext argues that the lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) is invalid for failure to sufficiently narrow the class of personseligible for death and to provide a meaningful basis for distinguishing the few cases in 64 which death is imposed from the many cases in whichitis not. [Citation.] We have repeatedly rejected this contention, and defendant fails to convince us the matter warrants ‘our reconsideration. [Citations.] (Ibid.; People v. Streeter, supra, 54 Cal.4th at pp. 252-253.) Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting these claims. IV. THE STANDARD GUILT AND PENALTY PHASE INSTRUCTIONS Do NOT UNDERMINE THE REASONABLE DOUBT STANDARD Appellant contends that various standard jury instructionsviolate the requirement of proof beyond a reasonable doubt. (AOB 98-108.) Appellant argues that CALJIC No. 2.01 (sufficiency of circumstantial evidence) reduced the prosecution’s burden of proof from beyond a reasonable doubt to mere reasonableness and created a mandatory presumption that required the jury to draw an incriminatinginferenceifit was merely reasonable. (AOB 99-101.) He further argues that CALJIC No.2.21.2 (willfully false testimony), CALJIC No. 2.22 (weighing conflicting testimony), CALJIC No. 2.27 (sufficiency of testimony of one witness), and CALJIC No. 8.20 (deliberate and premeditated murder) individually and collectively lessened the reasonable doubt standard to a preponderance ofthe evidence. (AOB 102-104.) Finally, appellant argues that CALJIC No.2.51 (motive) reduced the prosecution’s burden of proof _ becauseit suggested he could be found guilty based on the presence of an alleged motive and shifted the burden to appellant to prove his innocence and the absence of motive. (AOB 104-106.) This Court has consistently rejected these claims. (See fn. 14.) | This Court has repeatedly rejected the claim that CALJIC No.2.01 (sufficiency of circumstantial evidence) alters the burden of proof and creates a mandatory presumption ofguilt. (People v. Bonilla (2007) 41 Cal.4th 313, 338; People v. Kipp (1998) 18 Cal.4th 349, 374-375.) 65 This Court has also repeatedly rejected the claim that CALJIC No. 2.21.2 (willfully false testimony), CALJIC No.2.22 (weighing conflicting testimony), CALJIC No.2.27 (sufficiency of testimony of one witness), and CALJIC No.8.20 (deliberate and premeditated murder) individually andcollectively lessen the prosecution’s burden of proof. (People v. Streeter, supra, 54 Cal.4th at p. 253, and cases cited therein.) “Each of these instructions ‘ “is unobjectionable when,ashere, it is accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People’s burdenofproof.”’ [Citation.]” (/bid.) Here, these instructions were unobjectionable because the jury was instructed with CALJIC No. 2.90, which explained the presumption of innocence, reasonable doubt, and the prosecution’s burden of proof. (10 CT 2731.) Finally, this Court has repeatedly rejected the claim that CALJIC No. 2.51 (motive) allows the jury to determine guilt based solely on motive and shifts the burden to defendant to prove his innocenceandthe absence of motive. (People v. McKinzie (2012) 54 Cal.4th 1302, 1357; People v. Cleveland (2004) 32 Cal.4th 704, 750.) Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting these claims. V. APPELLANT FORFEITED HIS CLAIMS THAT THE COURT ERRED IN ADMITTING EVIDENCE OF TWO UNADJUDICATED OFFENSES AND THAT THERE WASINSUFFICIENT EVIDENCE OF SEVEN UNADJUDICATED OFFENSES TO SUPPORT THE JURY’S USE OF THOSE OFFENSES AS AGGRAVATING EVIDENCE; ON THE MERITS, THE COURT DiD NOT ERR IN ADMITTING TWO UNADJUDICATED OFFENSES AND SUFFICIENT EVIDENCE SUPPORTSA FINDING THAT ' APPELLANT COMMITTED THE SEVEN UNADJUDICATED OFFENSES BEYOND A REASONABLE DOUBT Appellant makes numerous claims regarding the court’s admission and the jury’s use of unadjudicated offenses presented by the prosecution during the penalty phase as aggravating evidence pursuantto section 190.3, 66 factor (b). (AOB 109-195.) First, appellant contendsthe court abusedits discretion whenit admitted evidence of the March 8, 1997, assault and April 18, 2000, battery because the incidents lacked the force or violence required by section 190.3, factor (b). (AOB 111-134.) He further argues that admission of the twoincidents violated the federal Constitution because they skewed the sentence-selection process toward death and were irrelevant to the jury’s penalty determination because they were “de minimus” violent conduct. (AOB 134-138.) As a result, he claimshis death sentence should be reversed. (AOB 139.) Second, appellant contends there was insufficient evidence to establish that he committed seven of the unadjudicated offenses presented during the penalty phase. (AOB 140-174.) Third, appellant contends the unadjudicated offense instructions were erroneous. (AOB 174-185.) He arguesthat the instructions created a mandatory presumption (AOB 179-180) andfailed to define “force or violence” (AOB 180-185). Fourth, appellant raises numerousconstitutional challenges to the use of unadjudicated offenses during the penalty phase. (AOB 185-190.) He argues it waserror for the samejury to decide guilt and penalty (AOB 186-188) and for there to be a lack ofjury unanimity as to the unadjudicated offenses (AOB 189-190). Finally, appellant asserts that reversal of his death judgmentis required because the invalid and factually insufficient aggravating factors unconstitutionally skewed the jury’s penalty determination toward death and the erroneous admission of the unadjudicated offenses was not harmless beyond a reasonable doubt. (AOB 190-195.) Appellant is not entitled to relief. His arguments are forfeited and meritless. In any event, any error was harmless. 67 A. Legal Principles Regarding Section 190.3, factor (b) Evidence “The purpose of [section] 190.3, factor (b) ‘is to enable the jury to makean individualized assessmentof the character and history of a defendant to determine the nature of the punishmentto be imposed.’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1029.) Section 190.3, factor (b) allows the jury, in determining the penalty to impose, to consider “(t]he presence or absenceofcriminal activity by the defendant which involved the use or attempted use of force or violenceor the express or implied threatto use force or violence.” (§ 190.3, factor (b).) Whether the unadjudicated offense involves the use or attempted use of force or violence or the éxpress or implied threat to use force or violence ““‘is not onethat is madeonthe basis of the abstract, definitional nature of the offense[ |’ [citation],” but is “based on the conduct of the defendant which gaverise to the offense. [Citations.]” (People v. Thomas (2011) 52 Cal.4th 336, 363.) “““E]vidence admitted under this provision mustestablish that the conduct wasprohibited by a criminal statute and satisfied the essential elements of the crime. [Citations.]” (People v. Tully, supra, at p. 1027.) The unadjudicated crimes evidence may amountto either a felony or a misdemeanor. (People v. Phillips (1985) 41 Cal.3d 29, 71.) “The prosecution bears the burden ofproving the factor (b) other crimes beyond a reasonable doubt.’ [Citation.]” (People v. Tully, supra, at p. 1027.) “A trial court’s decision to admit, at the penalty phase, evidence of a defendant’s prior criminal activity is reviewed underthe abuse ofdiscretion standard. [Citation.]” (Peoplev. Bacon (2010) 50 Cal.4th 1082, 1127; People v. Whisenhunt (2008) 44 Cal.4th 174, 225.) 68 B. Appellant Forfeited his Claims That the Court Abused Its Discretion When it Admitted Evidence of the March 8, 1997, and April 18, 2000, Unadjudicated Offenses in the Penalty Phase; On the Merits, the Court Did Not AbuseIts Discretion Appellant contends the court abusedits discretion in admitting evidence of two unadjudicated offenses during the penalty phase. (AOB 109-134.) He argues that the March 8, 1997, and April 18, 2000, unadjudicated offenses lacked the force or violence required by section 190.3, factor (b). (/bid.) He further contends admission of the two unadjudicated offenses violates the federal Constitution because they impermissibly skewed the sentence-selection process toward death and wereirrelevant to the jury’s penalty determination because they were “minorincidents of only de minimus violent or forceful criminal conduct.” (AOB 134-139.) As a result, he requests that his death sentence be reversed. (AOB 139.) Appellant forfeited his claims becausehe failed to object to the admission ofthis evidenceat trial. On the merits, the court did not abuseits discretion when it admitted evidence of the March 8, 1997, and April 18, 2000, unadjudicated offenses, and the admission ofthe incidents violated no constitutional guarantee. . 1. Procedural Background Regarding the March 8, 1997, and April 18, 2000, Unadjudicated Offenses Prior to the conclusion of the guilt phase, and in preparation of a possible penalty phase, the court inquired of the evidence the prosecution would offer as circumstancesin aggravation. (5 RT 1049.) The prosecutor indicated that he would introduce evidence of several cell extractions, an assault on another inmate, and numerous weaponspossessions. (5 RT 1050-1051.) During the discussion, the court noted that custodial possession of a sharpened instrument amountedto an implied threat of force and was admissible undersection 190.3, factor (b). (5 RT 1053.) 69 Following the guilt phase, the court further inquired of the evidence the prosecution would present during the penalty phase. (5 RT 1192.) The prosecutorstated that he would present evidence of unadjudicated offenses pursuantto section 190.3, factor (b), listed the dates and general description of the unadjudicated offenses, and stated that the unadjudicated offenses violated sections 4501.5 (battery by prisoner on a non-confined person) and 4502 (possession of a manufactured weapon). (5 RT 1192-1193.) Subsequently, when the court inquired whethereither party “anticipate[d] any evidentiary problemsas far as the penalty phase, motionsin limine, anything of that nature,” appellant’s only concern was the scheduling of witnesses. (5 RT 1195-1197.) ‘a. The March8, 1997, Assault During the penalty phase, Officer Dewall testified regarding appellant’s March 8, 1997, assault of an officer at High Desert State Prison. (6 RT 1216-1217.) During Officer Dewall’s testimony, the court indicated that it was going to take a short recess. (6 RT 1233.) Outside the presence of the jury, the court stated thatit intended to strike Officer Dewall’s testimony. (6 RT 1234.) The court noted that the prosecution had offered Officer Dewall’s testimony to show that appellant assaulted an officer, but that Officer Dewall’s current testimony offered only a nondescript statement that a confrontation occurred. (/bid.) The court inquired whether the prosecution could show appellant assaulted an officer. (Jbid.) The prosecutorindicated he could. (Jbid.) Still outside the presence of the jury, Officer Dewall testified that when officers opened appellant’s cell door, appellant had a mattress in front of him and he charged towardofficers. (6 RT 1236.) Based on the imclusion of this evidence to Officer Dewall’s testimony, the court found the March8, 1997, unadjudicated offense evidence admissible. (6 RT 70 1236-1237.) Officer Dewall continued his testimony in the presenceof the jury. (6 RT 1237.) b. The April 18, 2000, Battery Also during the penalty phase, Officer Gatto testified regarding appellant’s April 18, 2000, battery on an officer at Corcoran State Prison. (7 RT 1458-1459.) During Officer Gatto’s testimony, the court indicated that it was going to take a short recess. (7 RT 1476.) Outside the presence of the jury, the court inquired as to the admissibility of Officer Gatto’s testimony. (/bid.) The prosecutor indicated that it believed appellant’s actions violated section 4502 (possession of a manufactured weapon) because he took possession of a pepper spray canister during the incident, appellant’s actions were an express use of force or violence when he shattered the glass on his cell door with the pepper spray canister, and appellant’s actions constituted vandalism. (7 RT 1476-1477.) The court noted that pepper spray wasnot tear gas and therefore not a weapon listed in 4502, subdivision (a). (7 RT 1477.) The prosecutorclarified that the pepperspray fell under section 4502, subdivision (b), weapon stock, because appellant could have used the canister and the broken glass as weapons. (/bid.) The court determined that “weapon stock” was not indicated in section 4502, subdivision (b), and the prosecutor further questioned Officer Gatto outside the presence of the jury. Officer Gatto testified that appellant contacted his hand whenappellant grabbed the pepper spray canister and pulled it away from Officer Gatto. (7 RT 1478- 1480.) Based on the inclusion of this evidence, the court found that the April 18, 2000, unadjudicated offense amountedto a battery under sections 4501.5 and 242 andthat it was admissible. (7 RT 1480.) Before continuing Officer Gatto’s testimonyin the presenceofthe jury, the court asked appellant’s counsel if she had any comment on the matter. (7 RT 71 1480-1481.) She did not. (Ibid.) Officer Gatto continued his testimony in the presence of the jury. (7 RT 1481.) 2. Appellant Forfeited His Claims That the Court Abused Its Discretion When It Admitted Evidence of the March8, 1997, and April 18, 2000, Unadjudicated Offenses Appellant failed to object to the admission of the unadjudicated offenses on any groundattrial andtherefore has forfeited his claims of error on appeal. The court, on its own accord, questioned whether the officers’ testimonysatisfied the requirements for admission of unadjudicated offenses undersection 190.3, factor (b). (6 RT 1233-1237; 7 RT 1476-1480.) At no time during the discussions regarding the admission of aggravating evidence did appellant object to the evidence as inadmissible on any ground. (See 5 RT 1049-1053, 1192-1197.) In addition, appellant did notjoin in the court’s concerns and did not object to the court’s ultimate determination that the evidence was admissible. In fact, when the court asked appellant’s trial counsel if she had any commentbefore allowing Officer Gatto to continue his testimony in frontof the jury, appellant’s trial counselindicated she did not. (7 RT 1480-1481.) Appellant did not object to the admission of the March.8, 1997, and April 18, 2000, unadjudicated offenses on the groundthat they lacked “the use or attempted use of force or violence or the express or implied threat to use force or violence.” Therefore, he has forfeited his claims that the court abusedits discretion when it found the two unadjudicated offenses admissible. (People v. Livingston (2012) 53 Cal.4th 1145, 1175; Peoplev. Lewis (2008) 43 Cal.4th 415, 529-530; People v. Montiel (1993) 5 Cal.4th 877, 928; People v. Tuilaepa (1992) 4 Cal.4th 569, 588.) 72 3. Onthe Merits, the Court Did Not Abuse Its Discretion in Admitting Evidence of the March 8, 1997, and April 18, 2000, Unadjudicated Offenses Assuming appellant preserved the issue for appeal, the court reasonably determined that substantial evidence existed to prove that the March8, 1997, and April 18, 2000, unadjudicated offenses established conductthat “involved the use or attempted use of force or violenceorthe express or implied threat to use force or violence”as required by section 190.3, factor (b). a. The March 8, 1997, Assault Involved the Use or Attempted Use of Force or Violence or the Threat Thereof During the penalty phase, Officer Dewalltestified regarding appellant’s March 8, 1997, assault on an officer at High Desert State Prison. (6 RT 1216-1217.) According to Officer Dewall, on March 8, 1997, while housed in the Administrative Segregation Unit, appellant and his cellmate, Inmate Frutos, covered their cell door windowswith paper and other materials. (6 RT 1217, 1219-1223.) Officers were unable to see inside the cell, and appellant and Frutos repeatedly refused to remove the materials and refused to voluntarily be handcuffed and removed from the cell. (6 RT 1222-1223.) Officers planned a cell extraction. (6 RT 1222.) Prior to entering the cell, officers deployed multiple bursts of pepper spray into the cell. (6 RT 1224.) Officers followed each round of pepper spray with a request for appellant and Frutos to voluntarily submit to being handcuffed and removedfrom the cell. (Jbid.) Appellant and Frutos repeatedly refused to comply. (/bid.) Officers then openedthe cell door approximately four to six inches and discharged two roundsofless-lethal rubber ammunition, one round each from two separate 37-millimeter launchers. (6 RT 1225-1226; People’s Exhibit A-1.) Officers followed the discharge of less-lethal ammunition with a request for appellant and Frutos 73 to voluntarily “cuff-up andexit the cell.” (6 RT 1225-1226.) Appellant and Frutos refused to comply. (6 RT 1226.) Officers again opened thecell door and discharged two more roundsofless-lethal ammunition. (Jbid.) Appellant and Frutos again refused to comply. (/bid.) Following appellant and Frutos’ continued refusals, eight officers prepared to enter the cell. (6 RT 1227.) When officers opened the cell door to discharge two more roundsofless-lethal ammunition before entering the cell, appellant immediately charged toward officers. (6 RT 1236; People’s Exhibit A-1.) Appellant had a mattress held in front of him and physically contacted the officers. (6 RT 1237.) Inmates housed in the Administrative Segregation Unit are not allowedto leave their cells without first being handcuffed. (6 RT 1237.) The court reasonably determinedthat substantial evidence existed to prove that the assault involved the use or attempted use of force or violence or the threat thereofto satisfy the requirements of section 190.3, factor (b).'° Officer Dewall testified that inmates in the Administrative Segregation Unit are not allowedto leavetheir cell without first being handcuffed. (6 RT 1219-1220, 1237.) Appellant repeatedly refused to be ‘voluntarily cuffed and removed from the cell. (6 RT 1223-1226.) Significantly, appellant refused to voluntarily cuff-up andexit his cell following the second deploymentofless-lethal ammunition. (6 RT 1226.) Immediately following this refusal, when officers opened the cell door for the third time to discharge less-lethal ammunition into appellant’s cell, '© Appellant does not argue here that the court abusedits discretion in finding substantial evidence existed to prove that appellant committed an assault. In a separate argument, infra, appellant argues there was insufficient evidence for the jury to determine he committed an assault. For consistency, respondentlimits the argument here to whether the court abusedits discretion in finding the assault involved force or violence under section 190.3, factor (b). 74 appellant held a mattress in front of him and charged towardofficers. (6 RT 1236; People’s Exhibit A-1.) Appellant’s act of charging toward officers, taken together with his repeated refusals to voluntarily comply with the officers’ requests to be handcuffed and removed from the cell and his forcing officers to extract him from hiscell, gaverise to the reasonable inference that appellant’s intentional act of charging toward officers when they openedthe cell door involved the attempted use of force or violence, or at the least, a threat to use force or violence. Appellant’s claim that his actions on March 8, 1997, did not involve the use or attempted use of force or violence or the threat thereof is based entirely on his one-sided view ofhis actions as “minimal”andhis belief that there are innocent explanationsfor his actions. (AOB 122.) Appellant characterizes his act of attemptingto exit his cell as an act of compliance with the officers’ demandsto exit the cell. (/bid.) He further characterizes his act of holding a mattress in front ofhim as an attemptto protect the officers so they would not be injured when he cameoutofhis cell. (Ibid.) Appellant’s explanations are absurd given the surrounding circumstancesofthe incident.. Appellant was not complying with the officers’ requeststo exit the cell. Appellant repeatedly refused to comply with the officers’ requests to be handcuffed and removedfrom hiscell. (6 RT 1223-1226.) Appellant’s last refusal occurred immediately before officers openedthe cell doorforthe third time, and appellant charged towardthe officers. (6 RT 1226, 1236; People’s Exhibit A-1.) Appellant was not holding the mattress in front ofhim to protect the officers, as appellant suggests. (AOB 141-142.) Appellant forced officers to initiate a cell extraction and refused to comply with their repeated requests. The evidence showsthat he shielded himself with a mattress, stood by the entranceto his cell door, and waited for officers to open thecell door. (6 RT 1236; People’s Exhibit A-1.) The record does not support appellant’s 75 innocent explanations. In addition, appellant did not present his innocent explanations to the court before it ruled on the admissibility of the March 8, 1997, unadjudicated offense. Underthe circumstances, the court did not abuse its discretion when it concludedthat appellant’s conduct during the March8, 1997, assault involved the use or attempted use of force or violence or threat thereof sufficient for admission undersection 190.3, factor (b). b. The April 18, 2000, Battery Involved the Use or Attempted Use of Force or Violence or the Threat Thereof During the penalty phase, Officer Gatto testified regarding appellant’s April 18, 2000, battery on an officer at Corcoran State Prison. (7 RT 1458- 1459.) According to Officer Gatto, on April 18, 2000, he notified appellant that appellant was being movedto a different cell. (7 RT 1459-1461.) Appellant was cooperative and asked for time to get his belongings together. (7 RT 1461.) When Officer Gatto returned 20 minuteslater, appellant said he had changed his mind, refused to changecells voluntarily, and told Officer Gatto that he would movecells the way he wanted to move. (7 RT 1461-1462.) Officer Gatto obtained a pepper spray canister and deployed a three to five second burst of pepper spray through the food port. (7 RT 1465-1466.) Officer Gatto had his right hand on the canister nozzle and his left hand on the bodyofthe canister. (People’s Exhibit H- 2.) While Officer Gatto was spraying the pepper spray, appellant reached through the food port and attempted to grab the pepper spray canister. (7 RT 1465-1466, 1470; People’s Exhibit H-2.) Appellant’s entire arm, up to - his shoulder, was outside of the cell. (People’s Exhibit H-2.) Officer Gatto quickly stepped out of appellant’s reach. (7 RT 1465-1466, 1470; People’s Exhibit H-2.) Officer Gatto immediately attempted to deploy more pepper spray through the food port. (People’s Exhibit H-2.) When he positioned 76 the pepperspray in front of the food port, appellant again reached through the food port. (7 RT 1469; People’s Exhibit H-2.) This time appellant was able to grab the canister near the nozzle. (Jbid.) Officer Gatto tried to maintain a hold of the canister but after a brief struggle, appellant pulledit out of Officer Gatto’s hands andinto the cell. (/bid.) Appellant contacted Officer Gatto’s hand when he grabbed the canister. (7 RT 1479-1481; People’s Exhibit H-2.) Officers closed the food port, and Officer Gatto retrieved a second pepperspray canister. (7 RT 1471.) Approximately 40 ounces of pepper spray remainedin the canister appellant pulled into his cell. (7 RT 1483.) While Officer Gatto was retrieving the additional pepperspray, appellant struck the cell window repeatedly with the pepper spray canister he had inside his cell. (7 RT 1471.) Appellant shattered the window, and glass was projected outward onto the floor. (/bid.) Officers placed a shield in front of appellant’s cell door. (7 RT 1471; People’s Exhibit H-2.) Officers again opened the food port and deployed pepperspray into appellant’s cell. (7 RT 1472.) Appellant placed his mattress in front of the food port to block the pepper spray. (7 RT 1472; People’s Exhibit H-2.) Whenofficers pulled part of the mattress through the food port and deployed more pepper spray, appellant again reached through the food port and attempted to grab the second pepperspray canister. (7 RT 1472; People’s Exhibit H-2.) Officer Gatto pulled the canister out of appellant’s reach, and appellant continued to grab for the canister. (People’s Exhibit H-2.) Officer Gatto then deployed the pepper spray through a small opening on theside of the cell door. (7 RT 1473.) At that point, appellant requested to be removed from his cell and gave the pepperspray canister to officers through the food port. (7 RT 1474.) The court reasonably determinedthat substantial evidence existed to prove that the battery on Officer Gatto involved the use or attempted use of 77 force or violence orthe threat thereofto satisfy the requirements of section 190.3, factor (b).'’ Appellant refused to be voluntarily handcuffed and removed from his cell. He wanted to move the way he wanted to move. (7 RT 1462.) During the very first deployment of pepper spray, appellant reached his entire arm outof his cell through the food port and repeatedly attempted to grab the pepper spray canister from Officer Gatto’s hands. (7 RT 1465-1466, 1470; People’s Exhibit H-2.) Officer Gatto was able to avoid appellant’s reach. (People’s Exhibit H-2.) When Officer Gatto attempted to deploy additional pepper spray, appellant again reached through the food port, contacted Officer Gatto’s hand, and, after a short struggle, pulled the canister from Officer Gatto’s hands. (7 RT 1469; People’s Exhibit H-2.) Appellant contacted Officer Gatto’s hand when he grabbed the canister. (7 RT 1479-1481; People’s Exhibit H-2.) Appellant’s conduct of touching Officer Gatto’s hand and pulling the canister away from Officer Gatto’s grip, taken together with the surrounding circumstances, gaverise to the reasonable inference that appellant’s conduct of touching Officer Gatto’s hand,a battery, involved the attempted use offorce or violence,or at the least, a threat to use force or violence. (People v. Thomas (2011) 51 Cal.4th 449, 504-505 [evidencethat defendant sucked on victim’s neck, leaving a bruise, “admissible under section 190.3, factor (b) as ‘criminal activity by the defendant which 2 99involved the use or attempted use of force or violence’ ”’]; People v. Hamilton (2009) 45 Cal.4th 863, 933-934 [evidence that defendant spit on '” Appellant does not argue herethat the court abusedits discretion in finding substantial evidence existed to prove that appellant committed a battery. In a separate argument, infra, appellant argues there was insufficient evidence for the jury to determine he committed a battery. For consistency, respondentlimits the argument here to whether the court abusedits discretion in finding the battery involved force or violence under section 190.3, factor (b). 78 an officer admissible under section 190.3, factor (b) as a battery that involved the use or attempted use of force or violence]; People v. Burgener (2003) 29 Cal.4th 833, 868 [evidence that defendant threw waterat a correctional officer admissible under section 190.3, factor (b) as a battery that involved the use or attempted use of force or violence].) Under the circumstances,thetrial did not abuseits discretion when it concluded that appellant’s conduct during the April 18, 2000, battery involved the use or attempted use of force or violence or the threat thereof sufficient for admission under section 190.3, factor (b). 4. Admission of the March8, 1997, and April 18, 2000, Unadjudicated Offenses Did Not Violate the Federal Constitution Appellant contends that the erroneous admission of the March8, 1997, and April 18, 2000, unadjudicated offense violated the federal Constitution because they skewedthe sentence-selection process toward death and wereirrelevantto the jury’s penalty determination because they were “de minimus” violent conduct. (AOB 134-139.) As already shown, appellant forfeited any claim that the court abusedits discretion in admitting evidence of the March 8, 1997, and April 18, 2000, unadjudicated offenses under section 190.3, factor (b). In addition, on the merits, the court did not abuseits discretion in finding that the two unadjudicated offenses involved the use or attempted use offorce or violence or the express or implied threat of force or violence sufficient for admission under section 190.3, factor (b). Therefore, because the court ’ properly admitted the unadjudicated offenses as aggravating evidence pursuant to section 190.3, factor (b), the evidence did not impermissibly skew the jury’s penalty determination toward death and the evidence was not constitutionally irrelevant to the jury’s penalty determination. 79 C. Appellant Forfeited his Claims That there Was Insufficient Evidence to Support Seven of the Unadjudicated Offenses; On the Merits, Thereis Sufficient Evidence Appellant Committed the Seven Unadjudicated Offenses Beyond a Reasonable Doubt Appellant contendsthere wasinsufficient evidenceforthe jury to find beyond a reasonable doubt that he committed seven of the 11 unadjudicated offenses presented in the penalty phase. (AOB 140-174.) Specifically, appellant contends there wasinsufficient that he: (1) committed an assault on March 8, 1997; (2) committed a battery on March 12, 1997; (3) committed an assault or battery on March 13, 1997; (4) committed an assault or possessed a weapon on November13, 1999; (5) possessed a weapon on March 29, 2000; (6) possessed a weapon on April 15, 2000; and (7) committed a battery on April 18, 2000. (Jbid.) Appellantforfeited his claims becausehe failed to object to the sufficiency of this evidenceattrial. 1. Appellant Forfeited His Claims That There Was Insufficient Evidence to Support a Finding He Committed the Seven Unadjudicated Offenses Beyond a Reasonable Doubt Following the guilt phase, the court inquired of the evidence the prosecution would present during the penalty phase. (5 RT 1192.) The prosecutor stated that he would present evidence ofunadjudicated offenses pursuantto section 190.3, factor(b), listed the dates and general descriptions of the unadjudicated offenses, and stated that the unadjudicated offenses violated section 4501.5 (battery by prisoner on a non-confined person) and 4502 (possession of a manufactured weapon). (5 RT 1192- 1193.) Subsequently, when the court inquired whethereither party “anticipate[d] any evidentiary problemsasfar as the penalty phase, motions in limine, anything of that nature,” appellant’s only concern was the scheduling of witnesses. (5 RT 1195-1197.) 80 At the penalty phase, Officer Dewalltestified regarding the March 8, ‘1997, cell extraction of appellant at High Desert State Prison. (6 RT 1216- 1217.) During Officer Dewall’s testimony, the court, on its own accord, questioned whether appellant’s conduct evidenced a criminal offense. (6 RT 1233-1234.) After the prosecutor further questioned Officer Dewall outside the presenceofthe jury, the court wassatisfied that appellant committed an assault and allowed Officer Dewall to continuehis testimony. (6 RT 1236-1237.) Appellant did not indicate that he joined in the court’s concerns or disagreed with the court’s ultimate decision. Also during the penalty phase, Officer Gatto testified regarding the April 18, 2000, cell extraction of appellant at Corcoran State Prison. (7 RT 1458-1459.) During Officer Gatto’s testimony, the court, on its own accord, questioned whether appellant’s conduct evidenceda criminal offense. (7 RT 1476-1480.) After the prosecutor further questioned Officer Gatto outside the presence ofthe jury, the court wassatisfied that appellant had committed a battery and allowed Officer Gatto to continue his testimony. (7 RT 1478-1480.) Appellant did not indicate that he joined in the court’s concernsor disagreed with the court’s ultimate decision. In fact, when the court asked appellant’s trial counsel if she had any comment appellant’s trial counsel stated she did not. (7 RT 1480-1481.) 9 Finally, during the penalty phase, numerous witnessestestified about other incidents of appellant’s violent conductin prison. Appellant did not object to, or moveto excludeor strike, the evidence on the groundthat the evidence wasinsufficient to support a finding that appellant committed the unadjudicated offenses. Appellant also did not contest the sufficiency of evidence whenthe prosecution rested its penalty phase case or anytime thereafter. Appellant forfeited his claims that there was insufficient evidence of the seven unadjudicated offenses. On appeal, a criminal defendant may 81 challenge the sufficiency of the evidence to support a conviction without an objection. (People v. Livingston, supra, 53 Cal.4th at p. 1175.) However, as this Court explained in People v. Montiel, supra, 5 Cal.4th 877, Evenif defendant need do nothingattrial to preserve an appellate claim that evidence supporting his conviction is legally insufficient, a different rule is appropriate for evidence presented at the penalty phaseofa capital trial. There the ultimateissueis the appropriate punishmentfor the capital crime, and evidence on that issue may include one or more other discrete criminal incidents. (§ 190.3, factor (b), (c).) If the accused thinks evidence on anysuch discrete crimeis too insubstantial for jury consideration, he should be obliged in general termsto object, or to move to excludeor strike the evidence, on that ground. [Citations.| (Id. at p. 928, fn. 23; see also People v. Livingston, supra, at p. 1175.) Because appellant did not object to, or move to exclude or strike, any of the evidence on the groundsthatit was insufficient, he has forfeited his claims of error on appeal. | 2. On the Merits, Sufficient Evidence Supports a Finding Appellant Committed the Seven Unadjudicated Offenses beyond a Reasonable Doubt a. Sufficient Evidence Supports a Finding That Appellant Committed an Assault on March 8, 1997, and That His Actions Were Not Done in Lawful Self-Defense Appellant contends there was insufficient evidence he committed an assault on March 8, 1997, during a cell extraction at High Desert State Prison. (AOB 140-149.) Insupport of his claim, appellant offers innocent explanations for his actions. (AOB 140-143.) Appellant further argues that the prosecution failed to prove beyond a reasonable doubtthat he was not acting in lawful self-defense in response to officers’ unreasonable and excessive force. (AOB 143-149.) Respondentdisagrees. 82 (1) The Evidence and the Court’s Instructions As described more thoroughly above in ArgumentV,subsection B(3)(a), and adopted fully herein, appellant and Frutos coveredtheir cell door windows on March 8, 1997. (6 RT 1217, 1219-1223.) Appellant and Frutos refused to removethe materials and repeatedly refused to be voluntarily handcuffed and removed from the cell before, during, and after the officers deployed pepper spray and discharged less-lethal ammunition into the cell in an attempt to obtain appellant and Frutos’ compliance. (6 RT 1222-1227; People’s Exhibit A-1.) When officers openedthe cell door to discharge the last two rounds of less-iethal ammunition before entering the cell, appellant immediately charged towardthe officers. (6 RT 1237; People’s Exhibit A-1.) To determine if appellant committed an assault, the court instructed the jury with CALJIC Nos. 9.00 (Assault-Defined) and 9.01 (Assault- Present Ability to Commit Injury Necessary). (10 CT 2732-2734.) Out of an abundanceofcaution,the court also instructed the jury regarding unreasonable and excessive force and lawfulself-defense. (7 RT 1610- 1612; 8 RT 1627-1631.) Asrelevant to the issue of lawfulself-defense, the court included the following paragraph in CALJIC No.9.00: A willful application of physical force upon the person of another is not unlawful when donein lawful self-defense against the use of excessive force by a correctional officer. The People have the burdento prove that the application of physical force wasnot in lawful self-defense. If you have a reasonable doubt that the application of physical force was unlawful, you maynot considerthat activity as a circumstancein aggravation. (10 CT 2732-2733, brackets omitted.) Also relevant to the issue of lawful self-defense, the court instructed the jury with CALJIC Nos. 9.26 (Arrest or Detention-Use of Reasonable Force-Duty to Submit) and 5.51 (Self- Defense-Actual Danger Not Necessary): 83 A correctional officer may lawfully require a prisoner to movefrom onecell to another for purposesofprison administration, andif a prisoner refuses to comply with lawful directions the correctional officer may use reasonable force to compel compliance. The officer need notretreat or desist from his efforts by reasonofthe resistance or threatened resistance of the prisoner. Wherea correctional officer is in the lawful performance of his duties, and the prisoner has knowledge,or by the exercise of reasonable care should have knowledge,that he is being given lawful directions by a correctional officers, it is the duty of the prisonerto refrain from using force or any weaponto resist the directions of the correctional officer unless unreasonable or excessive force is being used against the prisoner. However,if you find that the correctional officer used unreasonable or excessive force in controlling the prisoner,the . prisoner may lawfully use reasonable force to defend himself against the use of the excessive force. (10 CT 2737; CALJIC No. 9.26, brackets omitted.) Actual dangeris not necessary to justify self-defense. If one is confronted by the appearance of danger which arousesin [his] [her] mind, as a reasonable person,an actual belief and fear that [he] [she] is about to suffer excessive force, and if a reasonable person in a like situation, seeing and knowing the samefacts, would bejustified in believing [himself] [herself] in like danger of suffering excessive force andif that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the dangeris real or merely apparent. (10 CT 2738; CALJIC No. 5.51, brackets in original.) (2) Sufficient Evidence of Assault An assault is “an unlawful attempt, coupled with a presentability, to commit a violent injury on the person of another.” (§ 240.) “‘The “violent injury” here mentioned is not synonymous with “bodily harm,”but includes any wrongful act committed by means of physical force against the person 84 of another...’ [Citation.]” (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12.) “‘In other words,force against the person is enough,it need not be violent or severe, 1t need not cause bodily harm or even pain, and it need not leave any mark.’ [Citation.]” (/bid.) Assault requires “an intentional act and actual knowledgeofthose facts sufficient to establish that the act by its nature will probably anddirectly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.) In addition, the present ability element“is satisfied when ‘a defendant has attained the meansandlocation to strike immediately.’ [Citations.] In this context, however, ‘immediately’ does not mean ‘instantaneously.’ It simply meansthat the defendant must havetheability to inflict injury on the present occasion.” (People v. Chance (2008) 44 Cal.4th 1164, 1168.) Appellant’s claim of insufficient evidence is based entirely on his one-sided view that his actions have innocent explanations. (AOB 141- 143.) For example, appellantasserts that he did not charge towardofficers, but “simply attempt[ed] to cometo the front ofthecell, as he had been ordered to do....” (AOB 141.) He further suggests that he went to the front of the cell because the less-lethal ammunition caused him to be disorientated. (AOB 141-142.) Finally, appellant asserts that he carried the mattress in front of him not only for his own protection, but for the officers’ protection. (AOB 142.) The record does not support appellant’s innocent explanations. This Court’s task is to look at all of the evidence, along with the inferences that reasonably could be deducedtherefrom,notisolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Officer Dewall testified that inmates were not allowed to leavetheir cells without first being handcuffed. (6 RT 1219- 1220, 1237.) During the course of the incident, appellant repeatedly refused to voluntarily cuff-up and exit the cell. (6 RT 1223-1226.) Telling 85 of his true intentions was appellant’s refusal between the second andthird set of less-lethal ammunition. (6 RT 1226; People’s Exhibit A-1.) Immediately following this refusal, officers opened the cell door to dischargea third set of less-lethal ammunition. (6 RT 1237; People’s Exhibit A-1.) Before officers could fire the ammunition into thecell, appellant metofficers at the entrance of the cell with a mattress in frontof him and charged toward officers. (/bid.) This evidence and the reasonable inferencesestablish that appellant was not complying with the officers’ demandsto exit the cell, was not disorientated, and wasnot carrying the mattress to protect the officers. Instead, the evidence showsthat appellant refused to exit his cell voluntarily, waited by his cell door for officers to open the cell door again, and then intentionally charged toward officers at the most unsuspecting and opportunetime. Moreover, the jury, who had the benefit of watching the video recording ofthe incident, was entitled to credit Officer Dewall’s characterization of appellant’s actions as “charging”and, given appellant’s repeated refusals to voluntarily cuff-up, could determine appellant’s actions were intentional andwillful. A reasonable jury could also find that a reasonable person tn appellant’s position would haverealized that charging toward officers standing directly outside his cell would result in physical force being applied to those officers. Appellant was aware that officers were outside his cell preparing to enter and remove him from thecell; the cell door had to be opened a numberoftimes to discharge less-lethal ammunition into the cell. (6 RT 1225-1226; People’s Exhibit A-1.) Knowingthat officers were standing outside his cell door, appellant would have knownthat if he chargedoutofhis cell directly toward those officers he would apply ‘physical force to those officers when he made contact with them. 86 _ Finally, a reasonable jury could find that appellant had the present ability to apply force to the officers. Appellant positioned himself at the cell door’s entrance. (People’s Exhibit A-1.) Whenthe cell door opened, appellant was able to charge toward officers through the openedcell door. (6 RT 1237; People’s Exhibit A-1.) Therefore, on the entire record, substantial evidence supports a finding that appellant committed an assault on March8, 1997. (3) Acts Not Done in Lawful Self-Defense Despite the court’s instructions, appellant did not argueattrial that the officers’ actions were unlawful or excessive, or that he acted in self- defense. On the contrary, appellant and his trial counsel admitted that appellant intentionally forced the cell extractions. (8 RT 1692-1693; 9 CT 2422.) Nevertheless, the evidence presentedto the jury did not support a finding that appellant acted in lawful self-defense. Appellant’s actions were not done in lawfulself-defense in response to unreasonable or excessive force. The prosecution proved beyond a reasonable doubt that officers did not use unreasonable or excessive force. The uncontroverted evidence showedthat it was a violation of institutional rules for inmates to covertheir cell door windows,even if officers could - still see inside the cell through the food port.'* (6 RT 1222-1223, 1250- '8 On appeal, appellant attacksthe rule prohibiting inmates from covering their cell door windows. (AOB 146-147.) He argues that it was unreasonable for officers to use any force in this situation becauseofficers could have looked through the unblocked food port to account for inmates. (Ibid.) Appellant ignores that it was a violation ofinstitutional rules for inmates to cover their cell door windows. (6 RT 1222-1223, 1250-1251.) Healso ignoresthat it would be unreasonable for officers to look through an unblocked food port to see inside the cell. As the evidenceat the penalty phase showed, looking through the food port to see inside a cell was not a reasonable alternative. On oneoccasion,appellant reached through the food port and grabbed an officer and the pepper spray canister the officer (continued...) 87 1251.) Appellant violated this rule when he repeatedly refused to remove the materials covering his cell door windows. (6 RT 1222-1223.) Appellant also repeatedly refused to submit to being handcuffed and removed from his cell so officers could remove the materials from the cell door windows. (6 RT 1224.) Appellant’s actions forced officers to initiate procedures to remove appellant from his cell. (6 RT 1222.) The evidence was uncontroverted that the use ofpepper spray to gain an inmate’s compliance to be handcuffed and removed from his cell was not unreasonable or excessive force. Officer Dewalltestified that when a cell extraction is deemed necessary,officers first deploy pepper spray into the cell to attempt to gain an inmate’s compliance. (6 RT 1218.) Officers deploy the pepper spray into the cell three times in two-second bursts. (6 RT 1223-1224.) Officers wait a few minutes between each deployment. (Ibid.) Here, the officers’ actions were consistent with that procedure. Officer Dewall notified appellant that if he continued to refuse to remove the window coverings and refused to voluntarily be placed in handcuffs and removed from hiscell, officers would use pepper spray and physical force, if necessary, to remove him from his cell. (People’s Exhibit A-2.) Despite the notification, appellant refused, and continuedto refuse, after each deployment of pepper spray. (6 RT 1224.) No evidence was (...continued) was holding. (7 RT 1469-1470, People’s Exhibit H-2.) On another occasion, appellant threw a substance containing urine and fecesat officers through the food port. (6 RT 1239-1240.) On yet another occasion, appellant threw sharp piecesofhis broken television set at officers through the food port. (6 RT 1346.) Clearly, it was not a reasonable alternative for officers to rely on an unblocked food port to see inside the cell. Therefore, the use of pepper spray andless-lethal ammunition to remove an inmate whorefused to remove materials from their cell door windows and repeatedly refused to voluntarily be handcuffed and removedfrom thecell wasnot unreasonable force. 88 presentedattrial that the prison’s policy of using pepperspray,orits specific deployment of pepper spray on March 8, 1997, was unreasonable or excessive force in responseto appellant’s repeated refusals to removethe materials from his cell door windowsand his repeated refusals to submit to being handcuffed and removedfrom his cell. In other words, “[t]he evidence ... did not raise any legal justification for [appellant’s] actions, and, therefore the prosecution was not required to introduce evidence negating any possible justification for theactivities. [Citation.]” (People v. Moore (2011) 51 Cal.4th 1104, 1136.) From the evidence onthis record, a reasonabletrier of fact could reasonably concludethat officers used necessary, not excessive, force to discharge their duty to secure appellant and removehim from thecell. The evidence wasalso uncontroverted that the use of less-lethal ammunition to gain an inmate’s compliance andto makeit safer forofficers to enter the cell was not unreasonable or excessive force.’? Officer Dewall testified that the 37-millimeter launcheris a “departmentally approved” weaponfor use in cell extractions in orderto distract, intimidate, and force '? On appeal, citing Madrid v. Gomez (1995) 889 F.Supp.1146, 1175 (Madrid), appellant argues that the use of less-lethal ammunition during cell extractions has been criticized. (AOB 147-148.) First, this evidence appellant now cites on appeal, or any evidencecriticizing the use ofless- lethal ammunition, was not presentedat trial. In fact, no evidence was presentedattrial to cast doubt on High Desert State Prison’s “departmentally approved”use of the 37-millimeter launcher. (6 RT 1225.) Second, even if Madrid is considered persuasive on appeal (People v. Gonzales (2011) 52 Cal.4th 254, 296 [lower federal court persuasive but not controlling), Madrid did not believe that the use ofless-lethal ammunition should be prohibited. (Madrid, supra, at 1178.) Madrid’s criticism of less-lethal ammunition occurred in the contextof the court’s concern that cell extractions at Pelican Bay State Prison were being used as opportunities to punish andinflict pain on inmates. (/bid.) No such concern waspresented or occurred in this case. 89 inmates away from the cell doors for staff to enter the cells without resistance. (6 RT 1225-1226, 1253, 1255.) He furthertestified that officers discharge six rounds, twoat a time, into the cell. (6 RT 1226.) Officers wait between each set of rounds and request that inmates voluntarily cuff- up and exit the cell. (/bid.) On March 8, 1997, officers followed these procedures, and appellant refused to comply during each request. (6 RT 1226.) No evidence waspresentedattrial that the prison’s policy of using less-lethal ammunition,or the prison’s specific use ofless-lethal ammunition on March 8, 1997, was unreasonable or excessive force in responseto appellant’s repeated refusals to submit to being handcuffed and removedfrom his cell. As a result, the prosecution proved beyond a reasonable doubtthat the officers did not use unreasonable or excessive force to removeappellant from his cell on March 8, 1997. In other words, “(t]he evidence ... did not raise any legaljustification for [appellant’s] actions, and, therefore the prosecution was not required to introduce evidence negating any possible justification for the activities. [Citation.]” (People v. Moore, supra, 51 Cal.4th at p. 1136.) From the evidence on this record, a reasonabletrier of fact could reasonably conclude that officers used necessary, not excessive, force to discharge their duty to secure appellant and remove him from thecell. The prosecution also proved beyond a reasonable doubtthat officers did not engagein behavior appellant believed put him in danger of suffering excessive force. Appellant repeatedly refused to be handcuffed and removedfrom his cell. (6 RT 1222-1224, 1226.) He refused to comply after Officer Dewall told him that pepper spray would be deployed into the cell and he would be physically removed from thecell, if necessary. (People’s Exhibit A-2.) Appellant refused to comply after each deployment of pepper spray. (6 RT 1223-1224.) Appellant refused to comply after the first set of less-lethal ammunition rounds. (6 RT 1226.) Appellant refused 90 to comply after the secondset.of less-lethal ammunition. (Ibid.) Immediately after appellant’s refusal, appellant charged towardthe officers when they opened the cell door to administer the third set of less-lethal ammunition and to remove him from the cell. (6 RT 1228, 1237; People’s Exhibit A-2.) Appellant’s continued refusals, knowingthat officers would deploy pepperspray andless-lethal ammunition, prove beyond a reasonable doubt that he did not believe the officers’ actions put him in danger of suffering excessive force. Underall the circumstances, the prosecution proved beyond a reasonable doubt that appellant committed an assault and that appellant’s action of charging toward officers was not done in lawful self-defense. As a result, appellant’s claim there was insufficient evidence to prove he committed an assault on March 8, 1997, is without merit. b. Sufficient Evidence Supports a Finding that Appellant Committed a Battery on a Non- Confined Person on March 12, 1997 Appellant contendsthere is insufficient evidence to support a finding he committed a battery on a non-confined person on March 12, 1997. (AOB 149-150.) Appellant does not contest that a battery occurred, only that the evidence does not show beyonda reasonable doubt he was the person, or one of the people, who threw a milk cartonfilled with a substance containing urine and feces through the food port. (Ibid.) - Respondentdisagrees. On March 12, 1997, appellant and his cellmate, Romo, covered their cell windows. (6 RT 1238.) Officers repeatedly requested that appellant and Romo removethe materials from the windows. (/bid.) Appellant and Romorefused to comply with the officers’ requests. ([bid.) In an attempt to see where appellant and Romowerepositioned inside the cell, Officer Dewall placed a Plexiglas shield in front of the cell door, 9] openedthe food port, and shineda flashlight into the cell through the food port. (6 RT 1239.) As Officer Dewall was attempting to look inside the cell, two small milk cartons were thrown through the food port. (/bid.) Both cartonsstruck the Plexiglas shield, and a yellowish-brown substance smelling of feces and urine splashed from the cartons onto the Plexiglas shield and Officer Dewall’s right arm, face, and head. (Ibid.) The substance also splashed on Officer Hahn who wasstanding nearby. (6 RT 1240.) Officer Dewall did not see who threw the cartons through the food port. (6 RT 1257.) Subsequently, appellant and Romocontinuedto refuse to comply, and officers prepared to remove appellant and Romofrom their cell. (bid.) The evidence supports a finding that appellant and Romo each threw one of the milk cartons through the food port. Officer Dewalltestified that two small milk cartons were thrown through the food port. (6 RT 1239.) Both milk cartons hit the Plexiglas shield that was positionedin front of the food port and splashed a substance onto Officer Dewall.. Ibid.) Officer Dewall immediately closed the food port. (6 RT 1240.) From this evidence, a reasonable inference could be madethat the two milk cartons were simultaneously, or in rapid succession, thrown through the food port because the food port was closed immediately thereafter. The jury had the benefit ofbeing able to determine the approximate size of the food port on appellant and Romo’scell door. Officer Dewall testified that on March 12, 1997, appellant was in section A-5, cell 217. (6 RT 1238.) Healsotestified that a few days earlier, on March 8, 1997, appellant wasin section A-5, cell 116. (6 RT 1221.) A video recording was taken of the March 8, 1997, incident. (People’s Exhibit A-1.) The video of the March 8, 1997, incident provided an example of the size and location of the food port on appellant and Romo’s cell door in section A-5. 92 From an entirety of the evidence, a reasonable inference was that both Romoandappellant each threw a milk carton through the food port. As the evidence shows,the milk cartons were thrown either simultaneously or in rapid succession througha relatively small openingin the cell door with enoughforce to cause the substanceinside the cartonsto splatter out of the cartons after striking the Plexiglas shield. For such accuracyto occur, appellant and Romo each would have had to have throwna carton. Accuracy would not have been present if one person threw two milk cartons, either one in each hand or two in one hand. On the entire record, a rational trier of fact could find that appellant personally threw one of the milk cartons containing urine and feces and therefore committed the March 12, 1997, battery beyond a reasonable doubt. Even if the evidence does not support a finding appellant personally threw one of the milk cartons, the record supports a finding appellant aided and abetted Romoin committing a battery on Officer Dewall. “[A]n aider and abettor is a person who,‘acting with ... knowledgeof the unlawful purposeof the perpetrator; and ... the intent or purpose of committing, encouraging,or facilitating the commission ofthe offense, ... by act or advice aids, promotes, encouragesor instigates, the commission ofthe . crime.’ ” (People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.) Here, both Romo andappellant repeatedly refused to abide by Officer Dewall’s demandsto remove the coverings from the cell windows, cuff-up, and exit the cell. (6 RT 1238.) Appellant knew that if he refused to comply, officers would forcibly remove him from thecell. Four days earlier, appellant and his former cellmate, Frutos, coveredtheir cell windows,refused to remove the coverings, and forced officers to enter the cell. (6 RT 1221-1223, 1227-1228.) Given appellant and Romo’s refusals to comply,it was a reasonable conclusion that appellant and Romo werein 93 agreement that they would force officers to extract them from their cell. It wasalso reasonable to conclude that because of appellant and Romo’s collusion, appellant knew that two milk cartons containing urine and feces were inside his cell and that Romo wasgoing to throw them at officers. On the evidence presented, the jury could reasonably conclude that appellant, acting with the intent for Romo to commit a battery, and with knowledge that Romo would throw the milk cartons containing urine and feces at an officer, encouragedorinstigated the battery by colluding with Romoto force officers to initiate a cell extraction. Underall the circumstances, the prosecution proved beyonda reasonable doubt appellant committed a battery. As a result, appellant’s claim there was insufficient evidence to prove he committed a battery on March 12, 1997, is without merit. c. Sufficient Evidence Supports a Finding That Appellant Committed a Battery on a Non- Confined Person on March 13, 1997, and That His Actions Were Not Done in Lawful Self-Defense Appellant contends there wasinsufficient evidence he assaulted an officer on March 13, 1997. (AOB 151-155.) He arguesthat the prosecution failed to establish the elements of assault or battery and failed to establish that his actions were not done in lawful self-defense. (AOB 153-155.) Respondent disagrees. (1) The Evidence and the Court’s Instructions On March 13, 1997, following the “gassing” andofficers’ requests for appellant and Romoto voluntarily submit to being handcuffed and removed from their cell, officer prepared to extract appellant and Romo from the cell. (6 RT 1240.) Prior to entering, officers deployed pepper spray through a small opening onthe side of the cell door. (6 RT 1242-1243.) Each deploymentofpepper spray was followed by a request for appellant 94 and Romoto cuff-up and exit the cell. (6 RT 1242-1243.) Appellant and Romorefused to comply. (6 RT 1243.) Officers then discharged two roundsofless-lethal rabber ammunition from a 37-millimeter launcher into the cell, followed by a request for appellant and Romoto voluntarily cuff- up and exit the cell. (6 RT 1244.) Appellant and Romoagain refused to comply, and officers discharged two more roundsof less-lethal ammunition into the cell. (/bid.) Officers repeated the above sequence once more, and appellant and Romoagain refused to comply. Following appellant and Romo’s continuedrefusals, six officers entered the cell. (6 RT 1245.) Appellant and Romophysically and violently fought with the officers. (/bid.) Officer Dewall rated appellant and Romo’slevel of violence as a nine on a scale of 10. (Ibid.) Shortly after enteringthe cell, two officer exited the cell before appellant and Romo could be restrained. ([bid.) Officer Dewall entered the cell and saw appellant on top of Officer Hornbeck who waslying on his back near the cell door. (6 RT 1246.) Appellant washitting Officer Hornbeck in the chest. (6 RT 1246.) Officer Dewall obtaineda baton andstruck appellant six times in the upper torso. (6 RT 1246-1247.) Appellant continued to hit Officer Hornbeck while Officer Dewall hit appellant with the baton. (6 RT 1247) Appellant eventually rolled off Officer Hornbeck,andofficers subdued appellant. (/bid.) To determineif appellant committed a battery on a non-confined person (§ 4501.5), the court instructed the jury with CALJIC No. 7.37 as follows: Every person confinedin state prison of this state who willfully [and unlawfully] uses any force or violence upon the person ofany individualnot a confined persontherein is guilty of the crimeofbattery by prisoner on non-confinedperson in violation of Penal Code Section 4501.5. 95 In order to prove this crime, each of the following elements must be proved: 1. A person used force or violence upon another; 2. The use of force or violence was willful [and unlawful]; 3. The person who usedforce or violence wasatthe time confinedin state prison ofthis state; and 4. The person upon whom the force or violence was inflicted was notat the time confined within that prison. [The use of force or violence is not unlawful when done in lawful[self-defense]. The burden is on the People to prove that the use of force or violence wasnot in lawful [self-defense]. If you have a reasonable doubtthat the use of force or violence was unlawful, you must find the defendant not guilty. ] (10 CT 2735, brackets in original.) The court further defined for the jury “force and violence”as relevant to battery: Asused in the foregoing instruction, the words“force” and “violence” are synonymous and mean any [unlawful] application of physical force against the person of another, even thoughit causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured bythe act. The slightest [unlawful] touching, if done in an insolent, rude, or an angry manner,is sufficient. It is not necessary that the touching be donein actual anger or with actual malice; it is sufficient if it was unwarranted and unjustified. The touching essential to a battery may be a touching of the person, of the person’s clothing, or of something attached to or closely connected with the person. (10 CT 2736, brackets in original.) Finally, out an abundanceof caution (7 RT 1610-1612; 8 RT 1627-1631), the court instructed the jury with CALJIC Nos. 9.26 (Arrest or Detention-Use of Reasonable Force-Duty to Submit) and 5.51 (Self-Defense-Actual Danger Not Necessary). (10 CT 2737-2738.) 96 (2) Sufficient Evidence of Battery Ample evidence supports a finding that appellant committed a battery on March 13, 1997. A reasonable jury could find beyonda reasonable doubt appellant used force or violence upon Officer Hornbeck and that his use of force was willful. Appellant physically and violently fought with officers when the officers entered the cell. (6 RT 1245.) Uponthis evidence alone, the jury could find that appellant used willful force or violence upon another. But there is more. Appellant got on top of Officer Hornbeck as Officer Hornbeck lay on his back on the ground and repeatedly hit Officer Hornbeck in the chest.” (6 RT 1246-1247.) (3) Act Not Done in Lawful Self-Defense Despite the court’s instructions, appellant did not argue attrial that the officers’ actions were unlawful or excessive, or that he actedin self- defense. On the contrary, appellant and his trial counsel admitted that appellant intentionally forced thecell extractions. (8 RT 1692-1693; 9 CT 2422.) Nevertheless, the evidence presented to the jury did not support a finding that appellant acted in lawfulself-defense. Appellant’s actions were not done in lawful self-defense in response to unreasonable or excessive force. The prosecution proved beyond a reasonable doubt that officers did not use unreasonable or excessive force. The uncontroverted evidence showedthatit was violation ofinstitutional rules for inmates to covertheir cell door windows, evenif officers could look inside the cell through the food port.) (6 RT 1222-1223, 1250-1251 ) *0 Appellant does not challenge the sufficiency of evidence on elements three and four of CALJIC No.7.37, that appellant was confined and Officer Hornbeck wasnot confined in a state prison when appellant used force or violence on Officer Hornbeck. (10 CT 2735.) 1 On appeal, appellant attacks the rule prohibiting inmates from covering their cell door windows. (AOB 154.) He arguesthat it was (continued...) 97 Appellantviolated this rule when he repeatedly refused to remove the materials covering his cell door windows. (6 RT 1238, 1241.) Appellant also repeatedly refused to submit to being handcuffed and removed from his cell so officers could remove the materials from the cell door windows. (6 RT 1240.) Appellant’s actions forced officers to initiate procedures to removeappellant from his cell. (6 RT 1240-1241.) The evidence was uncontroverted that the use of pepper spray to gain an inmate’s compliance to be handcuffed and removed from hiscell was not unreasonable or excessive force. As discussed above, Officer Dewall testified that when acell extraction is deemed necessary, officers first deploy pepperspray into the cell to attempt to gain an inmate’s compliance. (6 RT 1218; see also 6 RT 1223-1224.) Here, on March 13, 1997, Officer Dewall followed the prison’s policy. (6 RT 1242-1243.) After each deployment of pepper spray, appellant refused to cuff-up andexit the cell. (6 RT 1243.) No evidence waspresentedat trial that the prison’s policy of using pepper spray, or its specific deployment of pepper spray on March 13, 1997, was unreasonable or excessive force in responseto appellant’s repeated refusals to remove the materials from his cell door windows and his repeated refusals to submit to being handcuffed and removedfrom his cell. In other words, “[t]he evidence ... did not raise any legaljustification for [appellant’s] actions, and, therefore the prosecution was not required to imtroduce evidence negating any possible justification for the activities. [Citation.]” (People v. Moore, supra, 51 Cal.4th at p. 1136.) From the evidenceon this record, a reasonabletrier of fact could reasonably conclude (...continued) unreasonable forofficers to use any forcein this situation becauseofficers could have looked through the unblocked food port to accountfor inmates. (Ibid.) It was not a reasonable alternative for officers to rely on an unblocked food port to see inside the cell. (See fn. 18.) 98 that officers used necessary, not excessive, force to discharge their duty to secure appellant and remove him fromthecell. The evidence wasalso uncontrovertedthat the use of less-lethal ammunition to gain an inmate’s compliance and to makeit safer for officers to enter the cell was not unreasonable or excessive force. (See fn. 19.) As discussed above, Officer Dewalltestified that the 37-millimeter launcheris a “departmentally approved” weaponforusein cell extractions in order to distract, intimidate, and force inmates away from thecell doors for staff to enter the cells without resistance. (6 RT 1225-1226, 1253, 1255.) On March 13, 1997, officers followed these procedures, and appellant refused to comply during each request. (6 RT 1244.) No evidence waspresentedat trial that the prison’s policy of using less-lethal ammunition,or the prison’s specific use of less-lethal ammunition on March 13, 1997, was unreasonable or excessive force in response to appellant’s repeated refusals to submit to being handcuffed and removed from his cell. In other words, “[t]he evidence ... did not raise any legal justification for [appellant’s] actions, and, therefore the prosecution wasnot required to introduce evidence negating anypossible justification for the activities. [Citation.]” (People v. Moore, supra, 51 Cal.4th at p. 1136.) From the evidence on this record, a reasonabletrier of fact could reasonably concludethatofficers used necessary, not excessive, force to discharge their duty to secure appellant and remove him from thecell. The prosecution also proved beyond a reasonable doubtthatofficers, including Officer Hombeck, did not engage in behaviorthat appellant believed put him in danger of suffering excessive force. Officer Dewall testified that the six-memberextraction team entered appellant’s cell, and appellant and Romo immediately physically fought with the officers. (6RT 1245.) During the violent confrontation, two team membersexited thecell. (/bid.) Officer Dewall then enteredthe cell and saw appellant on top of 99 Officer Hornbeck who waslying on his back on the ground. (6 RT 1246.) Appellant was hitting Officer Hornbeckin the chest. (/bid.) Officer Dewall exited the cell to obtain a baton. (/bid.) When Officer Dewall returned to the cell, appellant wasstill on top of Officer Hombeck and hitting him in the chest. (6 RT 1246-1247.) Based on this evidence, appellant urges this Court to conclude that the prosecution failed to prove beyond a reasonable doubt that appellant did not act in lawful self-defense on the basis of a series of unknowns: it was unknownhow the altercation between appellant and Officer Hornbeck began (AOB 154); it was unknown howappellant cameto be on top of Officer Hornbeck (AOB 155); and it was unknown whether Officer Hornbeck used unreasonable force prior to appellant getting on top of Officer Hornbeck (AOB 155). However, a lack of evidence that appellant wasnotacting in self-defense is not evidence that he was lawfully defending himself. More, appellant repeatedly refused to be handcuffed and removed from his cell after each deployment of pepper spray and less-lethal ammunition. (6 RT 1240, 1243, 1244.) Appellant had previously forced officers to extract him from his cell just five days earlier and he knew that officers would deploy pepperspray andless-lethal ammunition and enter the cell to attempt to restrain him. (6 RT 1221.) Appellant’s repeated refusals, made with knowledge of the methods used to obtain his compliance, prove beyond a reasonable doubt that appellant did not believe the officers’ actions put him in danger of suffering excessive force. Underall the circumstances, where it is clear that appellant intentionally forced officers to enter his cell, that appellant fought with officers, that appellant got on top of Officer Hornbeck and repeatedly hit Officer Hornbeck in the chest, and there is no evidence that Officer Hornbeckor the other officers were the aggressors, the prosecution proved 100 beyond a reasonable doubt that appellant committed a battery and that appellant’s actions of physically fighting with officers and repeatedly hitting Officer Hornbeck in the chest was not donein lawfulself-defense. As a result, appellant’s claim there wasinsufficient evidence to prove he committed a battery on March 13, 1997, is without merit. d. Sufficient Evidence Supports a Finding That Appellant Possessed a Weapon and Assaulted another Inmate on November13, ~ 1999 Appellant contends there. was insufficient evidence for the jury to determine that he knowingly possessed a weapon protruding from his cell door on November13, 1999. (AOB 155-158.) He argues the evidence did not show that the weapon wasever within his control or that he was the person that caused the weaponto protrude from his cell door. (AOB 157- 158.) Appellant further contends there wasinsufficient evidencefor the jury to determine heassaulted another inmate on November13, 1999. (AOB 158-160.) Respondent disagrees. (1) The Evidence and the Court’s Instructions Officer Tovartestified regarding appellant’s November13, 1999, weaponspossession andassault on an inmate. Officer Tovarfirst testified regarding the Security Housing Unit at Corcoran State Prison. He explained that inmates housed in the Security Housing Unit are not allowed to leave their cell unhandcuffed and unaccompanied by an officer. (6 RT 1293-1294.) He thentestified that on November 13, 1999, he escorted Lopez to the showerthat wasnext to appellant’s cell. (6 RT 1292, 1294, 1298.) As Lopez entered the shower, Lopez turnedto his right and kicked toward appellant’s cell door, cell number 6. (6 RT 1297-1298, 1300, 1310.) Officer Tovar looked toward appellant’s cell, saw an object protruding from the side ofthe food port, pushed Lopez into the shower, 101 and then kicked the object that was protruding from appellant’s cell door. (6 RT 1301-1302.) Officer Tovar’s kick caused the object to break apart. A portion of the object fell to the floor. (6 RT 1302.) The remainderofthe object was lodged in the gap onthe side of the food port. (6 RT 1302.) Officer Tovar grabbed the piece protruding from appellant’s cell door and retrieved the part of the object that had broken off and fallen to the floor. (bid.) The part of the objectthat fell to the ground wasa piece ofplastic fashionedinto a sharpened blade. (6 RT 1303-1304.) The part protruding from appellant’s cell door was rolled-up paper that was approximately 12 inches long. (6 RT 1303, 1314-1315.) The sharpened blade had been attached to the rolled-up paper. (6 RT 1308.) To determine whether appellant, a prisoner, possessed a weapon on November13, 1999, the court instructed the jury with CALJIC No. 7.38 as follows: Every person who,while confined in any penal institution, [possessesor carries upon [his] person or has under[his] custody or control] any instrument or weapon commonly known as a sharp instrument,is guilty of a violation of Penal Code Section 4502(a), a crime. [“Penal institution” means [the state prison].] In order to prove this crime, each of the following elements must be proved: 1. A person wasconfined in any penal institution; and 2. While so confined, [possessed or carried upon [his]] person or had under[[his] custody or control] an instrument or weapon commonly knownasa sharp instrument. (10 CT 2739, brackets in original.) The court further instructed the jury with the definition of “possession”as follows in CALJIC No.1.24: There are two kinds of possession: actual possession and constructive possession. 102 Actual possession requires that a person knowingly exercise direct physical control overa thing. Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. One person may havepossession alone, or two or more persons together may share actual or constructive possession. (10 CT 2740.) (2) Sufficient Evidence of Weapon Possession Sufficient evidence supports a finding appellant knowingly possessed a weapon while confined in a penal institution (§ 4502, subd.(a)) on November13, 1999.”* Officer Tovartestified that he saw the entire, intact obj ect, which includedthe sharpened point attached to the rolled-up-paper handle, protruding from the gap on the side of the food port on appellant’s cell door. (6 RT 1301-1302.) The sharpened point was attachedto the paperhandle until Officer Tovar kicked the weapon, causing the sharpened point to break away from the paper handle andfall to the floor. (6 RT 1302-1304.) Officer Tovaralsotestified that in the Security Housing Unit at Corcoran State Prison, officers handcuff and escort inmates when inmatesare outside of their cells. (6 RT 1293-1294.) Hefurthertestified that appellant was the inmate in cell number 6. (6 RT 1310.) Given these facts, it was not a reasonableinference that someoneother than appellant placed the weaponin the gap onthe side of the food port on appellant’s cell door. The only reasonable inference the jury could deduce from this evidence wasthat appellantcaused the weaponto protrude from inside his ”? Appellant does not challenge the sufficiency of evidence on element one of CALJIC No.7.38,that appellant was a person confinedin a penal institution. (10 CT 2739.) 103 cell through the gap on theside of the food port. Therefore, on the entire record, substantial evidence supports a finding that appellant knowingly possessed and had control of the weapon protruding from his cell, and that appellant committed the November 13, 1999, weapons possession beyond a reasonable doubt. (3) Sufficient Evidence of Assault Sufficient evidence also supports a finding appellant assaulted Lopez on November 13, 1999. Anassault is “an unlawful attempt, coupled with a presentability, to commit a violent injury on the person of another.” (§ 240.) “‘The “violent injury” here mentioned is not synonymouswith “bodily harm,” but includes any wrongful act committed by meansof physical force against the person of another....” [Citation.]” (People v. Rocha, supra, 3 Cal.3d at p. 899, fn. 12.) “‘In other words, force against the person is enough,it need notbe violent or severe, it need not cause bodily harm or even pain, andit need not leave any mark.’ [Citation.]’” (Zbid.) Assault requires “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams, supra, 26 Cal.4th at p. 790.) In addition, the present ability element“is satisfied when ‘a defendant has attained the means andlocation to strike immediately.’ [Citations.] In this context, however, ‘immediately’ does not mean ‘instantaneously.’ It simply meansthat the defendant must have the ability to inflict injury on the present occasion.” (People v. Chance, supra, 44 Cal.4th at p. 1168.) To determine whether appellant assaulted Lopez, the court instructed the jury with CALJIC Nos. 9.00 and 9.01. (10 CT 2732-2734.) A reasonable jury could find beyond a reasonable doubt appellant intentionally caused the 12-inch weaponto protrude through the gap on the side of his food port and toward Lopez. As shown above, appellantfirst 104 possessed the weaponinsidehis cell and caused the weaponto protrude through the gap on the side ofthe food port. A reasonable jury could also find beyond a reasonable doubt appellant had actual knowledge of those facts sufficient to establish that causing a 12- inch weaponto protrude through a gap ontheside of the food port toward Lopez would probably anddirectly result in the application of physical force to Lopez. The jury could find that appellant saw Lopez approaching and then standing outside appellant’s cell. The jury saw a picture of appellant’s cell door, and testimony established that the cell doors in the Security Housing Unit were covered with dime-sized holes. (6 RT 1292- 1296.) The jury couldalso find that appellant was aware of the weapon’s qualities because he had possessed the weaponinhiscell before causingit to protrude through the gap onthe side of his food port. Given the above circumstances, any reasonable person wouldrealize that causing a 12-inch weaponto protrude througha cell door toward a person standing outside that door and near where the spear was protruding would probably result in physical force to that person. Finally, ample evidence also supports a finding that appellant had the present ability to apply physical force to Lopez. “California cases establish that when a defendant equips andpositions himself to carry out a battery, he has the ‘present ability ‘ required by section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and evenifthe victim or the surrounding circumstances thwart the infliction of injury.” (People v. Chance, supra, 44 Cal.4th at p. 1172.) As shownabove, appellant equipped himself with a 12-inch spear and caused that spearto protrude from his cell. Appellant was able to cause the weaponto protrude far enoughoutside of his cell that Lopez felt the need to turn and kick at the weapon. (6 RT 1300-1301, 1315.) A reasonable inference was that Lopez reacted to avoid being struck with the weapon, 105 and thus thwarted the infliction of injury. Therefore, on the entire record, substantial evidence supports a finding appellant committed an assault on November13, 1999. e. Sufficient Evidence Supports a Finding That Appellant Possessed a Weapon While in Custody on March 29, 2000 Appellant contends there was insufficient evidence for the jury to determine that on March 29, 2000, when he possessed a weapon while confined in a penalinstitution, he committed an act of violence or threat of violence. (AOB 160-165.) Appellant argues, “the mere possession of a weapondoesnot establish proof beyond a reasonable doubt of an implied threat of use of force or violence, a necessary elementoffactor (b) evidence.” (AOB 163-164.) Respondent disagrees. (1) The Evidence On March 29, 2000, appellant covered his cell door windows and requested to talk to Officer Pearson. (7 RT 1415.) Officer Pearson told appellant he would come backandtalk to him later. (7 RT 1419.) Appellant became upset andstated, “I guess when youtry to program [i.e. follow regulations] you don’t get anywhere. I got more attention when I wascausingall the trouble.” (/bid.) Appellant then requested to be transferred to an outside holdingcell to talk to Officer Pearson. (Ibid.) Officers escorted appellant to a rotunda holding cell. (/bid.) Oncein the holdingcell, with his handcuffs removed, appellant placed what appearedto be a piece of paper on the food port. (7 RT 1420.) Appellant told Officer Pearson, who was leaning against a nearbypillar, the item was “nothing” and sweptit onto the floor (see fn. 3). (7 RT 1420, 1422-1423.) Appellant and Officer Pearson continued to talk. (/bid.) Appellant wanted a radio for his cell and becameagitated when Officer 106 Pearson told appellant he could not have a radio because appellant had broken his previous television. (7 RT 1421.) While Officer Pearson continued to talk to appellant, Officer Mascarenassaw appellant place a weapon on the food port. (7 RT 1437- 1438.) Officer Mascarenasretrieved a video camera and recorded the interaction between appellant and Officer Pearson. (7 RT 1438.) Once Officer Pearson wasfinished speaking to appellant and walked away, appellant took the weapon from the food port and putit in his boxershorts. (7 RT 1441; People’s Exhibit F-2.) Officer Mascarenasturned off the cameraandtold appellant to give him the weapon. (7 RT 1442.) Appellant threw the weapon into a nearby trashcan, and Officer Mascarenas retrieved the trashcan andplacedit in a nearby office. (/bid.) A short timelater, Officer Mascarenas showed Officer Pearson the weapon. (7 RT 1443.) The weapon was approximately six inches long, had a sharpened metal point, and a handle made from tightly rolled paper, string, and an elastic glove. (7 RT 1426, 1431.) Officer Pearson was unaware that the weapon wason the food port while he wastalking to appellant. (7 RT 1424; People’s Exhibit F-2.) (2) Forfeiture In addition to having forfeited his sufficiency of evidence argument for failing to object, movingto strike, or moving to exclude the evidence at trial, appellant forfeited his claim regarding his March 29, 2000, weapons possession for an additional, but similar, reason. Appellant does not contend there wasinsufficient evidence he possessed a weapon pursuantto section 4502, subdivision (a) on March 29, 2000. Instead, appellant argues that the evidence wasinsufficient because “no reasonable trier of fact could have concluded that appellant made an express or implied threatofviolence on March 29, 2000.” (AOB 164,italics added.) However, whether unadjudicated acts involve force or violence or the express or implied threat 107 to use force or violenceis a legal question for the court, not a factual issue for the jury. (People v. Thomas (2012) 53 Cal.4th 771, 833-834 [“[T]he question of whether [unadjudicated] acts occurred is a factual issue for the jury,but ‘the characterization of those acts as involving an express or implied use of force or violence, or the threat thereof, would be a legal matter properly decided by the court’ ”]; People v. Butler, supra, 46 Cal.4th at p. 872; Nakahara, supra, 30 Cal.4th at p. 720.) Therefore, whether appellant’s March 29, 2000, weaponspossession involved an express of implied threat of violence was a matter for the court in relation to the admission ofthe evidence. It was notforthe jury to consider in determining whether the evidence supported a finding that appellant knowingly possessed a weapon beyond a reasonable doubt. _ Here, the court noted that possession of a sharpened instrument while in custody amounted to an implied threat of force and was admissible under section 190.3, factor (b). (5 RT 1053.) Appellant did not object when the court admitted evidence of appellant’s March 29, 2000, weapons possession. Asa result, in addition to forfeiting the claim that the evidence | wasinsufficient, he has forfeited any claim regarding the admissibility of his March 29, 2000, weapons possession. (3) No Abuse of Discretion On the merits, the court did not abuseits discretion when it determined that appellant’s March 29, 2000, weaponspossession involved an implied threat of force or violence sufficient for admission pursuant to section 190.3, factor (b). Contrary to appellant’s contention, this Court has held that “mere possession of a potentially dangerous weapon in custody ‘ “anvolves an implied threat of violence even where there is no evidence defendant usedor displayed it in a provocative or threatening manner.” [Citation.]’ [Citation.]” (People v. Martinez (2003) 31 Cal.4th 673, 694, italics added; People v. Moore, supra, 51 Cal.4th at p. 1137; People v. 108 Smithey (1999) 20 Cal.4th 936, 1002-1003; People v. Ramirez (1990) 50 Cal.3d 1158, 1186-1187.) In this case, appellant had actual possession of the weapon whenheplaced it on the food port and whenheretrieved the weapon from the food port and concealedit in his boxer shorts. (7 RT 1437-1438, 1441; People’s Exhibit F-2.) Because appellant’s “mere possession”of the weapon wassufficient to find that his actions involved an implied threat of violence, the court did not abuseits discretion in admitting evidence of appellant’s March 29, 2000, weaponspossession. (4) Sufficient Evidence of Weapons Possession Also on the merits, sufficient evidence supports a finding that appellant knowingly possessed a weapon while in custody on March 29, 2000. To determine whether appellant, a prisoner, knowingly possessed a weapon on March 29, 2000, the court instructed the jury with CALJIC Nos. 7.38 and 1.24. (10 CT 1739-1740.) The jury couldfind that appellant committed a violation of section 4502, subdivision (a), if it determined appellant (1) was a person confinedin a penalinstitution,” (2) possessed a weapon knownasa sharp instrument, and (3) knowingly exercised control over the weaponbyactual or constructive possession. ([bid.) Ample evidence supports a finding that appellant possessed a weapon knownasa sharp instrument, andthat he knowingly exercised control over the weapon byactual possession. As described above, the item Officer Mascarenassaw appellant place on the food port and concealin his boxer shorts was approximately six inches long, had a sharpened metalpoint, and a handle madefrom tightly rolled paper, string, and anelastic glove. (7 RT 1426, 1431.) Officer Mascarenas video recorded appellantafter appellant *? Appellant does not challenge the sufficiency of evidence on element one of CALJIC No.7.38, that appellant was a person confined in a penalinstitution. (10 CT 2739.) 109 placed an object on the food port. (7 RT 1437-1438.) The video provided a close-up view of the weapon and showedappellant retrieving the weapon from the food port and concealingit in his boxer shorts. (People’s Exhibit F-2.) The weapon, which wasretrieved by Officer Pearson from a trashcan, was admitted as evidenceat trial (People’s Exhibit E-1). (7 RT 1425-1428, 1430-1431, 1443.) Officer Mascarenasidentified the weapon as the same weapon appellant placed on the food port, concealed in his boxer shorts, and threw in the trashcan. (7 RT 1443-1444.) A reasonable jury, with the benefit of the testimony, the video recording, and the actual weapon, could reasonably concludethat appellant knowingly possessed a weapon. Onthe entire record, sufficient evidence supports a finding that appellant committed the March 29, 2000, weaponspossession beyonda reasonable doubt. f. Sufficient Evidence Supports a Finding that Appellant Possessed a Weapon While in Custody on April 15, 2000 Appellant contends there was insufficient evidence for the jury to determine that on April 15, 2000, he knowingly possessed weaponsthat officers found in his cell. (AOB 165-168.) Appellant argues that no witness saw him make the weaponsandno evidenceestablished that he had sole access to the cell. (AOB 166-168.) Respondent disagrees. (1) The Evidence and the Court’s Instructions On April 15, 2000, Officer Henderson saw appellant, the sole occupant of Cell 25, make unusual movementsinside his cell in the Security Housing Unit. (6 RT 1383-1384.) When Officer Hendersonfirst looked through appellant’s cell door, appellant was standing on a bunk and partially covering the overheadlightfixture with a blanket. (6 RT 1385.) Appellant then wentto the sink area and then back onto the bunk. (/bid.) 110 Appellant repeated this sequence twoor three times. Each time appellant was on the bunk he reached toward the overheadlight fixture. (/bid.) Officer Henderson notified Officer Butts. (6 RT 1386.) Officer Butts approached appellant’s cell and asked appellant to remove the blanket from the overhead light. (7 RT 1393.) Appellant removed the blanket from the light, and officers removed appellant from his cell. ([bid.) A search of appellant’s cell revealed several six-inch long groovescut into the overheadlightfixture and plastic shavings on the grounddirectly below the light. (7 RT 1394-1395.) Officer Butts also located scratch marks,likely made from sharpening objects, on the left-hand side bunk in the cell. (7 RT 1394.) Officer Butts further searched appellant’s cell. As Officer Butts prepared to search under appellant’s mattress, which was on the right-handside ofthe cell, Officer Butts pulled back the blanket on top of appellant’s mattress. (7 RT 1401.) Underneath the blanket, and thrown across the mattress, were three weapons. (7 RT 1401-1402, 1409.) The weaponswereofvarying lengths, each made of metal and sharpened either to a point or on oneside. (7 RT 1402-1404.) To determine whether appellant, a prisoner, knowingly possessed a weapon on April 15, 2000, the court instructed the jury with CALJIC Nos. 7.38 and 1.24. (10 CT 1739-1740.) The jury could find that appellant committed a violation of section 4502, subdivision (a), if it determined appellant (1) was a person confinedin a penalinstitution, (2) possessed a weapon knownasa sharp instrument, and (3) knowingly exercised control over the weaponbyactual or constructive possession. (Ibid.) (2) Sufficient Evidence of Weapons Possession Ample evidence supports a finding appellant knowingly possessed a weapon,that he wasthe sole occupantof cell 25 and, other than officers, 11] hadsole access to cell 25." Officers Henderson and Buttstestified that appellant was the sole occupant of cell 25. (6 RT 1384; 7 RT 1392.) Appellant’s cell, cell 25, was in the Security Housing Unit. (6 RT 1383-_ 1384.) Officer Tovartestified that inmates housed in the Security Housing Unit are not allowed to leave their cells unhandcuffed and unaccompanied by an officer. (6 RT 1293-1294.) Therefore, even though appellant had been temporarily removedfrom his cell at some time prior to April 15, 2000 (7 RT 1411-1412), appellant was the only inmate that had access to cell 25. From this evidence, a reasonable inference could be made that appellant had sole access to cell 25, and therefore, the weapons foundin his cell could not have been placedin the cell, as appellant suggests, at some point while appellant was outside ofhis cell. Ample evidence also supports a finding that appellant knowingly exercised control over the three weaponsfoundin his cell. Officer Butts testified that he discovered the three weapons under appellant’s blanket on top of appellant’s mattress. (7 RT 1401.) Specifically, Officer Butts testified that as he “was getting ready to search under [appellant’s] mattress”he first “pulled the blanket back” and discovered the three weapons. (7 RT 1401.) The weapons were thrownacross the mattress underthe blanket. (7 RT 1409.) Contrary to appellant’s characterization of Officer Butts’ testimony, the weapons were not under appellant’s mattress. (AOB 166.) Also contrary to appellant’s characterization of Officer Butts’ testimony, the weapons were not “““ right side ofthe bunk.” (AOB 166, italics added.) Rather, because there underneath’ or ‘in’ a blanket on the are generally two bunksin each cell, and Officer Butts had previously ** Appellant does not challenge the sufficiency of evidence on element one of CALJIC No. 7.38, that appellant was a person confined in a penal institution. (10 CT 2739.) 112 testified that he had noticed scratch markson the bunk located onthe left- handside of the cell (7 RT 1394), the prosecutor asked Officer Butts if he searched “the right side bunkor the left side bunk.” (7 RT 1402.) Officer Butts indicated that he searched the bunk on the “right-hand side”of the cell. (7 RT 1401-1402.) Appellant’s bunk was on the right-handside of the cell. (/bid.) A clear reading of the testimonyrevealsthat the three weaponswere located on appellant’s bunk, were on top of appellant’s mattress, and were covered by appellant’s blanket. | Finally, the jury could reasonably infer from appellant’s actions by the light fixture, the groovescut into the lightfixture, the plastic shavings on the ground belowthelight fixture, and the scratch marks on the bunk, that appellant was making the weapons whenhewasinterrupted by Officer Butts. (6 RT 1385; 7 RT 1394-1395.) From the evidence as a whole, the jurors could reasonably infer that appellant exercised control over the three weaponsinsidehis cell and knew the weapons were underhis blanket on his mattress. Appellant, the sole occupant ofthe cell, and the only person whoslept on the mattress where the weapons were found, would have no doubt noticed the three weapons underneath his blanket. It is not an unreasonable inference that appellant would have either slept on them or felt them when heeitherlay on his mattress or slept under the blanket on his mattress. On the entire record, sufficient evidence supports a finding that appellant committed the April 15, 2000, weapons possession beyond a reasonable doubt. g. Sufficient Evidence Supports a Finding That Appellant Committed a Battery on April 18, 2000, and That His Actions Were Not Done in Lawful Self-Defense Appellant contends there was insufficient evidence he committed a battery on April 18, 2000, because the prosecution failed to prove beyond a 113 reasonable doubtthat his actions were not donein lawful self-defense.” (AOB 168-174.) Respondent disagrees. (1) The Evidence and the Court’s Instructions As described more thoroughly above in Argument V, subsection B(3)(b), and adopted fully herein, on April 18, 2000, appellant refused to voluntarily moveto a different cell. (7 RT 1459-1462.) Officer Gatto obtained a pepper spray canister and deployeda three to five second burst through the food port. (7 RT 1465-1466; People’s Exhibit H-2.) While Officer Gatto was spraying the pepperspray, appellant reached through the food port and attempted to grab the canister. (7 RT 1465-1466, 1470; People’s Exhibit H-2.) Officer Gatto was able to avoid appellant’s reach. (bid.) Immediately thereafter, when Officer Gatto positioned the pepper spray canister in front of the food port again, appellant reached through the food port and grabbed the canister. (7 RT 1469; People’s Exhibit H-2.) After a brief struggle, appellant pulled the canister out of Officer Gatto’s handsandinto the cell. (/bid.) Appellant contacted Officer Gatto’s hand whenhegrabbedthe canister. (7 RT 1479-1481; People’s Exhibit H-2.) > Appellant also argues that there was insufficient evidence he possessed a sharpened instrument on April 18, 2000. (AOB 168-170.) The prosecutor did not ask the jury to find, and the evidence doesnot support, that appellant possessed a weapon on April 18, 2000. Even though Officer Gattotestified that the broken glass from the cell door window carried a sharp edge and could be used to construct a weapon (7 RT 1482), he also testified that the glass projected outward onto the floor when appellant struck the glass with the pepper spray canister (7 RT 1471). During his penalty argumentto the jury, the prosecutorrecalled that the glass window shattered (8 RT 1680), but did not argue that appellant took possession of the broken pieces of glass. Based on the prosecutor’s argumentto the jury and the evidence, respondent does not arguethat the evidence showed appellant possessed a sharpened instrumentpursuant to section 4502, subdivision (a) on April 18, 2000. 114 While Officer Gatto was retrieving an additional pepper spray canister, appellant struck the cell window repeatedly with the pepper spray canister he had insidehiscell, and shattered glass projected outward onto the floor. (7 RT 1471.) Officers placed a shield in front of appellant’s cell door, opened the food port, and deployed pepperspray into appellant’s cell. (7 RT 1471-1472; People’s Exhibit H-2.) Appellant blocked the food port with a mattress. (7 RT 1472; People’s Exhibit H-2.) Whenofficers pulled part of the mattress through the food port and deployed more pepperspray, appellant again reached through the food port and attempted to grab the second pepperspray canister. (7 RT 1472; People’s Exhibit H-2.) Officer Gatto then deployed the pepper spray through a small opening ontheside of the cell door, and appellant requested to be removed from hiscell. (7 RT» 1473-1474.) To determineif appellant committed a battery on a non-confined person (§ 4501.5), the court instructed the jury with CALJIC No.7.37, which included a paragraph regarding lawful self-defense. (10 CT 2735.) Accordingly, the prosecution was required to prove: (1) appellant used force or violence upon another; (2) appellant’s use of force or violence was willful; (3) appellant was confined in state prison when he usedforce or violence upon another; and (4) appellant used force or violence upon a person not confined within the prison. (/bid.) The court also defined for the jury what amountedto “force or violence.” (10 CT 2736.) Finally, out of an abundanceofcaution (7 RT 1610-1612; 8 RT 1627-1631), the court instructed the jury with CALJIC No. 9.26 (Arrest or Detention-Use of Reasonable Force-Duty to Submit) that explained an officer’s lawful performanceof their duties and an inmate’s duty to refrain from using force, and CALJIC No. 5.51 (Self-Defense-Actual Danger Not Necessary) that explained a defendant’s right to use self-defense. (10 CT 2737-273 8.) 115 (2) Sufficient Evidence of a Battery Ample evidence supports a finding that appellant committed a battery on April 18, 2000. A reasonable jury could find beyond a reasonable doubt appellant used force or violence upon Officer Gatto and that his force was willful. Appellant reached through the food port, grabbed the pepper spray canister, and pulled it out of Officer Gatto’s hands and into the cell. (7 RT 1469, 1479-1481; People’s Exhibit H-2.) Appellant also contacted Officer Gatto’s hand when he grabbed the pepperspray canister. (Ibid.)** (3) Act Not Donein Lawful Self-Defense Despite the court’s instructions, appellant did not argue attrial that the officers’ actions were unlawful or excessive,or that he actedinself- defense. On the contrary, appellant andhis trial counsel admitted that appellant intentionally forced the cell extractions. (8 RT 1692-1693; 9 CT 2422.) Nevertheless, the evidence presented to the jury did not support a finding that appellant acted in lawful self-defense. Appellant’s actions of grabbing the canister, contacting Officer Gatto’s hand, and pulling the canister out of Officer Gatto’s hands were not donein lawful self-defense in response to unreasonable or excessive force. The prosecution proved beyond a reasonable doubt that Officer Gatto did not use unreasonable or excessive force. The uncontroverted evidence showedthat it was a violation of institutional rules for inmates to refuse to comply with an officer’s order for an inmate to move from onecell to another. (7 RT 1460-1461; 10 CT 2737 [CALJIC No. 9.26 explained: “A correctional officer may lawfully require a person to move from onecell to °° Appellant does not challenge the sufficiency of evidence on elements three and four of CALJIC No. 7.37, that appellant was confined and Officer Gatto was not confined in a state prison when appellant used force or violence on Officer Gatto. (10 CT 2735.) 116 anotherfor purposes of prison administration”].) Appellant violatedthis rule when he refused to movecells and told officers he would move the way he wanted to move. (7 RT 1462, 1465.) The evidence wasalso uncontroverted that the use of pepperspray to gain an inmate’s compliance wasnot unreasonable or excessiveforce. Officer Gatto testified that he was given authority to use the pepperspray. (7 RT 1465.) He furthertestified that he administered the pepper spray through an open food port on appellant’s cell door in approximately three to five second bursts. (/bid.) No evidence waspresentedattrial that the prison’s general use of pepperspray, or its specific deploymentofpepper spray on April 18, 2000, was unreasonable or excessive force in responseto appellant’s repeated refusal to comply with Officer Gatto’s request for appellant to move from onecell to another. In other words, “[t]he evidence ... did not raise any legal justification for [appellant’s] actions, and, therefore the prosecution wasnot required to introduce evidence negating any possible justification for the activities. [Citation.]” (People v. Moore, supra, 51 Cal.4th at p. 1136.) From the evidence on this record, a reasonable trier of fact could reasonably conclude that appellant committed a battery, and the officers used necessary, not excessive, force to discharge their duty to secure appellant and remove him from thecell. Onappeal, appellant now cites a plethora of case authority he contends showsthat “bursts ofpepper spray are limited to no more than three seconds duration and generally only last a half-second.” (AOB 172- 173, italics in original.) He argues that Officer Gatto’s use of pepper spray on April 18, 2000, was excessive because Officer Gatto “provided no explanation for his use of the spray in a mannerthat contradicted all policies and guidesfor its safe use....” (AOB 173.) Asa result, appellant contends the prosecution failed to prove that Officer Gatto’s use of the pepper spray was not excessive force. (/bid.) No evidence was presented 117 at trial that Officer Gatto’s use of pepperspray allegedly contradicted the policies and practices of other law enforcement personnel through the country. In fact, no evidence waspresented that Officer Gatto’s use of pepper spray violated or exceeded any policy. The evidence remainedthat Officer Gatto’s use of pepper spray was not excessive. Also on appeal, appellant claims that “[a]ppellant grabbed for the canister after Gatto had been spraying him with pepper sprayfor at least /3 seconds,” that he “used no force beyond that necessary to stop the chemical attack,” and only “disarmed [Officer Gatto] so [Officer] Gatto could not continue to spray him.” (AOB 174,italics in original.) Appellant’s claim that he wasjustified in grabbing the canister from Officer Gatto is based on appellant’s erroneous view of the evidence. Appellant attempted to grab the canister during the first deployment of pepper spray. (7 RT 1465, 1470; People’s Exhibit H-2.) When appellant reached through the food port and attempted to grab the canister, Officer Gatto pulled the canister away from the food port. (People’s Exhibit H-2.) Officer Gatto’s first deployment of pepper spray lasted four to five seconds before appellant reached through the food port toward the canister, and Officer Gatto stopped spraying the pepper spray throughthe food port. (/bid.) Officer Gatto immediately attempted to deploy a second burst of pepper spray through the food port. However, before Officer Gatto could begin, appellant reached throughthe food port, grabbed the canister, and pulled the canister into his cell. (7 RT 1469; People’s Exhibit H-2.) When appellant grabbed the canister, he contacted Officer Gatto’s hand and pulled the canister out of Officer Gatto’s hands. (7 RT 1481.) It was then that appellant committed a battery. Contrary to appellant’s view of the evidence, appellant did not 118 commit the battery in lawful self-defense in order to stop a “13-second” “chemical attack.””’ The prosecution also proved beyond a reasonable doubtthat officers did not engage in behavior appellant believed put him in danger of suffering excessive force. Appellant forced thecell extraction. He refused to movecells and told officers he would move the wayhe wanted to move cells. (7 RT 1462.) Appellant was aware of the procedures officers used to gain an inmate’s compliance. Appellant had forced a previouscell extraction at Corcoran State Prison on November14, 1999. (6 RT 1336, 1350.) An officer deployed pepper spray duringthat cell extraction. (6 RT 1352-1353.) Appellant’s refusal to move cells voluntarily and his knowledgethat officers would deploy pepper spray during cell extraction prove beyond a reasonable doubtthat he did not believe the officers’ actions put him in dangerof suffering excessive force. Underall the circumstances, where it is clear that there is no evidence that Officer Gatto used excessive force prior to appellant committing a battery, the prosecution proved beyond a reasonable doubtthat appellant’s act of grabbing the pepperspray canister from Officer Gatto and contacting Officer Gatto’s hand wasnot done in lawful self-defense. As a result, *7 Notably, People’s Exhibit H-2 does show Officer Gatto deploying approximately a 13-second. burst ofpepper spray into appellant’s cell. (People’s Exhibit H-2.) However, this 13-second deployment ofpepper spray occurred after appellant had already committed the battery and pulled the first canister into his cell. (/bid.) The 13-second deployment ofpepper spray also occurred after appellant shattered his cell door window with the pepperspray canister and during the time appellant was attempting to cover the food port with his mattress. (People’s Exhibit H-2.) Accordingly, because the 13-second deployment ofpepper spray occurred after appellant had already committed the battery, appellant cannot base his claim of lawful self-defense on the 13-second deploymentofpepperspray. 119 appellant’s claim there was insufficient evidence to prove he committed a battery on April 18, 2000, is without merit. D. CALJIC No. 8.87 Correctly Instructed the Jury Regarding the Use of Unadjudicated Offenses as Factors in Aggravation Appellant contends CALJIC No.8.87 (other criminal activity) erroneously removed from the jury’s determination whether the unadjudicated offenses involved force or violence or the express or implied threat to use force or violence. (AOB 174-178.) Appellant argues that the instruction created an impermissible mandatory presumption (AOB 179- 180), and the court failed to define the “force or violence” elements of section 190.3, factor (b) (AOB 180-185). CALJIC No. 8.87, the standard instruction for considering other criminal activity as aggravating evidence undersection 190.3, factor (b), states: | | Evidence has been introduced for the purpose of showing that the defendant has committed criminal[act[s]] for which he has not been previously convicted which involved [the express or implied use of force or violence] [or] [the threat of force or violence]. Before a juror may consider any criminal [activity] as an aggravating circumstancein this case, a juror mustfirst be satisfied beyond a reasonable doubtthat the defendantdid in fact commit the criminal [activity]. A juror may not consider any evidenceofany other criminal[activity] as an aggravating circumstance. It is not necessary forall jurors to agree. If any juror is convinced beyond a reasonable doubt that the criminal activity occurred, that juror may considerthat activity as a fact in aggravation. Ifa juror is not so convinced, that juror must not consider that evidence for any purpose. The alleged criminal activity involvingforce or violence or the threat of force or violence for which the defendant has not been convicted but which the People offer as a circumstance in aggravation involvesalleged violations of Penal Code sections 120 240, 4501.5, and 4502. Ina momentI will define for you the elements of these uncharged crimes. (10 CT 2730, brackets in original.) This Court has “consistently ruled that whether criminal acts pose a threat of violence is a legal question for the court, and that CALJIC No. -8.87 does not create an unconstitutional mandatory presumption. [Citations.]” (People v. Butler, supra, 46 Cal.4th at p. 872; People v. Tihomas, supra, 53 Cal.4th at pp. 833-834 [‘‘Wehave previously held that the question of whether the acts occurred is a factual issue for the jury, but ‘the characterization of those acts as involving an express or implied use of force or violence, or the threat thereof, would be a legal matter properly decided by the court’ ”’] italics in original; People v. Streeter, supra, 54 Cal.4th at p. 266; People v. D’Arcy (2010) 48 Cal.4th 257, 302-303; People v. Lewis, supra, 43 Cal.4th at p. 530; People v. Gray (2005) 37 Cal.4th 168, 235; People v. Monterroso (2004) 34 Cal.4th 743, 793 (Monterroso); Nakahara, supra, 30 Cal.4th at p. 720 [“CALJIC No.8.87 is not invalid for failing to submit to the jury the issue whether the defendant’s acts involved the use, attempted use, or threat of force or violence”].) Appellant recognizes this Court’s recent rulings, but arguesthat in People v. Dunkle (2005) 36 Cal.4th 861 (Dunkle),”® “this Court clearly indicated that the question of whether a particular criminal act involved sufficient force or violence to be weighed as an aggravating circumstance underfactor (b) was for thejury to decide.” (AOB 176,italics in original.) Appellant is mistaken. In Dunkle, the defendant questioned whether a residential burglary could be used as aggravating evidence. (Dunkle, supra, at p. 922.) It was the defendant’s contention that “burglary for theft *8 Dunkle was overruled in part on other groundsas stated in People v. Doolin (2009) 45 Cal.4th 390, 421. 121 categorically is an offense not involving force or violence, and therefore [could] never be the subject of a section 190.3, factor (b) instruction...” (Ibid.) Unlike here, the Dunkle court was not directly concerned with the previous, but recent, holdings in Nakahara and Monterrosothat held that it wasfor the court, not the jury, to determine if an unadjudicated offense involved the use of force or violence or the threat thereof. “It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court. [Citations.]” (People v. Harris (1989) 47 Cal.3d 1047, 1071.) In addition, as a further indication that Dunkle does not stand for the proposition that the jury rather than the court must decideifan unadjudicated offense involves force or violence, Dunkle did not question or even mention the relevant holdings in Nakahara and Monterroso. Both Nakahara and Monterroso were decided prior to Dunkle and each clearly held that the question of whether an unadjudicated offense involves force or violence or the threat thereofis a legal matter properly decided by the court, not the jury. (Monterroso, supra, 34 Cal.4th at p. 793; Nakahara, supra, 30 Cal.4th at p. 720.) Recognizing Dunkle for the issue actually decided, appellant offers no persuasive reason for this Court to reconsiderits consistent holdings. Becausethe court, not the jury, decides whether unadjudicated offenses involve the use of force or violence or the threat thereof, the court and CALJIC No.8.87 did not fail to define force or violence for the jury. In any event, “force or violence”in the context of section 190.3, factor (b) GOCEis self-explanatory and possesses a “““common-sensecore ofmeaning... 99999that criminal juries should be capable of understanding.”’” (Dunkle, supra, 36 Cal.4th at p. 923, citing Tuilaepa v. California (1994) 512 U.S. 967, 975.) Therefore, CALJIC No. 8.87 was not erroneousandcorrectly 122 instructed the jury regarding the use of unadjudicated offenses as factors in aggravation. E. Appellant’s Constitutional Challenges to the Use of Unadjudicated Offenses as Aggravating Evidence Are Meritless Appellant raises a numberof federal constitutional objections to the use of unadjudicated offenses at the penalty phase ofhis trial. (AOB 185- 190.) He argues that (1) the admission of unadjudicated offenses, in general,is unconstitutional (AOB 185-186); (2) the use of the guilt-phase jury to consider the unadjudicated offenses as aggravating factors in the penalty phaseis unconstitutional (AOB 186-188);(3) the failure to require the jury to make unanimousfindings on each of the unadjudicated offenses is unconstitutional (AOB 189); and(4) consideration of unadjudicated offenses in capital cases causes disparate treatment between capital and noncapital defendants (AOB 189-190). Appellant recognizes this Court has rejected these arguments, but asks this Court to reconsiderits previous holdings. (AOB 185-190). This Court has repeatedly held that “[t]he use of unadjudicated criminalactivity at the penalty phase and the absence of a requirementthat the jury agree unanimously that it has been proved do not render a death sentence unreliable.” (People v. Thomas, supra, 53 Cal.4th at p. 836, citing People v. Anderson (2001) 25 Cal.4th 543, 584; People v. Valdez (2012) 55 Cal.4th 82, 179; People v. Foster (2010) 50 Cal.4th 1301, 1364-1365; People v. D’Arcy, supra, 48 Cal.4th at p. 308; People v. Ward (2005) 36 Cal.4th 186, 221-222.) Apprendiandits progeny (Cunninghamv. California (2007) 549 U.S. 270; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584), do not compela different result. (People v. D’Arcy, supra, at p. 308; People v. Ward, supra, at pp. 221-222.) 123 This Court has also repeatedly held that the use of the same jury for the guilt and penalty phases does not violate the impartial-jury requirement of the Sixth Amendment. (People v. Thomas, supra, 53 Cal.4th at p. 836; People v. Dement (2011) 53 Cal.4th 1, 56; People v. Rogers (2006) 39 Cal.4th 826, 894.) The circumstancesof this case do not compel a different result. As shown above in ArgumentV, subsections B and C, and adopted herein, the court did not abuseits discretion in admitting the unadjudicated offenses, and there was sufficient evidence to support the jury’s finding of each unadjudicated offense beyond a reasonable doubt. In addition, as shownabove in Argument V, subsection D, and adoptedherein,the jury was not requiredto find that the unadjudicated crimes involved force or violence. Also, the number of unadjudicated offenses the prosecution presented during the penalty phase did not “inflate[ ] the strength of the aggravating factors” or “unfairly skew[ ] the penalty phase in favor of death.” (AOB 188.) There was sufficient evidence to support each unadjudicated offense beyond a reasonable doubt, and the jurors were instructed that they could not consider the unadjudicated offense unless the juror first found beyond a reasonable doubt that appellant committed the act. (10 CT 2730; CALJIC No.8.87.) Finally, this Court has repeatedly held that use of unadjudicated offenses in capital proceedings, while forbidden in noncapital cases, does not violate equal protection or due process principles. (People v. Foster, supra, 50 Cal.4th at p. 1365; People v. D’Arcy, supra, 48 Cal.4th at p. 301; People v. Watson (2008) 43 Cal.4th 652, 701.) Appellant offers no persuasive reason for this Court to reconsider these holdings. 124 F. Reversal of Appellant’s Death Sentence Is Not Warranted Appellant contends this Courtshould reverse his death sentence. (AOB 190-195.) Appellant argues that because evidence of two unadjudicated offenses was erroneously admitted under factor(b), seven unadjudicated offenses were not supported by substantial evidence, the instructions regarding the use of unadjudicated offenses were incomplete, and these incidents were not admissible under any other aggravating factor (see AOB 190-192), “the presentation of the factor (b) incidents skewedthe jurors’ balancing of aggravating and mitigating factors in favor of death....” (AOB 192.) He further argues that anyerror in the admission of the unadjudicated offenses was not harmless. (AOB 193-195.) Respondent disagrees. Asalready shown,appellant forfeited any claim the court abusedits discretion in admitting evidence of the March 8, 1997, and April 18, 2000, unadjudicated offenses undersection 190.3, factor (b). On the merits, the court did not abuseits discretion in finding the two unadjudicated offenses involved the use or attempted use offorce or violence or the express or implied threat of force or violence sufficient for admission undersection 190.3, factor (b). Appellant also forfeited any claim there was insufficient evidence he committed seven of the unadjudicated offenses beyond a reasonable doubt. Onthe merits, sufficient evidence supports a finding appellant committed the seven unadjudicated offenses beyond a reasonable doubt. Therefore, because the court properly admitted the unadjudicated offenses andthere is sufficient evidence appellant committed the unadjudicated offenses, the unadjudicated-offense evidence did not impermissibly skew the jury’s penalty determination toward death and the evidence wasnotconstitutionally irrelevant to the jury’s penalty determination. 125 Assuming for argument purposesthat appellant did notforfeit his claims of error regarding the admission and sufficiency of evidence of the unadjudicated offenses presented pursuant to section 190.3, factor (b), and assuming some of the unadjudicated offenses were either inadmissible or not supported by sufficient evidence, any error was harmless beyond a reasonable doubt. “‘State law error occurring during the penalty phase will be considered prejudicial when there is a reasonable possibility such an error affected a verdict. [Citations.] Our state reasonable possibility standard is the same, in substance and effect, as the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 ]. [Citations.]’ [Citations.]” (People v. Nelson (2011) 51 Cal.4th 198, 218-219, fn. 15, italics in original.) The prosecution presented three other unadjudicated offenses pursuant to section 190.3, factor (b) during the penalty phase. These three unadjudicated offenses are similar to the unadjudicated offenses appellant challenges on appeal. Appellant, however, does not contend on appeal that these three unadjudicated offenses were inadmissible or that the evidence wasinsufficient to prove he committed the offenses. | On December18, 1997, officers entered appellant’s cell to remove appellant after appellant repeatedly refused to remove materials from his cell door windowsandrefused to voluntarily submit to being handcuffed. (6 RT 1268-1271, 1280, 1281; People’s Exhibit B-1.) When officers entered the cell, appellant slid under his bunk and kicked Officer Schmidt. (6 RT 1271-1276.) Appellant then hit Officer Schmidt. (6 RT 1276-1277.) On November13, 1999, following appellant’s assault on Inmate Lopez, officers searched appellant’s cell and located a weapon (a toothbrush sharpenedinto a spear and attached to a tightly bound newspaperhandle) inside appellant’s cell locker. (6 RT 1317-1322, 1326, 1328.) 126 The next day, on November14, 1999, appellant brokehis television. (6 RT 1336-1138.) Concerned that appellant could make weaponswith the plastic and glass, officers requested that appellant voluntarily submit to being handcuffed and removedfrom his cell. (6 RT 1346.) Whenofficers. opened the food port for appellant to place his hands outside ofthe cell, appellant threw multiple pieces of his television through the food port at officers. (6 RT 1346-1347.) Officers were interrupted by another incident, but when they returned appellant had covered his cell door windows and would not communicate with them. (6 RT 1348-1349.) After deploying . pepper spray into appellant’s cell, officers attempted to openthe cell door but the door was jammed and only opened approximately a foot. (6 RT 1352-1356.) Appellant had tied a cord to the doorframe and lodged items under the doorto prevent it from opening. (6 RT 1373-1375.) Officers placed a Plexiglas shield in front of the partially opened cell door. (6 RT 1357.) Appellant threw itemsat the shield, repeatedly kicked and hit the shield, attempted to grab a pepper spray canister from an officer, and forcibly tried to get out of the cell. (6 RT 1357-1358.) The prosecutor mentioned the unadjudicated offensesonly fleetingly in his argument to the jury. The prosecutor told the jury it could consider the incidents and briefly remindedthe jury of the facts of each incident. (8 RT 1670-1672, 1677-1680.) The principal focus of the prosecutor’s argument, however, was the heinous nature of the murders—the deliberate, unprovoked, gruesomekilling of two unsuspecting victims. (8 RT 1673- 1677, 1681-1686.) Asthe prosecutorstressed, “[T]he murder of James Mahoneyis particularly disturbing. It’s particularly distressing andit’s particularly deserving of the death penalty.” (8 RT 1682.) In addition, the prosecutor remindedthe jury of appellant’s unsympathetic response to the murders and his vow to commit many more murders. (8 RT 1685-1685.) 127 The evidence of the unadjudicated offenses paled in comparison to the “(much more direct and graphic evidence of [appellant’s] violent conduct {that] was before the jury.’ [Citation.]” (People v. Lewis, supra, 43 Cal.4th at p. 528.) The jury was permitted to consider the circumstances of the crimes (§ 190.3, factor (a)) in determining penalty. Appellant admittedly strangled his two victims for no other reason than to earn his Three Strikes sentence. (9 CT 2422-2423.) Proud of his accomplishments, appellant reenacted the murders and vowed to commit many more. (4 RT 705, 723, 727, 733; 5 RT 996-999, 1010, 1012, 1014-1015; 8 CT 2370; 9 CT 2423; People’s Exhibits 21-A, 21-B, 38, 38-A, 39, 39-B, 144, 144-A, 145-A, 145- B.) According to appellant, he plannedto kill Mendozabecausehe often bragged about being a gang leader. (8 CT 2334-2337.) As for Mahoney, appellant did not know him,but decided to kill him becauseit wasthe first time appellant had been on the exercise yard with another person in months. (9 CT 2406, 2408.) Killing Mendoza and Mahoneywasnot sufficient for appellant. After both victims were dead, appellant tied numerousligatures around their faces and necks. (8 CT 2339-2340, 2354, 2355; 9 CT 2412, 2416-2417, 2443.) Appellant wrote on the back of Mendoza’s T-shirt. (8 CT 2343-2344.) Appellant repeatedly kicked Mahoney’s headinto the concrete, kicked him in the crotch, and used Mahoney’s blood to draw a happy face on the concrete wall above Mahoney’s body. (9 CT 2419-2420, 2443-2444, 2454-2455.) “The cold- blooded, cruel, and senseless murders” of Mendoza.and Mahoney“sealed [appellant’s] fate.” (People v. McKinnon (2011) 52 Cal.4th 610, 684.) To rebut the overwhelming aggravating evidence, appellant offered little mitigating evidence. Appellant’s witnesses includedhissister, cousin, former group homedirector, and former teacher. Each explainedthat although appellant had a difficult and abusive upbringing,he had been a 128 nonviolent child and young adult. (7 RT 1531-1533, 1547, 1563, 1569, 1572.) Underthese circumstances, there is no reasonable possibility that appellant would have received a more favorable penalty verdict had the jury not heard or considered the allegedly inadmissible and unsupported by sufficient evidence unadjudicated offenses. The jury found beyond a reasonable doubt appellant committed two murders while lying in wait. The jury also heard appellant’s admissions, his callous attitude toward the murders, and his desire to murder many more people and harm officers. The jury heard evidenceofthree other unadjudicated offenses where appellant assaulted officers and possessed a weapon. It is extremely unlikely that the jurors had been ambivalent about the death penalty but were wonoverto that decision by relying on the unadjudicatedassaults, batteries, and weaponspossession in which no one wasseriously injured. “It would require capricious speculation for [this Court] to conclude’that any error in admitting ... testimony underfactor (b) ‘affected the penalty verdict.” (Belmontes, supra, 45 Cal.3d at p. 809, [ ] [erroneous admission of factor (b) evidence was harmless given that ‘[t]he properly admitted - aggravating evidence,’ 1.e., ‘the circumstancesofthe crime,’ was ‘overwhelming’ ]; see also People v. Silva (1988) 45 Cal.3d 604, 636 ] [finding harmless error because erroneously admitted factor (b) evidence was ‘ “trivial when compared to [defendant’s] crimes and the other proper evidence adducedat the penalty phase”’].)” (People v. Valdez, supra, 55 Cal.4th at p. 172.) As a result, any error in regardsto the challenged unadjudicated offenses was harmless beyond a reasonable doubt and this Court should uphold the judgmentof death. 129 VI. CALIFORNIA’S DEATH PENALTY SCHEMEIS CONSTITUTIONAL Appellant repeats rejected challenges to California’s death penalty schemein order to preserve them for review by the United States Supreme Court and/or federal habeas review. (AOB 196-211.) Appellant presents no compelling reason for this Court to reconsider any of its previous holdings. (See fn. 14.) A. California’s Death Penalty Schemeis Not Impermissibly Broad Appellant contendsthat his death sentence is invalid because it was improperly imposed pursuantto a statutory scheme (§ 190.2) that fails to narrowtheclass of offenders eligible for the death penalty in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (AOB 196-197.) This Court has “considered and consistently rejected” this claim. (People v. Jablonski (2006) 37 Cal.4th 774, 837, and cases cited therein.) “The special circumstancesset forth at section 190.2 are not impermissibly broad and adequately narrow the class of murders for which the death penalty may be imposed. [Citations.]” (People v. Elliot (2005) 37 Cal.4th 453, 487.) Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting this claim. B. Section 190.3, Factor (a) appropriately Allows the Jury to Consider Circumstancesof the Crime Appellant contendsthat factor (a) of section 190.3, which allows jurors to consider the circumstances of the crime in determining penalty, “has been applied in such a wanton and freakish manner”that it allows “arbitrary and capricious imposition of the death penalty”in violation of 130 the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (AOB 197-198.) This Court has repeatedly rejected this claim finding that “section 190.3, factor (a) is not impermissibly overbroadfacially or as applied.” (People v. Robinson (2005) 37 Cal.4th 592, 655, and cases cited therein.) Section 190.3, factor (a) correctly allows the jury to consider the “circumstances of the crime.” (People v. Thomas, supra, 51 Cal.4th atp. 506; People v. Nelson, supra, 51 Cal.4th at p. 225; People v. D’Arcy, supra, 48 Cal.4th at p. 308.) | Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting this claim. C. California’s Death Penalty Scheme and Corresponding Instructions Set Forth the Appropriate Burden of Proof Appellant contends California’s death penalty scheme and accompanying penalty-phaseinstructionsfail to set forth the appropriate burden of proof. (AOB 198-207.) Appellant argues that: (1) the jury was not instructed thatit had to find that the aggravating factors outweighed any mitigating factors beyond a reasonable doubt (AOB 198-200); (2) the jury wasnotinstructed that the prosecution had the burden of persuasion regarding any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, or, in the alternative, that neither party had the burden of proof (AOB 200- 201); (3) the jury wasnotinstructed that it had to unanimously find aggravating factors true beyond a reasonable doubt (AOB 201-203); (4) the instructions were impermissibly broad or vaguein directing jurors to determine whether the aggravating factors were “so substantial”in comparison to the mitigating factors (AOB 203);(5) the jury was not instructed that the central determination is whether death is the appropriate punishment (AOB 204); (6) the jury wasnotinstructed that it was required 131 to return a sentence oflife without the possibility of parole if the mitigating circumstances outweighedthe aggravating circumstance (AOB 204-205); (7) the jury was notinstructed that it did not have to unanimously find mitigating factors true beyond a reasonable doubt (AOB 205-206); and (8) the jury wasnot instructed regarding the presumption oflife (AOB 206- 207). 1. Aggravating Factors Outweigh Mitigating Factors This Court has found that “the greater weight of aggravating circumstancesrelative to mitigating circumstances ... are not subject to a burden-of-proof qualification. [Citations.]” (People v. Elliot, supra, 37 Cal.4th at pp. 487-488, and cases cited therein.) This Court has further found that “‘[nJothing in the United States Supreme Court’s recent decisions interpreting the Sixth Amendment’sjury trial guarantee(e.g., Cunningham vy. California (2007) 549 U.S. 270 []; Ring v. Arizona (2002) 536 U.S. 584 []; Apprendi v. New Jersey (2000) 530 U.S. 466[]) compels a different answerto th{is] question[ ].’ [Citation.]” (People v. Thomas, supra, 51 Cal.4th at p. 506; People v. Lee (2011) 51 Cal.4th 620, 651-652.) 2. Burden of Proof or No Burden of Proof This Court has found that “[t]he death penalty law is not unconstitutional for failing to impose a burden of proof—whether beyond a reasonable doubt or by a preponderance of the evidence—asto the existence of aggravating circumstances, the greater weight of aggravating circumstances over mitigating circumstances, or the appropriateness of a death sentence. [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 469; People v. Gonzales, supra, 54 Cal.4th at p. 1298; People v. Howard (2010) 51 Cal.4th 15, 39; People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Lomax (2010) 49 Cal.4th at 530, 594-595.) The death penalty law and instructions are also not defective “for failing to inform the jury 132 that there was no burdenofproof.” (People v. Gonzales, supra, at p. 1298; People v. Lomax, supra, at p. 595.) 3. Unanimity of Aggravating Factors This Court has found that section 190.3 is not unconstitutional “for failing to require unanimity as to the applicable aggravating factors. [Citation.]” (People v. Elliot, supra, 37 Cal.4th at pp. 487-488.) This Court has further held that “‘[nJothing in the United States Supreme Court’s recent decisions interpreting the Sixth Amendment’sjurytrial guarantee (e.g., Cunningham v. California (2007) 549 U.S. 270 []; Ring v. Arizona (2002) 536 U.S. 584 []; Apprendi v. New Jersey (2000) 530 U.S. 466[]) compels a different answerto th[is] question[ ].’ [Citation.]” (People v. Thomas, supra, 51 Cal.4th at p. 506; People v. Lee, supra, 51 Cal.4th at pp. 651-652.) 4. “So Substantial” Standard This Court has foundthat “[t]he instructions were not impermissibly broad or vague in directing jurors to determine whetherthe aggravating factors were ‘so substantial in comparison with the mitigating factors thatit warrants death instead oflife without parole.’ [Citation.]” (People v. Valdez, supra, 55 Cal.4th at p. 180, citing People v. Carter (2003) 30 Cal.4th 1166, 1226; People v. Gonzales, supra, 54 Cal.4th at pp. 1298- 1299; People v. Lomax, supra, 49 Cal.4th at p. 595.) 3. Central Determination Whether Deathis the Appropriate Penalty . This Court has found that “CALJIC No. 8.88 does not improperly fail to inform the jury that the central determination is whether death is the ‘appropriate punishment.’ The instruction properly explains to the jury that it mayreturn a death verdict if the aggravating evidence ‘warrants’ death. [Citations.]” (People v. McDowell (2012) 54 Cal.4th 395, 444; People v. 133 Gonzales, supra, 54 Cal.4th at p. 1299; People v. Mendoza (2007) 42 Cal.4th 686, 707.) 6. Mitigating Circumstances Outweigh Aggravating Circumstances This Court has foundthat the penalty instructions are not unconstitutional for failing to advise the jury that it is required to return a sentenceoflife without the possibility of parole if the mitigating circumstances outweigh those in aggravation. (People v. Jones (2012) 54 Cal.4th 1, 78-79; People v. McWhorter (2009) 47 Cal.4th 318, 379; People v. Carrington(2009) 47 Cal.4th 145, 199.) 7. Standard of Proof and Jury Unanimity of Mitigating Circumstances This Court has foundthat “[t}he trial court was not required to instruct the jury that ... the beyond-a-reasonable-doubt standard and requirementof jury unanimity do not apply to mitigating factors. [Citation.]” (People v. Streeter, supra, 54 Cal.4th at p. 268; People v. Mendoza (2011) 52 Cal.4th 1056, 1097.) 8. Presumption of Life This Court has found that “[t]he court was not required to instruct on a ‘presumption of life.’ [Citations]” (People v. Gonzales, supra, 54 Cal.4th at p. 1299; People v. Howard, supra, 51 Cal.4th at p. 39; People v. Lomax, supra, 49 Cal.4th at pp. 594-595.) Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting these claims. | D. The Jury Was Not Required to Make Written Findings Appellant contendsthe failure to require the jury to make written findings deprived him ofhis rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution andhis right to meaningful appellate review. (AOB 207-208.) 134 This Court has foundthat“[t]he death penalty law is not unconstitutional for failing to require that the jury base any death sentence on written findings. [Citation.]” (People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Thomas, supra, 51 Cal.4th at p. 506.) Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting this claim. E. The Mitigating and Aggravating Factors Jury Instructions Were Constitutional Appellant contends the penalty-phase jury instructions regarding mitigating and aggravating factors violated his constitutional rights. (AOB 208-209.) Appellant argues that: (1) the use of the adjectives “extreme” and “substantial” in the list of potential mitigating factors (CALJIC No. 8.85, factors (d) and (g)) impermissibly acted as barriers to his jury’s consideration of mitigating circumstances (AOB 208); (2) the court failed to delete inapplicable sentencing factors; and (3) the jury was notinstructed that certain statutory factors were relevant solely as to mitigation (AOB 209). 1. Restrictive Adjectives in the Description of Mitigating Factors This Court has foundthat “(t]he use of adjectives such as ‘extreme’ and ‘substantial’ does not prevent the jury from considering relevant mitigating evidence. [Citation.]” (People.v. Thomas, supra, 51 Cal.4th at pp. 506-507; People v. Valdez, supra, 55 Cal.4th at p. 180.) 2. Deletion of Inapplicable Sentencing Factors This Court has foundthat “[t]he trial court is not required to delete inapplicable sentencing factors from CALJIC No. 8.85. [Citation.]” (People v. McDowell, supra, 54 Cal.4th at p. 444; People v. Stitely (2005) — 35 Cal.4th 514, 574.) “[T]he full list of factors may be put before the jury 135 as a frameworkfor the penalty determination. [Citations.]” (Peoplev. Davis (2009) 46 Cal.4th 539, 624.) 3. Factors Relevant Only to Mitigation This Court has foundthat ““‘[t]he jury need not be instructed that section 190.3, factors (d), (e), (f), (g), (h), and (j) are relevant only as possible mitigators. [Citation.] Noris the trial court required to instruct that the absenceofa particular mitigating factor is not aggravating. [Citation.]’ ” (People v. Thomas, supra, 51 Cal.4th at pp. 506-507; People v. Valdez, supra, 55 Cal4th at p. 180.) Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting these claims. F. The United States Constitution Does Not Require Inter- case Proportionality Review of Death Sentences Appellant contends that California’s death penalty scheme violates the United States Constitution because it does not require “inter-case proportionality review” of sentences. (AOB 210.) This Court has repeatedly rejected the claim that the United States Constitution requires inter-case proportionality review of death sentences. (People v. Valdez, supra, 55 Cal.4th at p. 180; People v. Foster, supra, 50 Cal.4th at p. 1368; People v. Prieto (2003) 30 Cal.4th 226, 276.) Appellant presents no compelling reason for this Court to reconsider its prior decisionsrejecting this claim. G. California’s Death Penalty Law Does Not Deny Capital Defendants Equal Protection Under the Law Appellant contends that California’s death penalty schemeviolates the Equal Protection Clause becauseit denies procedural safeguards to capital defendants that are afforded to noncapital defendants. (AOB 210-211.) Appellant claimsthat unlike noncapital cases, the death penalty scheme is unconstitutional because there is no standard ofproofin the penalty phase, 136 no requirementofjuror unanimity on the aggravating factors, and no requirementthat the jury justify the death sentence with written findings. ([bid.) Asthis Court has stated, “The death penalty law does notviolate equal protection by denying capital defendants certain procedural safeguardsthat are afforded to noncapital defendants because the two categories of defendantsare not similarly situated. [Citations.]” (People v. Lee, supra, 51 Cal.4th at p. 653.) In other words, “The availability of certain proceduralprotections in noncapital sentencing—suchas a burden ofproof, written findings, jury unanimity and disparate sentence revyiew—when those same protections are unavailable in capital sentencing, does not signify that California’s death penalty statute violates Fourteenth Amendment equalprotection principles. [Citations.]” [Citation.] (People v. Thomas, supra, 51 Cal.4th at p. 507.) Appellant presents no compelling reason for this Court to reconsider its prior decisionsrejecting this claim. H. Application of the Death Penalty Does Not Violate International Norms Appellant contends that California’s use of the death penalty as a “regular” form of punishmentviolates international law and the Eighth and Fourteenth Amendments to the United States Constitution. (AOB 211.) This Court had foundthat“California’s use of capital punishmentas an assertedly ‘regular form of punishment’ for substantial numbers of crimes, rather than as an extraordinary punishmentfor extraordinary crimes,doesnot offend the Eighth and Fourteenth Amendments by violating international norms of human decency. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 53-54; People v. Thomas, supra, 51 Cal.4th at p. 507; People v. Lee, supra, 51 Cal.4th at p. 654;.) In fact, California does not use capital punishment“‘as regular punishment for substantial 137 numbers of crimes.’ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 43, italics in original.) Appellant presents no compelling reason for this Court to reconsider its prior decisions rejecting this claim. CONCLUSION Accordingly, respondent respectfully requests that the judgment be affirmed. Dated: March 21, 2013 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General - WARD A. CAMPBELL Supervising Deputy Attorney General STEPHANIE A. MITCHELL Deputy Attorney General ZL { YiCoonatls TIA M. CORONADO Deputy Attorney General _Attorneysfor Plaintiffand Respondent TMC:Ibj FR2000XS0002 11025912.doc 138 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFusesa 13 point Times New Roman font and contains 39,971 words. Dated: March 21, 2013 KAMALA D. HARRIS Attorney General of California LYCaioraods TIA M. CORONADO Deputy Attorney General Attorneys for Plaintiff and Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Delgado No.: S089609 I declare: | am employedin the Office of the Attorney General, which is the office of a member of the Califomia State Bar, at which member's direction this service is made. Iam 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordance withthat practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On March 22, 2013,I served the attached Respondent’s Brief by placing a true copy thereof enclosedin a sealed envelopein the internal mail collection system at the Office of the Attorney Generalat 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Michael Laurence Executive Director Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA 94107 Jolie Lipsig Senior Deputy State Public Defender 770 L Street, Suite 1000 Sacramento, CA 95814 (2 copies) Representing appellant Anthony Delgado California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Honorable Greg Stnckland Kings County District Attorney 1400 West Lacey Boulevard Hanford, CA 93230 Clerk of the Superior Court Kings County 1426 South Drive Hanford, CA 93230 I declare under penalty of perjury under the lawsofthe State of California the foregoingis true and correct and that this declaration was executed on March 22, 2013, at Sacramento, California. Declarant FR2000XS0002 31647117.doc