PEOPLE v. MIRACLE

Appellant’s Opening Brief

Cal.September 19, 2014

SUPREME COURT CUPY COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, (Santa Barbara County Superior Ct. No. 1200303) Plaintiff and Respondent, v. JOSHUA MARTIN MIRACLE, SUPREME COURT Defendant and Appellant. N e e N e e e e e e e e e e e e e e e e e e ” 19 2014 APPELLANT’S OPENING BRIEF SEP.19 2 i erk Automatic Appeal from the Judgment of the Superior Comifank A. McGuire Cl of the State of California for the County of Santa Barbara Deputy HONORABLEBRIANE.HILL, JUDGE MICHAEL J.HERSEK State Public Defender ANDREAG. ASARO,SBN 107039 Senior Deputy State Public Defender Asaro@ospd.ca.gov Office of the State Public Defender 1111 Broadway, Suite 1000 Oakland, California 94607 Telephone: (510) 267-3300 Fax: (510) 452-8712 Attorneys for Appellant DEATH PENALTY TABLE OF CONTENTS Page INTRODUCTION 2.0.0.0... c cece teen e ene n tenes ] STATEMENT OF APPEALABILITY ............ 00 e eee eee eens 2 STATEMENT OF THE CASE ........-. 0 0c cece eee nets 2 STATEMENT OF FACTS 20... .. cere eeeetn 5 I. The Circumstances Of theSilva Homicide (Count 1) ........... 5 A. Robert Galindo ...... 0... ccc eee eee eee eeeSee 6 B. Nicole PalicioS 2... 0... cectteens 13 C. Law Enforcement and Forensics Personnel............- 14 D. Statements By Appellant ..........--- see ee eee eee 15 I. The Lopez Assault (Count 2) .. 0.0... eee eee eee nes 15 Ill. Prior In-Custody Incidents ...... 0... eee cece eee eee ene 16 IV. Gang Expert Testimony ........ eee scene eens 17 V. Victim Impact Testimony ........ 0. eee eee teens 18 ARGUMENT.........-000 5:ede beet eeeen ene n nnn ened 19 L APPELLANT’S GUILTY PLEA IS INVALID UNDER PENAL CODE SECTION 1018 BECAUSE APPELLANT WAS PROCEEDINGIN PRO. PER. AND HAD ONLY THE CONSENT OF ADVISORY COUNSEL ...........-+5- 19 A. Introduction «6... 0... e eee ene eee eens 19 B. Procedural Background ......... 00 eee eee ee eee ees 20 — > TABLE OF CONTENTS Page C. Section 1018 Prohibits the Acceptance Of a Guilty Plea to Capital Murder From a Defendant WhoIs Representing Himself ..... 00... 0... c cece eee 36 D. Appellant’s Guilty Plea Was Invalid Because He WasRepresenting Himself When the Court Accepted His Plea .. 1...eecteee eee enes 42 E, The Acceptance Of Appellant’s Guilty Plea In Violation Of Section 1018 Compels Striking the Plea and the Admission of the Special Circumstances and Reversing the Death Sentence ....... 0... cece cece eee 46 F. Conclusion .. 0...eeen eee e nes 48 APPELLANT WAS EXCESSIVELY AND VISIBLY SHACKLEDIN VIOLATION OFHIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO PARTICIPATE IN HIS OWN DEFENSE AND TO A FAIR AND RELIABLE PENALTY DETERMINATION ......... 0.0.0 cece cee eens 49 A. Introduction 2.0.0... . ccc ccc cece te tenes 49 B. Appellant Was Visibly Restrained In the Courtroom In the Jurors’ Presence... 2.0... cece eee 50 C. Restraints Visible To the Jury Must Be Justified By a State Interest Particular To the Defendant’s Trial, Be Based On a Showing Of Manifest Need and Bethe Least Obtrusive Means, Imposed AsalLast Resort ....... 641 D. The Restraints Imposed On Appellant Were Unduly Restrictive, Painful and Excessive............ 00.00 eue 64 E, The Court’s Excessive Shackling Of Appellant Was Prejudicial 0... eee ccc ec cece teen eens 69 ii HI. TABLE OF CONTENTS Page F. Conclusion ....... 00sec cece eee e ete teen enn ene 75 CALIFORNIA’S DEATH PENALTY STATUTE AND CALJIC INSTRUCTIONS, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATE THE UNITED STATES CONSTITUTION ........ 76 A. Penal Code Section 190.2 Is Impermissibly Broad ....... 76 B. The Broad Application Of Penal Code Section 190.3(a) Violated Appellant’s Constitutional Rights ............. 77 C. California’s Death Penalty Statute and the CALJIC Instructions Given In This Case Failed To Set Forth the Appropriate Burden OfProof and the Requirement Of Unanimity 0.6...ceeee ees 79 l. Appellant’s Death Sentence Is Unconstitutional Because It Was Not Premised On Findings Made Beyond a Reasonable Doubt...............0055 79 2. Some Burden Of Proof Should Have Been Required, Or the Jurors Should Have Been Instructed That There Was No Burden Of Proof ... 81 3. Appellant’s Death Verdict Was Not Premised On Unanimous Jury Findings Regarding Aggravating Circumstances ..... 0.0. eee ce eens 82 D. California’s Death Penalty Statute and the CALJIC Instructions Given In This Case On Mitigating and Aggravating Circumstances Violated Appellant’s Constitutional Rights .... 0.6.6... e eee eee eee 84 1. The Instructions Given Failed To Inform the Jurors That the Central Sentencing Determination Is Whether Death Is the Appropriate Penalty ...... 84 iil T I TABLE OF CONTENTS Page The Use Of Adjectives In the List Of Potential Mitigating Circumstances Is Impermissibly ReStrictiVe . 6.eee eee e ene 84 The Instructions Caused the Penalty Determination To Turn On An Impermissibly Vague and Ambiguous Standard ......... 0.0.0.0 cece 85 The Jurors Should Not Have Been Instructed On Inapplicable Sentencing Factors ................ 85 The Jurors Should Have Been Instructed That Statutory Mitigating Circumstances Were Relevant Solely As Potential Mitigation ..............00. 86 The Instructions Given Failed To Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required To Return a Sentence Of Life Without Possibility Of Parole........... Leen eee teen eee eeens 87 The Jurors Should Have Been Instructed On the Presumption That Life Without Possibility Of Parole Was the Appropriate Sentence ........... 88 Failing To Require the Jurors To Make Written Findings Violated Appellant’s Right To Meaningful Appellate ReVIOW 2...eee ec eee nee eeeeeanas 89 The Prohibition Against Intercase Pronortionality Review Guarantees Arbitrary and Disproportionate Imposition Of the Death Penalty ..... 0.0.0... ccc cece 89 California’s Capital Sentencing Scheme Violates the Equal Protection Clause... 0... 0... cc ccc cece eee 90 iv TABLE OF CONTENTS Page H. California’s Imposition Of the Death Penalty As a Regular Form Of PunishmentFalls Short Of International Norms ....... 0. ceceeee 91 IV. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINE THE FUNDAMENTALFAIRNESSOF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT .............. 92 V. THE TRIAL COURT ERREDIN IMPOSING RESTITUTION FINES WITHOUT CONSIDERING APPELLANT’S INABILITY TO PAY MORE THAN THE STATUTORY MINIMUM ...... 94 A. Introduction and Procedural Background ...........+.. 94 B. The Restitution Fines Are Excessive and Should Be Modified Or Reconsidered In Light Of Appellant’s Inability To Pay a Fine Greater Thanthe Statutory Minimum ....... 00.0 cee eee te eee n nee 95 C. Conclusion .. 0... cece eet teens 98 CONCLUSION .......- 0.0: c eee ee eesoccu ececeteueeereene, 99 CERTIFICATE OF COUNSEL ...... 0 cece eee eee eet ene 100 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Apprendi v. New Jersey (2000) 530 U.S. 466 2...cceee eee ees 79, 80 Ballew v. Georgia (1978) 435 U.S. 2230cccete nen eee eens 82 Blakely v. Washington (2004) 542 U.S. 296 2...cece nee eee n ies 79, 80 Boykin v. Alabama (1969) 395 U.S. 238 2.eetnee es 40, 47 : | Carter v. Kentucky (1981) 450 U.S. 288 2.cecenee ten eens 80 Chambers v. Mississippi (1973) 410 U.S, 284 00ccccc eee nents 92 Chapman v. California (1967) 386 U.S. 18 2...cccee cet e nen eens 69, 75 Cunningham v. California (2007) 549 US. 270 26.neens 79, 80 Deck v. Missouri (2005) 544 US. 622 0.ceeete n eens passim Delo v. Lashley (1993) 507 U.S. 272. ooceetenn nent eeees 88 Donnelly v. DeChristoforo (1974) 416 U.S. 637occece eee e eee e eens 92 Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734 oo... cece ee ees 61, 63, 73 vi TABLE OF AUTHORITIES | Page(s) Caldwell v. Mississippi (1985) 472 U.S. 320 6...eeetenes 47, 93 Boyde v. California (1990) 494 U.S.370 oo.occeeeen eens 87 Elledge v. Dugger (11th Cir, 1987) 823 F.2d 1439 2... cccceeees 70 Estelle v. McGuire (1991) 502 U.S. 62...eee92 Estelle v. Williams (1976) 425 U.S. 501ens 88 Faretta v. California (1975) 422 U.S. 806 00.neenents passim Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 2. ceceeens 47 Furman v. Georgia (1972) 408 U.S. 238 0... ccceeeeters 76 Gardner v. Florida (1977) 430 U.S. 349 2.eeeee eee nes 62 Gregg v. Georgia (1976) 428 U.S. 153 ooeeeeens 89 Harmelin v. Michigan (1991) S01 U.S. 957 20.eteeet teen ns 83 Hicks v. Oklahoma (1980) 447 U.S. 343 0.ceenes 47, 81, 87 vil TABLE OF AUTHORITIES Page(s) Hitchcock v. Dugger (1987) 481 U.S. 393 2.cereeee n nes 93 Holbrook v. Flynn (1986) 475 U.S. 560 2...cecenn enes 69, 70 Illinois v. Allen (1970) 397 U.S.337 . oiecece nee ne eens 64, 65 Jones v. Barnes (1983) 463 U.S. 745occette ene n ens 45 Jones v. Meyer (9th Cir. 1990) 899 F.2d 883 2...cette eees 63 Kennedy v. Cardwell (6th Cir. 1973) 487 F.2d 101 2...ccees 64 Lemons v. Skidmore (7th Cir. 1993) 985 F.2d354 ........ eeecence eee eens 63 Locket v. Ohio (1978) 438 U.S. 586occceceene 84 Maynard v. Cartwright (1988) 486 U.S. 3562cceee een e eens 78, 85 McKoyv. North Carolina (1990) 494 U.S. 433 Locceeee enn 83 Mills v. Maryland (1988) 486 U.S. 3672cec eee teen eens 84 Mongev. California (1998) 524 US. 721 ceects 62, 83 vill TABLE OF AUTHORITIES Page(s) Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926 .. ccc ccc ceceeens 47 Myersv. Yist (9th Cir. 1990) 897 F.2d 417 occ cc ccc eeeees 83 New York v. Hill (2000) 528 U.S. 110 2.eens 45 North Carolina v. Alford (1970) 400 U.S. 25 ones 4] Parle v. Runnels (9th Cir. 2007) 505 F.3d 922 00... cece eee eeeeet 92 Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633 26... cece eee eee eens 70, 73 Ring v. Arizona (2002) 536 U.S. 584 2...ceeens 79, 82 Roper v. Simmons (2005) 543 U.S. S51otenents 91 Skipper v. South Carolina (1986) 476 U.S. 1ceeneneee 93 Sochor v. Florida (1992) 504 U.S. 527 26.ees 62, 63 Spain vy. Rushen (9th Cir. 1989) 883 F.2d 712 21... cece etnies 63 Stringer v. Black (1992) 503 U.S. 222 2...eens 87 ix TABLE OF AUTHORITIES Page(s) Taylorv. Illinois (1988) 484 U.S. 400 2.ceeteens 45, 83 Trop v. Dulles (1958) 356 U.S. 86 2.cetteen ees 91 Tuilaepa v. California (1994) 512 U.S. 967 26ceeeee ee 78 Wardius v. Oregon (1973) 412 U.S.470 20.ceceteen eens 88 Woodson v. North Carolina (1976) 428 U.S. 280 2...cccece eens 82, 84 Zant v. Stephens (1983) 462 U.S. 862 2.0eeeens 76 STATE CASES In re Barnes (1985) 176 Cal.App.3d 235 2...cece teen eens 97 In re Barnett (2000) 31 Cal.4th 466... 0...ceceene eee 45 In re Tahl (1969) 1 Cal.3d 122 2.ccceens 40, 47 People v. Alfaro (2007) 41 Cal.4th 1277 2...ceceeens 41,42 People v. Alveoli (2006) 38 Cal.4th 491.0... cece cee ee eeeJove, 84 People v. Anderson (2001) 25 Cal.4th 54300cete eee ees 79, 80 xX TABLE OF AUTHORITIES Page(s) People v. Arias (1996) 13 Cal.4th 92 0.0ceeeee een ees 82, 84, 89 People v. Ballentine (1952) 39 Cal.2d 193 2.eeeeet 37, 38 People v. Beaux (1991) 1 Cal.4th 281.0...eeeeees 85, 86 People v. Black (2014) 58 Cal.4th912eeecette 46 People v. Blair (2005) 36 Cal.4th 686 2.0...ccc ee eens 46, 78, 81 People v. Bloom (1989) 48 Cal.3d 1194 2...cee eee eee ees 43, 46 People v. Breverman (1998) 19 Cal.4th 142...eeeene ees 80 People v. Brown (1988) 46 Cal.3d 432 00... cccecnes 92 People v. Brown (2004) 33 Cal.4th 382... ceceeeeete 78 People v. Burnett (1980) 111 Cal.App.3d 661 2.0.0... cee cee eee eee ees 66, 72 People v. Chadd (1981) 28 Cal.3d 739 0...ee eee eens passim People v. Cook (2006) 39 Cal.4th 566 0.0...eeeees 86, 89, 91 Xl TABLE OF AUTHORITIES Page(s) People v. Cook (2007) 40 Cal.4th 1334.0...2cenna 45, 89, 91 People v. Davenport (1985) 41 Cal.3d 247 2.ccceects 86 People v. Duncan (1991) 53 Cal.3d 955 .occccee eee eas 87 People v. Duran | (1976) 16 Cal.3d 282 0...cceens 53, 64, 65 People v. Edelbacher (1989) 47 Cal.3d 983 0...eeetenes 76 People v. Fairbank (1997) 16 Cal.4th 1223 2.ceceeens 79 People v. Fauber (1992) 2 Cal.4th 792 0.0cenceteenies 89 People v. Fierro (1991) 1 Cal.4th 1732ceceteenies 90 People v. Gamache (2010) 48 Cal.4th 34720.97, 98 People v. Ghent (1987) 43 Cal.3d 739 2...ccccnet n tne eee 91 People v. Griffin (2004) 33 Cal.4th 536 2...cccnen eens 80 People v. Hamilton (1989) 48 Cal.3d 1142 2.cccece teen eee 86 Xil TABLE OF AUTHORITIES Page(s) People v. Harrington (1871) 42 Cal. 165 2...ees 63, 64, 80, 82 People v. Hawthorne (1992) 4 Cal.4th 43 ooeete eee tee teen eens 79 People v. Hernandez (2011) 51 Cal.4th 733 00... cece cece eee eee eee teens 69, 75 People v. Hill (1998) 17 Cal.4th 800 0...eeetenes 92 People v. Hillhouse (2002) 27 Cal.4th 469........ Denne een ee ene eee n nes 86 People v. Holt (1984) 37 Cal.3d 436 2... cece cee eee ene eens 92 People v. Joseph (1983) 34 Cal.3d 936 20... cece cee ee eet tenes 4] People v. Kelley (1980) 113 Cal.App.3d 1005 00... eee eee eee tee tne 87 People v. Kennedy (2005) 36 Cal.4th 595 00... ceceeenteens 78 People v. Lenart (2004) 32 Cal.4th 1107 00... cece eee ee eee etnies 82 People v. Mai (2013) 57 Cal.4th 986 2.0... cece eeeeen ete ees 42 People v. Manriquez (2005) 37 Cal.4th 547 00.cccene een tenes 90 Xili TABLE OF AUTHORITIES Page(s) People v. Massie (1985) 40 Cal.3d620 20...cee 36, 39, 42 People v. McDaniel (2008) 159 Cal.App.4th 736... 0.ceeee ees 69, 74 People v. Medina (1995) 11 Cal.4th 694 0...cece 83 People v. Miller (2009) 175 Cal.-App.4th 1109 2...eeeee poe. 69, 75 People v. Moore (1954) 43 Cal.2d 517 oo. eccce ene 87 People v. Prieto | (2003) 30 Cal.4th 226 20...cee eens 80, 82, 83 People v. Riccardi (2012) 54 Cal.4th 758 00.ceeene nee 80 People v. Rice (1976) 59 Cal.App.3d 998 0.0...ceeeens 88 People v. Schmeck (2005) 37 Cal.4th 240 2...cccence teen eens 76 People v. Sedeno (1974) 10 Cal.3d 703 2... eeecee Settee ene eas 80 People v. Sengpadychith (2001) 26 Cal.4th 316 0...ccccee eee teens 90 People v. Snow (2003) 30 Cal.4th 43 00.ceecence eect e eens 91 XiV TABLE OF AUTHORITIES Page(s) People v. Soukomlane (2008) 162 Cal.App.4th 214 00... cece cnet eens 75° People v. Stanley (1995) 10 Cal.4th 764 00... cece ceceeeeeens 77 People v. Stanworth (1969) 71 Cal.2d 820 20... ieee cee eee ce te teens 4] People v. Stevens (2009) 47 Cal.4th 625... . 6. cece cece eee tees 66, 67 People v. Stewart (2004) 33 Cal.4th 425 0... cece cece eee eens 43, 44 People v. Sturm (2006) 37 Cal.4th 1218 0.0... cece eee ee een teens 92 People v. Taylor (1990) 52 Cal.3d 719... ce cece eee ee eet en teens 82 People v. Vaughn (1973) 9 Cal.3d 321 0... ccc cece eee een tenes 37 People v. Williams (2010) 49 Cal.4th 405 0.0... cece cee ee eee tenes 78 CONSTITUTIONS Cal. Const., art. I, §§ 720 LS ccc cc ete e eens 20 LO Lecce cece eee e eens 20 rr20 U.S. Const., Amends. apassim Occ cee eee ee eens passim Bcceee eens passim V4 lccee nee passim XV TABLE OF AUTHORITIES Page(s) STATE STATUTES Evid. Code, § S20 Liecee teens 81 Pen. Code, §§ 186.22 2.eee 2,4, 5 2,5, 97 190.2... ec c cee eaee 2, 3, 76, 77 190.3 2... kee eee passim 190.4 2.ccceens 5 245 Lccee nee 3,4, 5 664 Loeeee teens 3 O67 Lic cece nent e eens 3 987.9 Looecee 26, 27, 97 L018 wo.eee eee passim 1024, cece ee ees 38 1158a. cece eee 83 1192.7 2 oe cece enn 2 1202.4 2...eee passim 1202.44 2. cece cee eens 5 1202.45 2... cece 5, 94 1239 Ll 2 2933 Lceects 97 2933.2cee ees 97, 98 12022 2.cee eee 2,5 12022.7 2hcceens 5 COURT RULES Cal. Rules of Court, rules a90 90 8.630 occ cece eee eens 100 JURY INSTRUCTIONS CALJIC, Nos. 8.85ceeee 81, 86 8.88cee81, 87 XVI IN THE SUPREME COURTOF THE STATE OF CALIFORNIA Defendant and Appellant. ) PEOPLE OF THE STATE OF CALIFORNIA,) $140894 ) Plaintiff and Respondent, ) (Santa Barbara | ) County Superior Ct. VS. ) No. 1200303) ) JOSHUA MARTIN MIRACLE, ) ) ) ) APPELLANT’S OPENING BRIEF INTRODUCTION Appellant and Robert Ibarra were charged with the murder of Elias Silva, found stabbed to death at the homeof Ibarra’s friend Robert Galindo. Appellant’s case proceededfirst. Although Penal Code section 1018 expressly prohibits a defendantfrom pleading guilty to capital murder unless he appears with:counsel and hasthe consent of counsel,thetrial court granted appellant’s motion to represent himself and acceptedhis plea of guilty based on the consent of advisory counsel. The court also insisted appellantbe visibly shackled throughoutthetrial, to an extent that exceeded what law enforcement personnel charged with courtroomsecurity thought necessary. Theexcessiverestraints inhibited appellant’s ability effectively to represent himself and prejudicially fueled the prosecutor’s argument that appellant would pose a dangerin prison if not sentencedto death. Finally, the trial court erroneously imposedrestitution fines without inquiring into appellant’s ability to pay more than the statutory minimum. Because appellant’s invalid guilty plea must be vacated, his conviction and death sentence must be reversed. The excessive and visible shackling independently warrants reversal of appellant’s sentence of death. The restitution fines should be vacated or reduced to the statutory minimum. STATEMENT OF APPEALABILITY This appeal from a final judgment imposing a verdict of death is automatic under Penal Code section 1239, subdivision (b). STATEMENT OF THE CASE Appellant Joshua Martin Miracle and Robert Quinones Ibarra were indicted on March 7, 2005, for the murder of Elias Silva (Pen. Code, § 187, subd. (a)) (Count 1), alleged to have occurred late Saturday night or early Sunday morning, October 2 or 3, 2004. The indictment charged,as special circumstances, that appellant and Ibarra had intentionally committed the murder while lying in wait (Pen. Code, § 190.2, subd. (a)(15)); that in the commission of the murder appellant and Ibarra had each personally used a deadly and dangerous weapon(a knife) (Pen. Code, § 12022, subd. (b)(1)), rendering the offense a serious felony (Pen. Code, § 1192.7, subd. (c)(23)); and that appellant and Ibarra had each committed the offense for the benefit of, at the direction of, or in association with, a criminal street gang (the Santa Barbara Eastside gang) (Pen. Code, § 186.22, subd. (a)(22)).' Appellant wasalleged to have committed the murder while an active participant in, and to further the activities of, a criminal street gang (the ' At somepoint the cases were severed fortrial, and Ibarra wastried separately in 2011. (See People v. Robert Quinonez Ibarra (Mar. 11, 2014, B243065) [nonpub.opn.].) Santa Barbara East Side gang) (Pen. Code, § 190.2, subd. (a)(22)). Appellant was also charged with the September 23, 2004, attempted murder of Jaime Alfaro Lopez (Pen. Code, §§ 664 and 187, subd. (a)) (Count2). With respect to Count 2 the indictment charged, as a lesser offense, the crime ofassault with a deadly weapon(a knife) (Pen. Code, § 245, subd. (a)(1)). Finally, as to Counts 1 and 2 appellant wasalleged to have previously been convictedofa serious or violent felony (Pen. Code, §§ 667, subd. (d)(1) & (e)(1), 1170.12, subd. (b)(1) & (c)(1), 1192.7, subd. (c). C1 CT 1-6.) On March 23, 2005, the prosecutor stated that he intended to seek the death penalty. (1 CT 21.) Appellant, throughhis appointed counsel, Michael Carty, announcedhis intention to file a motion to represent himself, pursuant to Faretta v. California (1975) 422 U.S. 806. ([bid.) Mr. Carty indicated that appellant was pursuing the Faretta motion against his advice. (1 RT 33.) On April 5, 2005, Mr. Carty announcedthat appellant wished to plead guilty to the murder and attempted murder counts and admitat least one special circumstance allegation; that he had informed appellantthat Penal Codesection 1018 prohibited the court from accepting a guilty plea in a capital case without the consent of counsel; and that he would not consent to the guilty plea. (1 RT 57-58.) On April 20, 2005, the court heard and granted appellant’s Faretta motion. (2 CT 534, 537.) The court then proceeded with the arraignment and entered a plea of not guilty and a denial of the special circumstance 2 “CT”refers to the Clerk’s Transcript; “RT” to the Reporter’s Transcript. allegations on appellant’s behalf, over appellant’s objection. (1 RT 111-112.) On April 28, 2005, the court appointed Joseph Allen as appellant’s advisory counsel. (2 CT 558, 559-560.) On July 29, 2005, advisory counsel announcedthat he consented to appellant pleading guilty to Count | (murder) and admitting the special circumstance and other allegations. (2 CT 599-600.) The court accepted appellant’s plea. (2 CT 599-600, 3 CT 602-610.) Appellant maintained his plea of not guilty as to Count 2 (attempted murder). (3 CT 601.) On September 8, 2005, the court granted the prosecution’s motion to amend Count2 to add theallegation that appellant had used a knife in the commission of the offense (Pen. Code, § 245, subd. (a)(1)) and to dismiss the street gang allegation (Pen. Code, § 186.22, subd. (b)(1)). Appellant then changed his plea on Count 2 to guilty and admitted the remaining special allegations. (3 CT 613-615; 618-625.) On November3, 2005, the court granted the Santa Barbara County Sheriff's motion to have appellant physically restrained in the courtroom. (3 CT 881-882.) Jury selection began November 14, 2005 (3 CT 895) and was concluded December6, 2005, with the swearing of the jurors and the alternates (4 CT 948). The penalty phase began December 7, 2005. The court gave preliminary jury instructions and the prosecutor gave his opening statement and began presenting the state’s case in aggravation. (4 CT 1008-1009.) > The court originally appointed Adam Pearlmanas advisory counsel, but relieved him based on a conflict ofinterest arising from his formerrepresentation of a prospective percipient witness in this case. (2 CT 557.) The prosecution and defense rested on December 15, 2005. (4 CT 1018.) The defense presented no evidence. On December 19, 2005, the prosecutor gave his closing argument. The defense gave no closing argument. The court further instructed the jury and the jury beganits deliberations. (4 CT 1063-1064.) The jury reached its death verdict the same day, after deliberating approximately an hour and a half and addressing a note to the court in writing. (4 CT 1064-1065, 1113-1115.) On January 17, 2006, the court denied appellant’s automatic motion, pursuant to Penal Code section 190.4, subdivision (e), for modification of the death sentence. On January 24, 2006, appellant was sentenced to death on Count 1 (Pen. Code, § 187); to 10 years imprisonmentfor the associated street gang allegation (Pen. Code, § 186.22, subd. (b)(1)), stayed pending this Court’s disposition of appellant’s automatic appeal; andto a total of seven years imprisonment on Count 2 (Pen. Code, §§ 245, subd. (a)(1), 12022, subd. (b)(1) and 1202.7), also stayed. (4 CT 1152.) Appellant was ordered to pay over $20,000 in restitution and parole revocation fines, pursuant to Penal-Codesections 1202.4, 1202.44 and 1202.45. (4 CT 1152- 1153, 1169, 1171.) The parole revocation fines, only, were stayed. (4 CT 1169, 1171.) | STATEMENTOF FACTS 1. The Circumstances Ofthe Silva Homicide (Count1) In support ofhis position that the “circumstancesof the crimes,” within the meaning of Penal Code section 190.3, subdivision (a), warranted imposition of the death penalty, the prosecutorcalled lay witnesses who described what they heard and sawat the apartment wherethe homicide occurred; law enforcement personnel who described the crime scene and the 5 recovery of evidence; a gang expert; and the victim’s mother and wife, who described the impact of his death. Autopsy photos were introduced by stipulation. From this evidence the jury learned the following. A. Robert Galindo Elias Silva was stabbed to death Saturday night, October 2, 2004, at the apartment where Robert Galindo lived with his brother Rodney Galindo and Rodney’s partner Phillip Alliano. Galindo pled guilty to voluntary manslaughter in exchangefor testifying for the prosecution at appellant’s and Ibarra’s trials. (7 RT 1623-1624; People’s Ex. 6.) He had not yet been sentenced whenhetestified at appellant’s trial. (7 RT 1623.) Asked whether the plea arrangement gave him “some concern that what you say in this trial needs to be what the district attorney believes the truth is,” Galindo replied, “Well, yes, of course.” (7 RT 1709.)4 Galindo had knownIbarra and Silva for about three years. (7 RT 1620, 1622.) Ibarra used to “hang out” at Galindo’s apartment and the two used “crystal meth”together. (7 RT 1621-1622, 1625.) There had been some animosity between Ibarra and Silva: they had had a girlfriend in common,and Ibarra resented that Silva had a good job and was doing well. (7 RT 1627.) Galindo also offered that nobody liked Ibarra. (7 RT 1718.) Silva sold crystal meth, including to Galindo. (7 RT 1647, 1710.) Galindo was confused about the timing of the parties’ comings and goings during the twoor three days preceding the homicide. (7 RT 1631- 1637.) At some point, a day or two before Silva was killed, Galindo’s friend Danny Ramirez came by the apartment, with appellant. (7 RT 1628- * Galindo’s plea bargain also required him totestify truthfully at Ibarra’s trial. (7 RT 1709-1710.) 1630.) Ibarra and Silva apparently were already there. (7 RT 1630-1631.) Galindo did not know appellant, but Ibarra and appellant knew eachother. (7 RT 1630.) Ramirez,a tattoo artist, had come because he had agreed to do a tattoo for Silva; but they decided to postponethe project andSilvaleft. (7 RT 1627-1629, 1631.) Ramirez asked Galindoif he and appellant could stay the night at Galindo’s apartment and Galindo agreed, expecting Silva would pick them up the next morning. (7 RT 1631.) Ibarra, Ramirez and appellant spent the night at Galindo’s apartment, Galindo seemed unsure whetherthis was the Thursdayor the Friday before the homicide. (7 RT 1631, 1636.) The next morning, while Galindo was in the shower, Silva stopped by and picked up Ramirez,but not appellant or Ibarra. (7 RT 1632.) This, and the fact that Silva had not comein to say hello, upset Galindo. (7 RT 1623, 1634-1635.) Galindo made breakfast for himself, Ibarra and appellant. (7 RT 1633.) Ibarra and appellantthenleft together; appellant returned to the apartmentalone. (7 RT 1633-1634.) Galindo,still upset with Silva, persuadedhis friend Darren to come by and drive him to Silva’s house, wherehe then told Silva how muchthe slight had bothered him. (7 RT 1634-1635.) According to Galindo, “he” — it is not clear whether this meant Silva or Ramirez — said he should “get that guy out of your house,”referring to appellant, because he was “no good.” (7 RT 1635.) Darren then drove Galindo backto his apartment, stopping on the way so they could buy food and get gas. (7 RT 1636.) Galindo was confused as to whetherthis occurred on Friday or Saturday. (/bid.) Appellant wasstill at Galindo’s apartment, but Galindo expected Ramirez would pick him up. (7 RT 1637-1638.) Galindo felt he was doing Ramirez a favor by allowing appellant to stay with him, and appellant was “not doing anything wrong.” (7 RT 1638.) Appellant was quiet and they just “kicked 7 back” and watched television. (/bid.) Ibarra apparently then also returned to the apartment. (/bid.) Galindo woke Saturday morning to find Ibarra and appellantstill there. (7 RT 1638.) Galindo’s brother Rodney, who worked nightsat the Chumash Casino, came home from work. (7 RT 1638-1639.) Ibarra and appellant were getting along well and spenta lot of time using crystal meth together. (7 RT 1639.) At Galindo’s request, they did this in the bathroom. ([bid.) Galindo identified Ibarra’s glass pipe shownin a photograph introduced as People’s Trial Exhibit 17, noting that Ibarra always had a pipe with him. (7 RT 1699-1700.) Galindotestified that he did not use drugs that day because he waspreparing to take a drugtest, as part of a drug diversion program he wasin as the result of a drug-related arrest. (7 RT 1639, 1708, 1713-1714.) But Galindo admitted he had used meth with Ibarra the day before appellant first came to his apartment. (7 RT 1706.) Ibarra apparently left at some point on Saturday to visit his daughter. (7 RT 1640.) He returned in the early evening with a large black bag on wheels. (7 RT 1641-642.) Ibarra told Galindoit contained the clothes he and appellant were going to wear to a party. (7 RT 1641-1642.) Appellant wasin the kitchen, fixing something to eat with the groceries he and Galindo had gotten earlier that day. (7 RT 1642-1643.) According to Galindo,“(t]he mood changed when Ibarra got there.” (7 RT 1644.) “He waspretty much like wired. He waslike, you know just all, antsy. He waslike, you know,ready,like, okay, let’s do it, you know, let’s go party, or do this, or whatever. Because he was morelike [in] a very hyper mood.” (/bid.) Galindo movedIbarra’s black bag outto the patio. (7 RT 1644.) Although he had earlier testified that he did not see what wasin the bag, he changedhis testimony andsaid it looked like “there was a white 8 plastic bag in there.” (7 RT 1641-1642, 1644.) Galindo gave Ibarra someneedlesto use to inject crystal meth intravenously. (7 RT 1645.) Galindo had gotten them from his father (who wasdiabetic), at Ibarra’s request. (/bid.) Galindo then overheard a conversation between Ibarra and appellant about “rats” and the needto “take care of this rat,” which he understood referred to people who cooperated with law enforcement by “ratting out” people, “like for drugs.” (7 RT 1646.) Ibarra and appellantalso talked about “some girls, or whatever, you know ....” (/bid.) Galindo did not recall hearing them discuss “taking somebody down, or something along thoselines.” (Ibid.) Nor did herecall Ibarra or appellant saying much about Silva. (7 RT 1715.) At somepoint Galindo wasaskedto call Silva, to have him bring drugs over. “Ibarra wantedto get some drugs because he just got his check.” (7 RT 1647.) When Galindo called, Silva declined the request, reminding Galindo that he “d[idn]’t want anything to do with them” and telling Galindo to “get them outof[his] house.” (7 RT 1648.) Ibarra, whosecell phone waslosing its charge, urged Galindo to go use a pay phonetotry calling Silva again, because he wanted drugs to “party with the girls.” (Ibid.) Galindo agreed to go call Silva again andleft the apartment, but he did not call Silva. (7 RT 1649.) Whenhe returned he wassurprised to find Ibarra and appellant again in the bathroom using drugs, even though Ibarra had madeit seem they had exhausted their supply and neededSilva to provide more. (/bid.) Ibarra and appellant again asked Galindoto call Silva: “Tbarrais all, ‘Just f--ing call him again,” he’s all, ‘you know, and we'll be out of here.’” (7 RT 1650.) Galindo reminded Ibarra thathis phone was dying andasked, 9 “how am I supposedto call?” (/bid.) Ibarra persisted, “Just give him call, you know,call him.” Galindo told Ibarra he had already called Silva more than once. (/bid.) Galindo then took the phone (presumably [barra’s dead or dying cell phone) and pretendedto call Silva. (7 RT 1650-1651.) Ibarra urged Galindo to “keep on trying.” (7 RT 1651.) Galindo thenleft, saying he would try Silva again from the pay phone, and get some cigarettes while he was out. (7 RT 1652.) When Galindo returned Ibarra wasstill “persisting” on his calling Silva. (/bid.) Galindo told Ibarra he had been trying and hadleft messages for Silva on his voicemail. (/bid.) Galindo initially testified that appellant was in the kitchen taping the loose handle of a kitchen knife (7 RT 1652-1653), but later acknowledged he did not see appellant put tape on the knife (7 RT 1716). Ibarra, who had become “pushy” and angry, again urged Galindoto cal! Silva, andagain Galindo responded that he had already called many times. (7 RT 1653.) Ibarra and appellant were both getting agitated, repeatedly telling Galindoto call Silva. (7 RT 1654.) Galindo left the apartment once again, but decided not to call Silva. (7 RT 1655-1656.) He smokeda cigarette and contemplated how to get Ibarra and appellant to leave his apartment: “{B]ecause the way Ibarra was already,like, agitated and jumpy, and I wasjustlike sh-t, you know. And I knew how Ibarra is, you know, I seen how he got, you know,I’ve been around him and that’s why I didn’t stay.” (7 RT 1656.) When Galindoreturned to his apartment this time, two pieces of furniture had been movedinto the kitchen, leaving more open space in the living room. (7 RT 1656, 1658.) When Galindo asked Ibarra why, Ibarra told him to shut up andcall Silva. (7 RT 1657.) Appellant also told Galindoto call Silva. (/bid.) When Galindo asked Ibarra why they were 10 “doing this” to him, Ibarra again told Galindo to shut up andcall Silva. (Ibid.) Atthat point appellant brought out a knife from the kitchen, heldit up to Galindo’s throat and told him to call Silva. (7 RT 1657-1658.) Appellant threatenedto stab him if he did not, and said, “Just call. The only reason I’m not going to do this is because you didn’t disrespect me.” (7 RT 1659.) Appellant was standing behind Galindo; Ibarra was facing the two of them. (7 RT 1660.) There wasa lot of “cussing” and yelling, and Galindo began to cry. (7 RT 1660-1661.) Ibarra’s cell phone then rang;it was Silva calling. (7RT 1663-1664.) Galindo spoke to him and repeated whathe hadsaid in the message he had left earlier, in an effort to get Silva to bring drugs: that his cousins wanted Silva to bring drugs over because they were going with some girls to “party.” (Ibid.) Galindo asked Silva to pick him upin the back of the apartment complex, which he thought mightsignal Silva that “something was up.” (7 RT 1664-1665.) Galindo suspected Ibarra was intendingto steal drugs from Silva. (7 RT 1665.) Silva called again and said told Galindo he wasjust getting off the freeway. (7 RT 1665.) Appellant told Galindonotto go outside but to wait for Silva to come to the door. (7 RT 1665-1666.) Galindo “kept ontelling Ibarra, ‘Why are you doingthis to me, you know, why?”(7 RT 1666.) _ Silva called again. He was coming up to Galindo’s front door and asked why Galindo hadnot met him out back. (/bid.) Appellant, still holding the knife to Galindo’s throat, told Galindo to let Silva in. (7 RT 1666-1667.) Silva started to enter the apartmentandIbarrastruggled to pull him into the living room. (7 RT 1669, 1671, 1681.) Appellant then pushed Galindototheside,still holding the knife, to help Ibarra get Silva into the room,andtold Galindo to lock the door. (7 RT 1670, 1681, 1768.) Ibarra 11 said, “Whatever comesin that f—ing door . . [w]e’ll kill him, you know, I'll kill whoever comesin that door... . [{] I don’t care if it’s Phillip [Alliano], whoever. ... You don’t let nobody in.” (/bid.) Silva asked, “Whatthe f--- did I do?” (7 RT 1677.) Galindo ran out the door and across the street to where Silva used to live, to look for Silva’s “homeboys,” because “these guys had weapons, {and he] didn’t have nothing.” (7 RT 1670-1671, 1686, 1689.) Galindo wasalso looking for Phillip (his brother’s partner), “because Ibarra knew my family, he didn’t like Phillip, and Phillip lived with me....” (7 RT 1689.) Phillip was due to be coming home, and Ibarra had said he would kill anyone who came to the door. (7 RT 1689-1690.) When Galindo went back to his apartment about 20 to 25 minutes later he saw trail of bloody footprints and drops of blood leading from the front door toward the parking lot. (7 RT 1690-1692.) He opened the door but did not go in. (/bid.) Lookinginto the apartmenthe saw blood,a damagedpiece of furniture and Silva, on the floor in the center ofthe living room. (7 RT 1692, 1694.) He did not step inside the apartment because he did not wantto leave his footprints in the blood. (7 RT 1727.) He “freaked out” and “went into shock.” (7 RT 1695.) Galindo again went to look for Phillip, whose uncle wasa sheriff. Hecut through nearby San Marcos High School and ended up at the home of Elia Alvarado. (7 RT 1695.) Although there was a pay phoneat the high school gym, Galindo did not stop to call 911, because he was scared. (7 RT 1722.) Galindo did not tell Alvarado what had happened,nordid he call 911 from her residence. Heasked Phillip (who apparently wasthere)to call his uncle, so that he or someoneelse from the Sheriff's Department could go to Galindo’s apartment. (7 RT 1696, 1723.) Insteadof calling his uncle, 12 Phillip called Megan Pope. (7 RT 1724.) They eventually called 911. (7 RT 1695, 1745.) Whenasked whether he thought the police might have been able to help Silva if summonedearlier, Galindo acknowledged that he had personal reasons for taking the time to seek out Silva’s friends, instead of | immediately calling the police: “I didn’t wantto get the police involved, and I didn’t need to add moretrouble to — at the time, I was thinking of me, too, so I didn’t you know.” (7 RT 1725.) Galindotestified that the taped-up knife that appellant had heldtohis throat wasstill missing from his residence. (7 RT 1682.) He identified a small knife, shown in People’s Exhibit 13, as appellant’s, and testified that he had seen appellant usingit to clean under his fingernails. (7 RT 1683- 1684.) Galindo could notrecall whether Ibarra had a knife. (7 RT 1670.) Galindoalsotestified that he recognized Ibarra in a Home Depot security camera surveillance video shownto the jury, in which Ibarrais seen standingin line at a check-out counter. (7 RT 1701; People’s Trial Ex. 16.) A receipt for the purchaseofplastic sheeting, vinyl gloves and a tool described by the prosecutor as “medieval”looking “weapon,” was later introduced into evidence. (8 RT 1759, People’s Ex. 26.) B. Nicole Palicios Galindotestified that 14-year-old Nicole Palicios, who knew Galindo and Ibarra and wasstaying in the same apartment complex, cameto his apartment on Saturday evening, before the homicide. (7 RT 1697.) Galindo asked Ibarra to ask her to leave, which he did. (7 RT 1697-1698.) Palicios herself testified that she was “on the run”at the time, staying at her friend’s grandmother’s apartment. (7 RT 1736.) She acknowledgedthat she knew Galindo and Ibarra andtestified that she had gone to Galindo’s 13 apartment Saturday morning,to pick up her purse, which she hadleft there the day before. (7 RT 1732.) She said she did not go inside the apartment and did not recall seeing appellant there. (7 RT 1732-1734.) Nor did she remembertelling the police that Ibarra had said she should leave because something very bad was going to happen,or that Ibarra in fact had saidthis. (7 RT 1735.) She also denied ever seeing anyoneuse crystal meth at Galindo’s apartment, and said she did notrecall telling the police she had seen Galindo, Ibarra or Silva using crystal meth in Galindo’s bathroom. (7 RT 1736-1738.) However, Deputy Sheriff Victor Alvarez testified that when he interviewed Palicios within hours of the homicide she quoted Ibarra as having said, “Meja, you need to leave. You can’t be here. Something bad is going to happen. | don’t want you to get hurt.” (7 RT 1741.) C. Law Enforcement and Forensics Personnel WhenSheriff's Deputies Hess and Esparzaarrived at the scene, Phillip Alliono and Megan Popewerethere, standing outside Galindo’s apartment; but Galindo was not. (7 RT 1745-1746.) Deputy Hess noticed a trail of bloody footprints and blood drops outside; inside the furniture was in disarray and Silva’s body lay on the living room floor.. (/bid.) Formersenior identification technician Lisa Hemman wentto the crime scene and took photosofthe victim; of the apartment andits contents, including a cell phone and a blood-stained knife on the floor; and of the contents of Ibarra’s black bag. (7 RT 1749-1756.) The bag, found on the balcony, contained a hatchet-like item, twotarpsorrolls of plastic sheeting, > Detective Alvarez explainedthat “meja”is a term of endearmentin Spanish,literally meaning “my girl.” (7 RT 1741.) 14 duct tape, a workman’s knife and a dark jacket of somesort. (7 RT 1751, 1757.) Noneofthe items in the duffel bag had blood on them,no duct tape was found on Silva, and nothing in the duffel bag was ever connectedto the homicide. (7 RT 1757-1758.) A numberofautopsy photos were admitted, by stipulation, because the pathologist who performed the autopsy wason vacation. (8 RT 1824, 1872-1874.) D. Statements By Appellant James Nalls, the prosecutor’s investigator, testified that on October 25, 2005, duringpretrial proceedings, he was present in the courtroom and heard appellant makethe following statements: “I believe in accepting the consequences ofmy actions, good or bad, and maintaining myprincipals (sic) regardless ofthe cost, including death. I feel that if I’m willing to kill I should also be willing to die.” (8 RT 1838.)° Nalls also quoted appellant having said,“I didn’t show any mercy,so I’m not goingto ask for any mercy.” ([bid.) Finally, Nalls testified he overheard appellant say the following, at the jail, to someone on the phone: “The wayI seeit, if I’m willing to kill I should be willing to die, too.” (8 RT 1839.) IL. The Lopez Assault (Count 2) Jaime Lopeztestified that he had knownappellant for four years and had been a memberofthe Eastside gang for 10 years. (6 RT 1595.) However, while he acknowledged getting “wounded”andstabbed at the Circle K market on September 23, 2004, he repeatedly either denied,or did not recall, appellant being there or being involvedin the incident, or saying 6 Appellant had made these statements in an effort to explain why he did not wish to present evidence in mitigation. (2 RT 421-422.) 15 so to Detective Gary Siegel at the time. (6 RT 1597-1606.) Detective Siegel, with the Youth Services Section of the Santa Barbara Sheriff's Department,testified that he primarily handled gang crimes and was familiar with the Eastside gang. (6 RT 1609.) He knew appellant and Jaime Lopez to be Eastside gang members. (6 RT 1608- 1609.) Detective Siegel testified that Lopez identified appellant from a photo line-up as the one whohadstabbed him, said he wasafraid to testify for fear of gangretaliation, and described how appellant had stabbed him while he wassitting in his car in the Circle K parking lot. (6 RT 1612, 1615-1618.) II. Prior In-Custody Incidents Deputy Sheriff Jesse Ybarratestified as to an incident that occurred whenappellant was being shackled at the wrists, with a lock box, in a holding cell in the courthouse, preparatory to being taken to court. (7 RT 1771, 1765-1768.) Appellant complained that the shackles were on too tight and that he was in pain, threatened to harm Deputy Ybarra and others, and ultimately was returned to his ceil at the county jail. (7 RT 1768-1771.) - Correctional officer Paul Deslaurier described an incident that took place in a hallwayat the county jail when appellant “bolted” after two other inmates who werebeing escorted back to their cells. (7 RT 1776-1778.) Although officer Deslaurier did not see appellant assault either of the inmates, one of them ended up with an abrasion and complained he had been struck. (7 RT 1778.) Several correctional officers testified about an incident when a “cell extraction” team, also knownas a jail SWAT team, forcibly removed appellant from his jail cell, using a taser gun and a “pepperball launcher.” (7 RT 1785-1796, 1789.) Appellant had essentially barricaded himself in 16 his cell and refused to “cuff up.” (7 RT 1783-1788, 1790.) Appellant resisted aggressively, but eventually was subdued by multiple pepper ball shots and was movedbodily to a “safety cell,” described as a hard rubber room where theprisoneris left in boxer shorts and a paper gown, pending consultation with a mental health professional. (7 RT 1714, 1792-1793, 1795, 1787, 1790.) A DVD ofthecell extraction, narrated by one of the participating officers, was played for the jury. (7 RT 1799-1812; People’s Ex. 35].)’ James Nalls read from a list of 27 incidents involving appellant, to which appellant had stipulated (8 RT 1863-1864, 1910-1913; 4 CT 1089- 1090 [jury instructions]), including: 13 incidents in which appellant was fighting or making threats while in the custody ofthe California Youth Authority (CYA); one felony conviction for battery on a peace officer, resulting in a commitment to the CYA;one conviction of felony assault on a youth counselorat the CYA; one conviction (by plea) to a misdemeanor assault on appellant’s then girlfriend; one conviction ofthreateninga witness to a gang-related crime; and the cell extraction described above. (8 RT 1840-1844.) Mr. Nalls also read from incidentreports regarding 25 of the 27 incidents. (8 RT 1844-1861, 1865-1872.) IV. Gang Expert Testimony Detective Siegel wascalled to testify a secondtime, about the local gangculture,lifestyle and rivalries (8 RT 1876-1893), and appellant’s membership in the Eastside gang (8 RT 1893-1986). According to Detective Siegel, both the assault on Lopez and the murderofSilva would 7 A previouscell extraction was mentioned but not described. (7 RT 1797-1798.) 17 benefit the Eastside gang. (8 RT 1897.) The Eastside gang would benefit from Silva’s murder because Silva was a Goleta gang member. (8 RT 1897-1898.) V. Victim Impact Testimony Deanna Garcia, Silva’s wife, testified she and Silva had been together 12 years prior to his death and had three children together. (8 RT 1900.) Silva had been a good father and had taken an active part in the children’s lives, and they missed him. (8 RT 1901.) Her ownlife had changedsince Silva’s death; she was trying to be strong for her children. (8 RT 1902.) Silva’s mother, Suzanne Silva, testified she had been close to her son and had never knownhim to be violent. (8 RT 1903.) When he was youngerhe wasassociated with the Goleta gang, but had essentially left ihat behind. (8 RT 1903-1904.) Shetestified that she missed her son very muchand that his death was very difficult for her grandchildren to understand. (8 RT 1905-1906.) 18 ARGUMENT I. APPELLANT’S GUILTY PLEA IS INVALID UNDER PENAL CODE SECTION 1018 BECAUSE APPELLANT WAS PROCEEDINGIN PRO. PER. AND HAD ONLY THE CONSENT OF ADVISORY COUNSEL A. Introduction Penal Code section 1018 expressly prohibits a trial court from accepting a pleaof guilty to a felony punishable by death from a defendant who does not appear with counsel, or, if represented by counsel, who does not havethe consent of counsel.® From thestart, appellant made clear he wantedto plead guilty to the murder count and admit the special circumstanceallegations. When his appointed counsel, MichaelCarty, refused to give his consent and expressed concern about appellant’s wish to forgo presenting mitigation, appellant sought to represent himself. He hoped that, without counsel, he could enter a guilty plea, admit the special circumstances and take controlofthe penalty phase. Although thetrial court seemingly understoodthe constraints of section 1018,it nonetheless relieved Mr. Carty, granted appellant’s Faretta motion, appointed Joe Allen as advisory counsel and accepted appellant’s plea of guilty to capital murder based on Mr. Allen’s consent. Under section 1018 anda line of decisions by this Court appellant’s plea is invalid. § Penal Code section 1018 provides in relevant part: Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. Noplea ofguilty of a felony for which the maximum punishmentis death,or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant’s counsel. 19 The original and longest standing provision of section 1018 applicable to capital cases states that no guilty plea shall be received in a capital case from a defendant “who does not appear with counsel.” Here, because appellant appearedin pro.per., after the court discharged his counsel, the prohibition against receiving appellant’s guilty plea was absolute. The acquiescence of advisory counsel did notsatisfy section 1018’s express requirement of consent of counsel. Advisory counselis not “counsel,” and Mr. Allen was never appellant’s counsel. The remedyfor this violation is to reverse the judgment of death and “strike from its records” appellant’s plea of guilty and admission ofthe special circumstances. (People v. Chadd (1981) 28 Cal.3d 739, 754.) Additionally, the trial court’s acceptance of appellant’s plea deprived appellant of his Fifth Amendmentprivilege against self-incrimination,his Sixth Amendmentright to trial by jury and to confront and cross-examine witnesses, his Eighth Amendmentrightto reliable, non-arbitrary sentencing determination, his Fourteenth Amendmentright to due process and his analogousrights underarticle I, sections 7, 15, 16, and 17 of the California Constitution. B. Procedural Background On March 29, 2005, when appellant appeared for arraignment, his counsel, Michael Carty, announced that appellant wished to represent himself pursuant to Faretta v. California, supra, 422 U.S. 806. (1 RT 27.) The court cautioned appellant against self-representation, directed Mr. Carty to discuss with appellant the implications of proceeding in pro.per., and indicated it would research whether a defendant could represent himself in a capital case. (1 RT 30-31.) Mr. Carty explained that he had discussed the disadvantagesofself-representation with appellant at some length and 20 opinedthat appellant was competentto represent himself. (1 RT 31.) Mr. Carty also stated that appellant was pursuing the Faretta motion against his advice. (1 RT 31.) The court continued the matter. (/bid.) On April 5, 2005, Mr. Carty informed the court that appellant intendedto plead guilty to the murder count (Count 1) and admitat least one ofthe special circumstanceallegations, and to plead guilty to the attempted murder count (Count 2) as well. (1 RT 57-58.) Mr. Carty added that he had explainedto appellant that section 1018 prohibited the court from accepting a guilty plea in a capital case without the consent of counsel, and that he “could notethically support his change ofplea.” (/bid.) Mr. Carty proposed the court appoint advisory counsel and condition acceptance of the plea on the consentof advisory counsel. (1 RT 58-59.) When the court suggested Mr. Carty take more time to review the record before deciding whether to consentto a guilty plea, appellant spoke up, making clearthat he did not think Mr. Carty would ever consent, and that in any event Mr. Carty would “interfere with what[he] want[ed] to do.” (1 RT 61.) Mr. Carty clarified that, independent of their disagreement aboutthe guilty plea, appellant had “very strong opinions about what type of evidence should bepresented on his behalfat the penalty phase,” and that appellant “want[ed] to control what sort of mitigating evidence is presented ....” (1 RT 64.) The court continued the arraignment. (1 RT 67.) When proceedings resumed two weekslater, Mr. Carty announced that appellant was making “an unequivocal and timely” Faretta motion and wishedto enter a guilty plea on all counts and admit the special circumstanceallegations. (1 RT 72-73.) Appellant wanted advisory counsel and waswilling to continue the arraignment for two weeksto allow advisory counsel time to review the record. (1 RT 73.) The court continued 21 the matter to the next day. (1 RT 74.) On April 20, 2005, Mr. Carty informed the court that, having completed his review ofthe record, including the transcript of the grand jury proceedings and “all of the thousandsofpagesofpolice reports,” he remained unwilling to consent to appellant’s entry of a guilty plea. (1 RT 84.) He noted that he and appellant also continued to disagree . fundamentally regarding the penalty phase. Mr. Carty reiterated his concerns about appellant’s “strong preferences” as to what material, if any, he would agree to present in mitigation, and about whether or not appellant would cooperate with a penalty phase investigation or agree to the participation of expert witnesses. (1 RT 84-85.) Thus, “part of Mr. Miracle’s desire to represent himself has to do not only with guilt, but with penalty phase presentation of the evidence.” (1 RT 85.) Mr. Carty surmised that no attorney would be willing to represent him on his terms: “I don’t believe Mr. Miracle will find any attorney that will agree not to present mitigating materials, case law prevents that, I believe, with certain tactical decisions which can be agreed on. (Sic.)” (1 RT 85.) Apparently believing that appellant and Mr. Carty disagreed principally about the penalty phase,the trial court suggested to appellant that he could allow Mr. Carty to represent him at the guilt phase, then represent himself at the penalty phase, should there be one. (1 RT 86.) Mr. Carty clarified that appellant wished to represent himself at the guilt phase (in order to plead guilty) and at the penalty phase(in order to ensure no mitigation would be presented). (1 RT 87.)’ Mr. Carty told the court that > Mr.Carty also told the court that appellant had refused to agree to provide mitigating evidence to the prosecutor, which Mr. Carty had sought (continued...) 22 he had given appellanta copyof section 1018 and of People v. Chadd, supra, 28 Cal.3d 739. (Jbid.) The court then engaged in a colloquy with appellant in which appellant stated that he had read the indictment; that he understood the penalty for murder with special circumstances was“[a] sentence of death or possibility oflife without parole (sic);” that he had some experience with the criminal justice system, but had nolegal training and had never represented himself; that he was 26 years old; that while his full-time formal education had endedin seventh grade hehad attended high school sporadically, had taken some college courses whileat the CYA and had completed sometrade schoolclasses; and that he could read and write. (1 RT 89-91.) Asked why he wanted to represent himself appellant stated: “I believe up to this point [Mr.] Carty’s just been interference.” (1 RT 91.) Appellantreiterated that he and Mr. Carty disagreed both onthe guilty plea and on the presentation of mitigating evidenceat the penalty phase: THE DEFENDANT: Well, like — like he pointed out, I wish to plead guilty to all of the charges, I don’t want to present a defense, [Mr.] Carty has strong objectionsto that. [§]] And we honestly have a disagreementoverthe mitigating evidence that he would like to present when weproceedto the penalty trial. I have strong objections to the mitigating evidence that he wouldlike to present. [{] And I also —I am not inclined to cooperate with any professional help that — that — that he would want me to — to talk to, to any professional investigator or psychologist or anything like that. I don’t intend on cooperating with any of them. (1 RT 91.) ° (...continued) to do in an effort to dissuade him from seeking the death penalty. (1 RT 106.) 23 The court next advised appellant that even if he were permitted to represent himself, there “wasstill going to be a trial”: THE COURT: You understand that even if I grant your motion to represent yourself in this matter that there’s still going to be trial in this case? I can’t accept — under the law of the State of California, I can’t accept a guilty plea or no contest plea from youin a capital case like this, do you understand that? [{] So you have a right under some circumstances to represent yourself, but even if I grant you that right in this case there’s still going to be a trial, do you understand that? (1 RT 92-93.) Appellant said he had “been led to believe” there were other options: “If you were so inclined to appoint an assistant counsel and he was willing to consent to my guilty plea, then that’s just as legitimate as Mr. Carty consenting to my plea.” (1 RT 93.) The court responded that, with or without advisory counsel, there was going to be “atrial”: THE COURT:Let me stop you right there. ... I think it’s highly unlikely that if you’re permitted to represent yourself that an advisory counselis going to be in a position to consent to your entering a guilty plea and admitting the special allegations. So whether you represent yourself without any advisory counsel, or if you represent yourself and I appoint advisory counselto assist you on an as neededbasis, okay, and that would be — that would be the way that I would appoint advisory counsel, in either case there’s going to be a trial. ... So there’s going to be trial either with you — with you representing yourself with the assistance of advisory counsel or with you having counsel appointed like Mr. Carty. (1 RT 93-94.) Appellant said he understood, but did not agree. (1 RT 94.) Hereiterated that if the case proceeded to trial he would not present a defense. (1 RT 94.) In the course of giving various admonishments regarding the risks 24 and disadvantagesofself representation, the court asked appellant whether he understood that he would be “muchbetter off” if he had an attorney representing him. (1 RT 96.) Appellant responded: “No. Because like I said — well, I understand what you’re saying, but I don’t feel that’s a valid point because I don’t intend on offering a defense anyways.” (Ibid.) Mr. Carty reiterated that he believed appellant was competentto represent himself, but added that he would be doing so against his advice. (1 RT 97- 98.) The court told appellant that self-representation wasill-advised, but then granted his Faretta motion. (1 RT 98-99.) Whenthe court indicated it would appoint “stand-by counsel, sometimesreferred to as advisory counsel,” withoutdistinguishing between the two, Mr. Carty explained that appellant was not requesting stand-by counsel, who would take overif appellant’s pro. per. status were revoked, but advisory counsel, whocould assist him in various ways, particularly given that the county jail had nolaw library. (1 RT 100, 101.) Mr. Carty declined the court’s suggestion that he serve as advisory counsel, noting that appellant did not wantto perpetuate their “clash of wills” and “was hoping that advisory counselwill find that his wish to plead guilty and admit the special allegations havea tactical basis for the mitigation phase and that there’s a good reasonnotto present mitigating evidence.” (1 RT 102.) Mr. Carty suggested Joe Allen to serve as advisory counsel. (1 RT 103.) The court then secured appellant’s waiver of the reading of the indictmentandentereda plea ofnot guilty and a denial of the special circumstances. (1 RT 110.) When appellant objected, the court reiterated that section 1018 precludedentry ofa plea ofguilty: THE COURT:.... [T]he law is . . . quite clear that on a 25 capital case I cannot accept a guilty plea from you. ... [T]here are other options available to you if you want to expedite this proceeding, but that’s going to be your choice, it’s going to be a choice that you makeafter you talk to your advisory counsel. Atthis point in the proceedings, I cannot accept a guilty plea from you, I cannot allow you to admit the special allegations. As I indicated to you, one way or the other we’re going to havea trial. (1 RT 112.) The court continued the arraignment. (1 RT 114-115.) On April 26, the court announcedit had appointed Adam Pearlman to serve as appellant’s advisory counsel. (1 RT 118.) The court relieved Mr. Pearlman two dayslater, based on a conflict of interest, and announced it had “taken the liberty of contacting Joe Allen,” who had agreed to act as advisory counsel. (1 RT 125-126, 139, 143.) On May24,the court addressed the issue of appellant’s access to discovery. (1 RT 172-190.) The prosecutor expressed concern that if appellant were given access to documents containing witnesses’ nameshe might seek “retribution,” yet recognized that appellant needed to review the materials, “especially given that his status is in pro. per.” (1 RT 178, 187.) The court again addressed the question of appellant’s self- representation whenit took up the issue of section 987.9 funding: THE COURT: The only thing that I’m concerned aboutin utilizing those fundsis that the decision to utilize those funds for a specific purpose be made by you, Mr. Miracle, because you’re the attorney of record, and notby Mr. Allen. [{] Mr. Allan ian duane anna1 hea wan ack a Fit AALINGL LS advisory counse:, ne Can aavise YOu a5 you SCe iit, he’s not co-counsel, he’s not your attorney, he’s there to advise you as you need advice in proceeding. (1 RT 224.)'° When appellant asked if he could authorize Mr. Allen to use ‘© Penal Codesection 987.9 authorizes funds for expert and (continued...) 26 the section 987.9 funds as he sawfit, the court reiterated its admonishment: “You're your own attorney, Mr. Allen is advisory counsel and not co- counsel, so I’m going to be looking to you when I have questions about what you want[to] do, how you would like to proceed, and you haveto understand your role with respect to Mr. Allen, okay?” (1 RT 225.) When proceedings resumed on June 14, appellant announced he wanted to plead guilty to all charges and admit the special circumstance allegations. (1 RT 228-229.) The court again told appellantthat it could not accept such plea: | THE COURT: .... Well, I think I explained to you once before that I cannot accepta guilty plea from you on a capital case. [{] You areentitled to... make certain decisions that might expedite thetrial in this matter, you can invoke your right to have a trial within sixty days, you can request a court trial as opposedto a jury trial, those are optionsthat are available to you that I’m certain you’ve discussed with Mr. Allen. [{] I see Mr. Allen shaking his head yes. But I cannot accept a guilty plea from you on a capital case. (1 RT 229.) Mr. Allen noted that he had found nocase law on whether, for purposes of section 1018, the consent of advisory counsel would be the “equivalent” of the consent of counsel. (/bid.) After conferring with Mr. Allen off the record, appellant asked whether the court would accepthis guilty plea if Mr. Allen consentedtoit as his advisory counsel. The court said it would not: “No, I’m not prepared to do that. I think, Mr. Miracle, that we spent some time discussing your right to representyourself, I granted you thatright, you're going to continue '0 (...continued) investigative services for capital defendants. (Pen. Code, § 987.9, subd. (a).) 27 to represent yourself.” (1 RT 230.) The court reiterated that appellant had the right to expedite the process and could tell the courtor a jury whatever he wishedto say. “But having chosen to represent yourself,” the court continued, “you have more limited options than perhaps you may have had with appointed counsel... .” (/bid.) Appellant asked to “waive [his] right to continue to represent [him]self’ and have Mr. Allen appointed, but the court declined: | THE COURT: Well, you’re not going to do that today. [¥] I took your decision to represent yourself seriously. We spent a lot of time discussing this, you indicated the reasons on the record why you wanted to represent yourself. You can’t just, you know,flip back and forth between representing yourself and having someonerepresent you. [{]] You now have advisory counsel and he’s there to advise you as you feel it necessary, but you’re representing yourself. I’m giving you your options now as an attorney and as a defendant, as an attorney representing yourself and as a defendant. [§] Your option is you can have a Court trial, you can havea jury trial, which do youprefer? (1 RT 231.) After a pause in the proceedings the court made clear it was open to reconsidering appellant’s self-representation, but only if he needed assistance in actually trying his case: THE COURT: Mr. Miracle... when I suggested to you that today I’m not preparedto allow you to withdraw your pro per status and appoint counsel, I’m not suggesting that at no point in the future, if you arc sincere about wanting to have counsel appointed to assist you in preparing a defense inthis case, that I would deny that request. [{] But if your intent is to play games with the Court, or to seek some other objective other than to have counsel appointedto assist you in preparing a competent defense, then, you know, we’re in a different posture. I may not grant that request. 28 (1 RT 231-232.) Whenthe court then asked Mr.Allen,“Is it [appellant’s] desire in having you appointed for the purpose of having you as appointed counsel now concurin his desire to plead guilty? (Sic)” Mr. Allen said, “That’s right,” and then offered to elaborate in camera. (1 RT 233.) During the in camera proceedings,'' Mr. Allen explained that he believed appellant was “correct in two fundamental points that are motivating his desire to enter this set of guilty pleas and admissions.” First, based on appellant’s review of “most”of the evidence, appellant believed the case against him wasvery strong; and second, appellant wanted “the record to be extremely clear that he’s taking full responsibility for what he decided to do.” (1 RT 239-240, 241.) Mr. Allen opinedthat, “in terms of convincing a jury not to vote for death,” appellant’s “strategy” was “the best available.” (1 RT 241.) Mr. Allen addedthat, “obviouslyif that acceptance of responsibility is something less than completely free and unconditionalit loses its moral strength as an argument to the jury.” (1 RT 242.) Mr. Allen offered that, “there is just no real likelihood of an acquittal[,]” but acknowledged that he had not “attemptedto assess Mr. Ibarra’s relative guilt...."? (1 RT 243, 244.) Appellant countered that, contrary to Mr. Allen’s representation, he '' By Orderfiled June 25, 2014,this Court granted appellant’s motion to unsealthe transcript of the June 14, 2005, in camera proceedings, spanning pages 238 to 254 of Volume | of the Reporter’s Transcript. '2 The transcript of the grand jury proceedings disclosed that Ibarra’s fingerprint waspositively identified on the pocket knife recovered at the crime scene. (2 CT 380-383; Grand Jury Exs.6, 36 and 37.) Although the knife with Ibarra’s fingerprint was the only one recovered from the crime scene, it was the prosecutor’s theory that Ibarra and appellant had each useda knife in the assault of Silva. (2 CT 484-486.) 29 wishedto plead guilty, andtestify at Ibarra’s trial, not for strategic reasons pertaining to the penalty phase of his owntrial, but because hefelt it was the right thing to do: “I feel that I’m the sole individual that is responsible, and that’s the only motive that I have is that I want to do the right thing and take responsibility and offer exonerating testimony on behalf of Mr. Ibarra.” (1 RT 246.) Thus, appellant did not intend to use the fact of a guilty plea as a factor in mitigation. (/bid.) When the court suggested this might not be appellant’s “main” motive and pointed out that his plea “would be used at the penalty phase,” appellant responded,“Tell you the truth, I’m not concerned aboutit at all.” (/bid.) Mr. Allen acknowledged that using the guilty plea in mitigation was not one of appellant’s motivations, thoughit was one of his. (1 RT 246-247.) Appellantreiterated that he did not want to put on a case in mitigation, “because it’s just against my grain. I just don’t believe in doing that, I believe the right thing for me to dois take responsibility.” (1 RT 247-248.) The court then explained to appellant that if Mr. Allen were appointed to represent him, it would be for the entire case, and that as counsel Mr. Allen would present mitigating evidence at the penalty phase: THE COURT: [Mr. Miracle], you understand that if you are represented by counselat the guilt phase I’m not going to allow you to represent yourself at the penalty phase, you’re going to be represented by counsel, and counsel is going to conduct your defense and he’s going to present mitigating avradawnn awaan thaaiah «rags enn, Ant want hie ta An that VVIUCLILS OVUlL UIVUBIL YUU Llidy WUOL WallLitt bo UU Lat entirely. (1 RT 248.) In other words, the court was not prepared to appoint Mr. Allen to represent appellant for purposes of entry of a guilty plea, then relieve him sothat appellant, in pro. per., could forego presenting a case in mitigation at the penalty phase. 30 The court informed appellantthat it was “99.9 percent sure” it was not goingto allow him to enter a guilty plea with the consent of advisory counsel, again explainingthat it read section 1018 as prohibiting acceptance of a guilty plea on that basis: [T]he legislature has madeit clear, as far as I’m concerned, that the only time you canenter a guilty plea is with the concurrence ofyour counsel, not concurrence ofadvisory counsel. And I’m not going to expand on whatthe legislature has said here and create new law. It may not be an unreasonable construction of existing law what you’re asking the Court to do, but I’m not going to do it. [{]] .... You don’t have concurrence of counsel, obviously, because you're representing yourself. (1 RT 251-252.) When proceedings resumed in open court the trial court confirmedthat appellant was contemplating withdrawinghis request to represent himself. (1 RT 256.) On June 28, Mr.Allen addressed the relationship between section 1018 and Faretta. In support of appellant’s “first choice” — i.€., to continue to represent himself and enter a guilty plea — he arguedthat if the right to self representation included the right to plead guilty ina capital case, then Faretta and section 1018 were in conflict. (2 RT 260-262.) He noted that appellant’s “second choice” wasto have him appointed to represent him. (2 RT 262-263.) The court respondedthat “[its] reading and view of Faretta is that it permits a defendantto represent himselfattrial whenthe defendant is of the view that he can provide for himself competentcounselattrial,” but that “[w]hen a defendant choosesnotto exercise that right to present a defense and to go to trial, but, rather, indicates to the Court that he would like to enter a guilty plea then I think we’re outside the parameters of Faretta.” (2 RT 263.) 31 Without citing People v. Chadd, supra, 28 Cal.3d 739, by name,the court noted there was a California case “that reconciles Faretta with Section 1018 and simply indicates that the State has a compelling interest in insuring that a right result is reached in a death penalty case. . . and that interest is furthered by requiring an attorney to consent to a defendant’s request to enter a guilty plea in a capital case.” (2 RT 263-264.) The court advised appellant that the only way he could plead guilty to capital murder was“with the consent of counsel, and that’s counsel that’s appointed to represent you.” (2 RT 264.) The court indicated that if appellant was “sincere” in wanting Mr. Allen to represent him, it would consider appointing him, but warned appellant that Mr. Allen would then be counsel for the duration, with no “going back and forth.” (2 RT 265.) The court agreed to Mr. Allen’s request for leave to file a brief on the section 1018/Faretta issue, but reiterated that “there are compelling reasons for Penal Code Section 1018 requiring the consent of counsel when a defendant in a capital case seeks to enter a guilty plea.” (2 RT 266-267.) On July 11, Mr. Allen filed his “Memorandum Brief In Support Of Constitutional Right of Self-Represented Defendant To Enter Plea Of Guilty To Capital Charge,” in which he argued that either the consent of advisory counsel should be construed as equivalent to the consent of appointed or retained counsel for purposesofsection 1018, or section 1018 conflicted with and should “give way”to appellant’s constitutional right to self-representation under Faretta, which guarantees a criminal defendant the right to personally defend himself. (2 CT 581-591.) When proceedings resumed on July 15, the court began byeliciting appellant’s acknowledgmentthat he had reviewed Mr. Allen’s brief and had authorizedits filing. (2 RT 273-274.) Appellant confirmedthat hestill 32 wishedto plead guilty to the capital murder count, but would maintain his not guilty plea as to Count2, the alleged attempted murderofJaime Lopez. (2 RT 275-277.) Turningto the merits of the guilty plea issue, the court elicited Mr. Allen’s agreementthat he had been playing a relatively active role, and appellant’s acknowledgmentthat this was acceptable. (2 RT 278-279.) The court then secured Mr. Allen’s agreement that “at least up until this point in the proceedings” he had been “willing to accept the duties and responsibilities of counsel for Mr. Miracle within the meaning of Penal Code Section 1018.” (2 RT 280-281.) Asked by the court whether he would characterize his role as having been “one of counsel and not advisory counsel,” Mr. Allen said he had “spent the same time and diligence and explored the same information and issuesto the same extent”as if he had been appointed to represent appellant. (2 RT 281-282.) Asked whetherthat wastrue “with particular reference to the spirit of Penal Code Section 1018,” Mr. Allen answered yes. (2 RT 282.) The court then asked appellant whetherhestill wanted to represent himself, (2 RT 282.) Appellant said he did. (/bid.) Asked whether he wanted the court to appoint Mr. Allen as his attorney, appellant said no. (Ibid.) When the court asked appellant whether he waswilling to accept the “sreatly expanded role” Mr. Allen wasplaying, appellant respondedthat he both accepted and encouraged it. (2 RT 282-283.) Summingup,the court stated: THE COURT: Well, the label that I’m going to continue to use with respect to you,Mr. Allen, will be advisory counsel. But I don’t want there to be any ambiguity in the record, and I don’t think thereis, in terms of the greatly expandedrole that you’ve assumedin discharging responsibilities as the 33 functional equivalent as of counsel for Mr. Miracle (sic). (2 RT 283.) The court then confirmed that appellantstill wanted to plead guilty to the capital charges and elicited Mr. Allen’s representation that he was prepared to consentto the plea, but continued the arraignmentagain, to allow appellant time to review the waiver of rights form. (2 RT 283, 287, 289-290.) When the prosecutor invited Mr. Allen, on behalf of appellant, to his office to review discovery materials, the court directed that this occur, to insure that “the person who hasbeenthe attorney, who has been designated advisory counsel, is one hundred percent comfortable with the giving of consent within the meaning of Penal Code Section 1018.” (2 RT 293.) On July 29, the court began the proceedings by noting that when the parties last appeared “we had a discussion about what we neededto do to enable you, Mr. Miracle, to enter a plea of guilty or no contest to the capital charges....” (2 RT 299.) Mr. Allen indicated he wassatisfied that he had all of the discovery, and appellant said he had reviewed it with Mr. Allen. (2 RT 300.) The court then elicited from appellant that, having discussed the matter with Mr. Allen, he wished to plead guilty, and from Mr. Allen his consent to the guilty plea. (2 RT 300-301.) The court then announced, “Well, ’'m going to accept the consentto theguilty pleas as is required by Penal Code section 1018.” (2 RT 301.) The court addedthat ‘“‘at least part of the justification and explanation for Mr. Allen providing consent” would be foundin the transcript of the in-camera hearing. (2 RT 303.) Whenthe prosecutor began going through the written waiver form, the court, addressing Mr. Allen, expressed its understanding that appellant waseffectively both representing himself and represented by counsel: THE COURT: We’re not relieving or withdrawing Mr. 34 Miracle’s pro per status. He’s entitled to that and he retainsit both now andinto future proceedings. [{] But your role as advisory counsel has been greatly expanded. In effect, you’re proceeding as counsel to Mr. Miracle. (2 RT 304.) Mr. Allen agreed. (2 RT 305.) The prosecutor then went through the waiver ofrights form, engaging in a colloquy with appellant, wherein appellant acknowledgedthat he had reviewed the form with advisory counsel and had no questions aboutit, had initialed and signedit as appropriate, understood the various rights he was waiving, and was receiving nothing in exchange for his plea. (2 RT 305-308.) Mr. Allen joined in the waiver. (2 RT 308.) The court engaged in a similar colloquy with appellant, asking him, among other things, whether he felt he understood the waiver form, whether advisory counsel had reviewedit with him and whether he(appellant) believed there was factual support for a conviction of murderandtherelated allegations. (2 RT 308-309.) The court secured Mr. Allen’s concurrence in the factual basis for the plea and announcedits finding that appellant had “knowingly,intelligently, and understandably waived hisrights.” (2 RT 309.) The court then reiterated that it “continued to be of the view that [appellant] has the intelligence and capability of representing himself,” and observed that there was “nothing _.. that would suggestthat there’s not a legal basis to go forward today.” (2 RT 309-310.) ‘At the court’s invitation, the prosecutor then took appellant’s guilty plea on the capital murder count (Count 1). (2 RT 310- 313.) On September8, 2005, appellant changedhisplea to guilty with respect to the attempted murder of Jaime Lopez (Count 2). (2 RT 333.) 35 C. Section 1018 Prohibits the Acceptance Of a Guilty Plea to Capital Murder From a Defendant WhoIs Representing Himself Section 1018 governs the acceptance of guilty pleas in felony cases. Asto capital cases the statute currently provides: “Noplea of guilty of a felony for which the maximum punishmentis death, orlife imprisonment withoutthe possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant’s counsel.” (Pen. Code, § 1018.) Thelegislative history of section 1018 and key decisions of this Court make clear that section 1018 prohibits a trial court from accepting a guilty plea in a capital case from a defendant whois representing himself. (See, e.g., People v. Massie (1985) 40 Cal.3d 620, 625 [ta defendant who wants to plead guilty in a capital case must be represented by counsel(italics added)’].) Asthis Court has noted, the Legislature amended section 1018 to impose special conditions on the acceptance of guilty pleas from unrepresented defendants,“drawing a distinction according to the severity of the potential punishment.” (People v. Chadd, supra, 28 Cal.3d at p. 749.) Section 1018 wasfirst amended to prohibit the acceptance ofa guilty to capital murder from a defendant “who does not appear with counsel,” and to provide that a guilty plea in a noncapital case could be accepted from an unrepresented defendantonly if he had “voluntarily, intelligently and lh ‘ . . anenly waitved hic riaht tn re mn Seay YAY WE AULD LAGLIL LY YY 9 MIL. TWO citing Ctata 10A0 vpy PyvvU ats. Lvyty, willis WJLaALD 1310, § 1, p. 2298 and Stats. 1951, ch. 858, § 1, p. 2369.) Thus, the more stringent of these amendments,applicable to capital felonies, categorically prohibited the acceptance of a plea by a self-represented defendant, even if he had given a constitutionally adequate waiver of counsel. (/bid.) 36 In 1973 the Legislature amended section 1018, to add that a defendantwishingto plead guilty to capital murder must again not only have counsel, but also the consentof their counsel, to close the “statutory gap”revealedin People v. Vaughn (1973) 9 Cal.3d 321, in which this Court had construedthe prior version of section 1018 as effectively allowing a capital defendant who had counsel to ignore his counsel’s professional judgmentandadvise. (People v. Chadd, supra, 28 Cal.3d at pp. 749-750, | citing Stats. 1973, ch. 719, § 11, p. 1301.) Section 1018 has consistently been construedto require, in the first instance, that defendant who wishes to plead guilty to a capital offense “be represented by counsel.” (Peoplev. Chadd, supra, 28 Cal.3d at p. 749, citing People v. Vaughn,supra, 9 Cal.3d at p. 327.) . In People v. Ballentine (1952) 39 Cal.2d 193, the defendant, charged with capital murder, appearedat the arraignment with counsel, who then withdrew whenthe defendant madeclear he did not wish to be represented by counsel. (/d. at p. 194.) When thetrial court informed the defendant that he wasentitled to counsel and “ought to have one,” the defendant stated he did not wish to have an attorney and “waived it.” (/bid.) The defendantsaid he wouldnot object to the court’s appointing counsel but also said he “c[ould]n’t see the sense of having one” because he intended to plead guilty, knowing the seriousnessofthe charges against him and the possibility he could be sentenced to death. The court then informed the defendantthat it could not “force anything on”him, but again advised him of his right to counsel. (/d. at p. 195.) Ultimately, the court accepted the defendant’s guilty plea and he was sentenced to death. (/d. at pp. 194-195.) This Court reversed, on the grounds that section 1018 prohibits the acceptanceofa guilty plea to a felony punishable by death from a defendant 37 who “is not represented by counsel.” (People v. Ballentine, supra, 39 Cal.2d at p. 196.) The Court rejected the state’s reliance on the defendant’s voluntary and knowing waiverofhis right to counsel, as well asits argumentthat section 1018 should not be construed to abrogate a defendant’s state constitutional right to represent himself: Thestatute . . . does not prevent a defendant fromwaiving his right to the aid of counsel and defending himself. It merely prohibits the court from receiving a plea of guilty to a felony for which the maximum punishmentis death made by a defendant not represented by counsel. Should a defendant waivehis right to counsel and refuse to answer the charge against him by an acceptable pleading, the court must enter a plea of not guilty for him (Pen. Code, § 1024.) The cause would then proceedto trial and the defendant might represent- himself, subject to the requirementthat his waiverofthe right to counsel was made understandingly, competently, and voluntarily in the exercise of a free choice. (id. at pp. 195-196, citations omitted.) The Ballentine court stressed that a criminal defendant does not have the absolute right to plead guilty to capital murder. (/d. at pp. 196-197.) | In People v. Chadd, supra, 28 Cal.3d 739, the defendant, charged with murder with special circumstances, initially entered a plea of not guilty, through his appointed counsel. (/d. at p. 744.) When the prosecutor announcedhis intention to seek the death penalty, defense counsel informed the court that his client wished to plead guilty, against counsel’s advice. (bid.) plea. (Ud. at p. 745.) Thetrial court concludedthatif it found defendant competent to represent himself under the standardsset out in Faretta,it could accepthis guilty plea despite his counsel’s refusal to consent. (/bid.) “The court reasoned simply that such a finding would be ‘tantamountto’ 38 relieving Mr. Pitkin as.counsel and permitting defendantto actually represent himself.” (/bid.) The trial court then questioned the defendant, found him competent and allowed him to plead guilty to murder and admit the special circumstanceallegations. (/bid.) This Court reversed the judgment, holding that “thetrial court committed prejudicial error in accepting [the] plea without the consentof defendant’s counsel as required by Penal Codesection 1018.” (People v. Chadd, supra, 28 Cal.3d at p. 743.) The Court expressly rejected the notion that section 1018 could be construed to permit a capital defendantto first obtain leave to proceedin pro. per. and then plead guilty. Construing section 1018, as amended in 1973, the Court reasoned,first, that as a matter of statutory construction it was “difficult to conceive ofa plainer statement of law than the rule of section 1018 that no guilty plea to a capital offense shall be received ‘without the consent of the defendant’s counsel.’” (dd. at p. 746.) The Court also concludedthat construing section 1018 to permit a self-represented defendantto plead guilty to capital murder would render the portion of section 1018 governing felonies not punishable by death superfluous: [The Attorney General] urgesin effect that [section 1018] be read to permit a capital defendantto dischargehis attorney and plead guilty if he knowingly, voluntarily, and openly waives his right to counsel. But that is precisely what the third sentence of section 1018 expressly authorizes noncapital defendants to do. The proposal would thus obliterate the Legislature’s careful distinction between capital and noncapital cases, and renderlargely superfluousits special provision for the former. Such a construction would be manifestly improper. (Id. at p. 747, citation and footnote omitted; see also People v. Massie (1985) 40 Cal.3d 620, 624 [Court rejects as “manifestly improper”any 39 construction that would “obliterate the Legislature’s careful distinction between capital and noncapital cases and render largely superfluousits special provision for the former’’].) The Court in Chadd explained that while the decision how to plead in a criminal caseis “personal to the defendant,” the Legislature “has the powerto regulate, in the public interest, the manner in which thatchoice is exercised,” because a guilty plea “is the most serious step a defendant can take in a criminal prosecution.” (People v. Chadd, supra, 28 Cal.3d at p. 748.) First, “[a guilty plea] operates ... as a waiver of formal defects in the accusatory pleading that could be reached by demurrer.” (/bid., citation omitted.) Second, “because there will be notrialthe plea strips the defendant of such fundamental protections as the privilege against self- incrimination,the right to a jury, and the right of confrontation.” (/bid., citing Boykin v. Alabama (1969) 395 U.S. 238, 243 and In re Tahi (1969) 1 Cal.3d 122, 130-133.) Third, “the plea is deemed to constitute a judicial admission of every element of the offense charged. ... Indeed,it serves as a stipulation that the People need introduce no proof whatever to support the accusation: the plea ipso facto supplies both evidence and verdict.” (Ibid., citations omitted.) Fourth, a guilty plea “severely restricts the defendant’s right to appeal from the ensuing judgment.” (/bid., citation omitted.) Section 1018 reflects the Legislature’s concern over these “consequences”of pleading guilty. (Ud. at pp. 748-749.) Here the implications of appellant’s plea could not be moreserious, as he pled guilty unconditionally to capital murder without the prosecution’s agreementthat 40 it would not seek the death penalty.'* Finally, the Court in Chadd consideredthe relationship between Faretta and section 1018, expressly concluding that Faretta “did notstrip our Legislature ofthe authority to condition guilty pleas in capital cases on the consent of defense counsel.” (People v. Chadd, supra, 28 Cal.3datp. 750.) The Court rejected the argumentthat the right to self-representation recognized in Faretta encompassesthe right of a capital defendantto forgo presenting a defense: The Attorney Generalin effect stands Faretta onits head: from the defendant’s concededright to “make a defense” in “an adversary criminaltrial,” the Attorney General attempts to infer a defendant’s right to make no such defense and to have no suchtrial, even whenhislife is at stake. But in capital cases ... the state has a strong interest in reducingthe risk of mistaken judgments. (Ud. at p. 751.) The Court reiterated that nothing in Faretta abrogated the holdingin North Carolina v. Alford (1970) 400 U.S. 25, 38-39, that a state may constitutionally prohibit all guilty pleas to murder charges,or the holding in People v. Stanworth (1969) 71 Cal.2d 820, 833, that a capital defendant has no right to waive his automatic appeal. (People v. Chadd, supra, 28 Cal.3d at pp. 751-752; see also People v. Alfaro (2007) 41 Cal.4th 1277, 1299 [reaffirming reconciliation of section 1018 and Faretta]; Peoplev. Joseph (1983) 34 Cal.3d 936, 948-949 [reaffirming that Faretta does not permit 13 The Commentary to Guideline 10.9.2 of the 2003 American Bar Association Guidelines For the Appointment and Performance Of Defense Counsel In Death Penalty Cases, in effect at the time of appellant’s plea, cautions, in pertinentpart, that: “If no guarantee can be obtained that death will not be imposed following a pleaof guilty, counsel should be very reluctant to participate in the waiver ofa client’s rights.” 41 defendantto “defend” himself by discharging counsel and waiving his automatic appeal].) Asrepeatedly affirmed by this Court, any uncertainty about the effect of Faretta on section 1018 was resolved in Chadd, when this Court held “that it was within the Legislature’s power to determine,as it has, that a defendant who wants to plead guilty in a capital case must be represented by counsel who exercises his independent judgment in deciding whether to consent to the plea.” (People v. Massie, supra, at p. 625, citing Peoplev. Chadd, supra, 28 Cal.3d at pp. 747-750; see also People v. Mai (2013) 57 Cal.4th 986, 1055 [“even if otherwise competent to exercise the constitutional right to self-representation [citation omitted], a defendant may not discharge his lawyerin order to enter such a plea over counsel’s objection”]; People v. Alfaro, supra, 41 Cal.4th at pp. 1299-1302.) As explained further below,the trial court erred as a matter of law in accepting appellant’s guilty plea because appellant was not represented by counsel whenhe enteredhis plea. D. Appellant’s Guilty Plea Was Invalid Because He Was Representing Himself When the Court Accepted His Plea After reviewing the record, appellant’s counsel, Mr. Carty, informed the court that he would neither consentto appellant’s guilty plea nor serve as his advisory counsel; he suggested that Mr. Allen be appointed as Wagga AnINGaa Tha nnvet nunant iA awnanin+A1DT.1NN \ awa talle Ai ‘ Ps L 1 1uvu- J LUG CUULL UVeiLUalLy UlU appulie ivi, n2 nw J 1 Allen, but still refused to accept appellant’s guilty plea as long as he wasin pro. per., and refused to appoint Mr. Allen as “counsel”for the sole purpose of his consenting to the guilty plea (1 RT 230-233, 265). The court also correctly explained that the Legislature had madeclear thata capital 42 defendant could plead guilty only with the concurrenceof counsel, not advisory counsel, and recognized that appellant did not have counsel: “You don’t have concurrenceofcounsel, obviously, because you’re representing yourself.” (1 RT 251-252.) Thetrial court wasright, in this instance,to stress the bright-line distinction between a defendantwhois self-represented and one whois represented by counsel. As this Court has explained, a defendanteitheris proceedingin pro.per. or is represented by counsel, but cannotbe both: [A]t all times the record should be clearthat ¢he accusedis either self-represented or represented by counsel; the accused cannot be both at once. A defendantrepresented by counsel whowishesto participate in the presentation ofthe case, but without surrendering the benefits of professional representation, may do so only with counsel’s concurrence and under counsel's supervision, and only by leave of the court upon a proper showing. (Citation.) Similarly, a self- represented defendant who wishesto obtain the assistance of an attorney in an advisory orother limited capacity, but without surrenderingeffective control over presentation of the defense case, may do so only with the court’s permission.... (People v. Bloom (1989) 48 Cal.3d 1194, 1219,italics added; see also People v. Stewart (2004) 33 Cal.4th 425, 517-518.) Here appellant sought and was granted leave to represent himself whenhis appointed counsel, Mr. Carty, refused to consent to his pleading guilty. The record confirmsthat appellantthen at all times remainedin pro. per., and that Mr. Allen served only as advisory counsel, and never as counsel of record. As noted, for example, during in camera proceedings conducted before entry of the plea the court noted that appellant “d[id]n’t have concurrence of counsel, obviously, because [he was] representing [him]self.” (2 RT 251-252.) When appellant asked the court whetherit 43 might accept his guilty plea based on Mr. Allen’s consent as advisory counsel, the court initially declined, because appellant was representing himself: “You now have advisory counsel and he’s there to advise you as you feel it necessary, but you’re representing yourself. I’m giving you your options now as an attorney and as a defendant, as an attorney representing yourself and as a defendant.” (1 RT 231, italics added.) Immediately before it accepted appellant’s guilty plea, the trial court asked whether, “Mr. Miracle, you continue to desire to represent yourselfand direct Mr. Allen to assist you as you deem appropriate?” Appellant answered, “Yes.” (2 RT 282, italics added.) When the court followed up with, “So you don't want the Court at this point in time to appoint Mr. Allen as your attorney?” appellant answered, “No.” (/bid., italics added.) Later, the court noted that “Mr. Miracle is representing himself. He requested the-assistance of advisory counsel. ... [W]e’ve worked out the relationship between Mr. Miracle and Mr. Allen, and whenever Mr. Allen is speaking,it’s with the ... express authorization ofMr. Miracle.” (7 RT 1699,italics added.)!* Because appellant was not represented by counsel when the court accepted his guilty plea, reversal is mandated as a matter of law undersection 1018. The fact that appellant wasin pro. per., as the trial court recognized, was dispositive — section 1018 unambiguously prohibits the acceptance of a guilty plea to capital murderby a self-represented defendant. (People v. Chadd, supra, 28 Cal.3d at p. 747.) The further provision of section 1018, '* The record ofthe parties’ appearancesalso routinely recites that appellant is appearing in pro. per., with advisory counsel (e.g., 1 RT 133, 154, 169, 199, 228; 2 RT 259, 273, 299, 347, 372, 409, 464; 3 RT 535, 566, 676, 732; 4 RT 789, 1013; 5 RT 1200; 6 RT 1386, 1473, 1560), and the court consistently described appellant, in the jury’s presence, as representing himself (e.g., 7 RT 1675; 8 RT 1918, 1953). 44 allowing acceptanceof a guilty plea with “the consentof the defendant’s counsel,”has no application here, precisely because appellant did not have “counsel.” The legislative history of section 1018 and the relevant decisions of this Court, discussed above, makeclear that while the categorical prohibition against acceptance of a guilty plea to capital murder from a defendant who does not “appear with counsel”is intendedto protect self-represented defendants from ill-advised pleas, the prohibition against receiving a guilty plea without “the consent of the defendant’s counsel”is designed to ensure that capital defendants who do have counselin fact are boundbytheir counsel’s independent professional judgment. (Peoplev. Chadd, supra, 28 Cal.3d at pp. 749-750.) Because appellant wasin pro. per., the “consent of counsel” provision of section 1018, as stated and construed by the courts, is not implicated. The court erred in allowing appellant to plead guilty based on Mr. Allen’s consent because Mr.Allen wasnever appellant’s ‘“‘counsel.” Thedistinction between counsel and advisory counsel is well established and legally significant. “When a defendantis represented by counsel, it is counsel who‘is in charge of the case’ and the defendant ‘surrenders all but a handful of “fundamental” personal rights to counsel’s complete controlof defense strategies and tactics.’” (/n re Barnett (2000) 31 Cal.4th 466, 472,italics added; accord People v. Cook (2007) 40 Cal.4th 1334, 1343 [“counsel, as ‘captain of the ship,’ maintains complete control of defensetactics and strategies, except that the defendant retains a few ‘fundamental’ personalrights”]; New York v. Hill (2000) 528 U.S.110, 114-115 [an attorney has full authority to manage the conductofthe trial without obtaining client’s approval]; Taylorv. Illinois (1988) 484 U.S. 400, 417-418 [same]; Jones v. Barnes (1983) 463 U.S. 745, 751-752 [while 45 client controls certain limited fundamental personalrights, counsel otherwise controls the case, even when contrary to client’s wishes].) By contrast, advisory counsel may be appointed, atthe trial court’s discretion, to advise andassist a self-represented defendant in presenting his defenseat trial; not in forgoing it. (People v. Bloom, supra, 48 Cal.3d at p. 1219; People v. Blair (2005) 36 Cal.4th 686, 725, disapproved on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920 [“‘Advisory counsel’ .. . is appointed to assist the self-represented defendant if and when the defendant requests help.”].) Thusthetrial court got it right the first time, whenit told appellant “the legislature has madeit clear . . . that the only time you can enter a guilty plea is with the concurrence of your counsel, not [the] concurrence of advisory counsel.” (2 RT 251.) Because appellant wasin pro.per., the court then erred in accepting his guilty plea under the plain terms of section 1018. E. The Acceptance Of Appellant’s Guilty Plea In Violation Of Section 1018 Compels Striking the Plea and the Admission of the Special | Circumstances and Reversing the Death Sentence Appellant’s guilty plea was invalid as a matter of law because he wasnot represented by counsel when the plea was accepted. The court’s acceptance of appellant’s guilty plea in violation of section 1018 compels the striking of the plea as well as the admission of the special circumstance allegations, and requires reversal of the death sentence. (People v. Chadd, supra, 28 Cal.3d at p. 754.) The erroneous acceptance of appellant’s guilty plea implicates constitutional, as well as state statutory, guarantees. Just as section 1018 furthers the state’s interest in reliable, nonarbitrary capital sentencing 46 determinations (People v. Chadd, supra, 28 Cal.3d at p. 750), it is equally well established that appellant himself has an Eighth Amendmentrightto a reliable, non-arbitrary sentencing determination. (E.g., Caldwell v. Mississippi (1985) 472 U.S. 320, 329-330; Peoplev. Chadd, supra, 28 Cal.3dat p. 750.) The court’s violation of section 1018 deprived appellant of that right. Moreover, as this Court recognized in Chadd, an invalid plea of guilty to capital murder also deprives the defendant of key Fifth and Sixth Amendments rights: “[B]ecause there will be notrial the [guilty] plea strips the defendant of such fundamental protectionsas the privilege against self-incrimination,the right to a jury, and the right of confrontation.” (People v. Chadd, supra, 28 Cal.3d at p. 748, citing Boykin v. Alabama (1969) 395 U.S.238, 243, and Jn re Tahl (1969) 1 Cal.3d 122, 130-133.) Finally, the Supreme Court has also recognized that a criminal defendant has a Fourteenth Amendment dueprocessliberty interest in the enforcementofstate statutory rights: Where. . . a State has provided for the imposition of criminal punishmentin the discretion ofthetrial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a casehasa substantial and legitimate expectation that he will be deprived ofhis liberty only to the extent determined by the jury in the exercise of its statutory discretion .. . and that liberty interest is one that the Fourteenth Amendmentpreserves againstarbitrary deprivation by the State. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346, citations omitted; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300[capital defendantentitled to have aggravating and mitigating sentencing factors weighed in the manner required by state law; Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 969-971 [giving capital sentencing instruction that is erroneous understate 47 law deprives defendant of due processlife interest].) Here, by prohibiting entry of a guilty plea to a felony punishable by death from a defendant who appears in pro. per., section 1018 afforded appellant a liberty interest in having a jury determinehis guilt or innocence of capital murder;thetrial court’s acceptance of appellant’s guilty plea in violation of section 1018 deprived him ofthat interest, and thus violated his Fourteenth Amendment right to due process. F. Conclusion For the foregoing reasons, the trial court’s erroneous acceptance of appellant’s guilty plea mandates vacating appellant’s plea and admission of the special circumstances, reversing the judgment of conviction on Count | and reversing the sentence of death. 48 II. APPELLANT WAS EXCESSIVELY AND VISIBLY SHACKLEDIN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO PARTICIPATE IN HIS OWN DEFENSE AND TO A FAIR AND RELIABLE PENALTY DETERMINATION A. Introduction Appellant wasvisibly restrained in the courtroom throughouthis trial. Initially, his legs were shackled and both of his wrists were confined in a lock boxattachedto a waist chain. Then the lock box was replaced with three sets of handcuffs, attached in two places to a waist chain, while the leg shackles remained. Additionally, a sheriff's deputy was stationed nearby appellant. The court not only prohibited appellant from having one hand free, but also forbade him from using any writing instrument, even the two-and-a-half-inch golf pencil the sheriff's department had proposed. Although appellant had engaged in no misconductin the courtroom, the trial court cited appellant’s prior criminal record and other assaultive conduct, and his hostile and threatening behavior toward correctionalstaff at the jail and in the holding cell in reaction to the shackling, as a basis for insisting that he be shackledin the courtroom to the greatest possible extent. Appellant was prepared to wear ankle schacklesor other restraints not visible to the jurors. But the multiple restraints appellant was forced to wear throughout his trial were visible and excessive, leaving the jury with the indelible impression that appellant was to be feared. Therestraints exceeded whatthe sheriff’s department found necessary to ensure courtroom security; inhibited appellant’s ability to participate in his own defense; caused prolongedpain, stress and discomfort; and prejudicially bolstered the prosecutor’s argument that, if not sentenced to death, appellant would pose a dangerto others in the future. Appellant’s restraints thus 49 denied him his Fifth and Fourteenth Amendmentrights to due process and a fair trial, his Sixth Amendment right to participate in his own defense,his Eighth and Fourteenth Amendmentright to a reliable sentencing determination, and his correlate state constitutional rights. Reversal of appellant’s death sentence is therefore required. B. Appellant Was Visibly Restrained In the Courtroom In the Jurors’ Presence On October 18, 2005, after the court had accepted appellant’s guilty plea but before the start ofjury selection, Mr. Allen, appellant’s advisory counsel, noted that appellant had been coming to court undertight security conditions. (2 RT 401.) Hestated that visible shackling of appellant’s handsat counsel table wasarticularly problematic. (2 RT 402.) Appellant needed to have his hands free to take notes. (/bid.) The court indicatedit wasfamiliar with United States Supreme Court authority, and the presumption against shackling, particularly when the defendant is proceeding in pro. per. and needs to makenotesto his advisory counsel. (2 RT 401-402.) The court stated, “So if we’re going to do something other than what the U.S. Supreme Court has said then we need a report from the sheriff's department why shackles are necessary.” (2 RT 401.) On October 28, 2005, the Santa Barbara Sheriff's Departmentfiled a motion seeking to have appellant “physically restrained in Court by having both his hands handcuffed within a lockbox, and to a waist chain, and having both ofhis legs attached to leg shackles.” (3 CT 850-863, atp. 850.)'° The motion described incidents when appellant, in custody, had “slipped” a handcuff and assaulted another inmate, attempted to assault '° The motion identifies the sheriff's department as the petitioner and appellant as the respondent. (3 CT 850.) 50 other inmates, threatened and chargedat jail personnel, pulled a razor blade from his waistband and lashed out with it, and blocked the view into his cell, resulting in his forcible “extraction” by a team using a taser gun and pepper spray. (3 CT 851-854.) The motion also cited appellant’s prior convictions for offenses involving violenceor the threat of violence, including incidents involving custodial and emergency personnel, with supporting documentation. (3 CT 853, 863-878.) On November3, 2005, County Counsel Michael Ghizzoni, who was appearing on behalfofthe sheriff's department, handedappellant a copy of the motion;the court suggestedit recess briefly to allow appellant time to read it. Mr. Allen explainedthat it would be very difficult for appellant to read anything in the holdingcell, given that his hands were shackled. (2 RT 467.) Whenthe court asked appellant to raise his hands, Mr. Ghizzoni confirmed appellant’s handswererestrained in a lock box. (2 RT 468.) The court noted that it could “see by observing Mr. Miracle, whohas the lock box on his wrists, that he would not be able to write with the lock box.” (4 RT 468.) Appellant was also wearing a waist chain and leg shackles. (2 RT 467.) Mr. Ghizzoni then informed the court that the sheriff's department had agreed to modify their original request for restraints: “[A]fter working with Mr. Allen and the sheriff’ s department, we believe that with the combination oflegs shackled together and Mr. Miracle’s non writing hand restrained to a waist belt, his writing hand could be free so long as there were additional deputies nearby.” (2 RT 469, see also 487-489.) That arrangement “would provide adequate courtroom security whilestill providing him with his writing hand free.” (2 RT 469.) Mr. Ghizzoni proposedappellantuse a short golf pencil. (/bid.) The court again statedit 51 would “take a break. I want Mr. Miracle, just as a matter of procedure, to read the motion....” (2 RT 469-470.) The court indicated it might be willing to allow appellant to have one hand free if Mr. Ghizzonifelt courtroom security could still be maintained, but was inclined not to, and instead to take more frequent breaks. (/bid.) When proceedings resumed Sergeant Timothy Morgan, head of the jail’s Special Operations Response Team,testified that the “cell extraction” cited in the shackling motion was necessary because appellanthad blocked the view into hiscell, preventing staff from conducting mandatory security checks, and had then refused to leave his cell voluntarily. (2 RT 491-495.) Appellant was taken to a “‘safety cell” and strip searched. (2 RT 496-497.) Atthat point appellant verbally threatened jail personnel. (2 RT 497-498.) A video ofthe incident was played for the court, showingjail personnel firing a pepperball gun and a 50,000-volt taser at appellant to forcibly remove him from his cell. (2 RT 495-496, People’s Ex. 35.) Mr. Ghizzoni then summarized the sheriffs department’s position: appellant would wear leg shackles, andat least his “non writing hand” would be handcuffed to his waist chain. (2 RT 499-500, see also 487-489.) Mr. Ghizzoni noted that attempts to conceal theserestraints from the jury would notlikely succeed, given the “relative positions of the jury box and defendant’s chair” and the fact that appellant had elected to wearjail clothing. (2 RT 499-500.) Mr. Ghizzoni also suggested the court give a cautionary jury instruction regarding appellant’s shackles. (2 RT 500.) Mr. Allen pointed out that the agreementto allow appellant to have his writing hand free amounted to a concession that there was no “manifest necessity” for both of appellant’s hands to be shackled. (/bid.) He addedthat the cell extraction had occurred monthsearlier, that appellant had been 52 uncooperative but had not hurt anyone, and that he had been a gentlemanin court. (2 RT 500-501.) The court prefacedits ruling on the shackling motionby citing People v. Duran (1976) 16 Cal.3d 282 and Deck v. Missouri (2005) 544 U.S. 622, noting the requirement of “manifest need” and the courts’ concern aboutthe visibility of shackles to the jury. (2 RT 502.) The court found restraints were needed, based on appellant’s prior misconductinjail. (2 RT 504.) The court observedthatall of the restraints would be visible to the jurors, and acknowledgedappellant wasasking to have one handfree because he was proceeding in pro. per. and wantedto be able to communicate with advisory counsel. (2 RT 502-503.) The court nonetheless denied appellant’s request to have one hand free and ordered appellant shackled in the manneroriginally requested in the sheriff department’s written motion. (2 RT 504, 511.) The court described the courtroom, noting how close appellant was to others, and expressed its concern about putting a pencil, no matter how small, in appellant’s hands: “So, I’m not going to permit you to use any sort of writing instrument.” (2 RT 504.) The court suggested appellant could communicate with Mr. Allen by whispering. (/bid.) The court offered to take more frequent breaks and arrange for appellant to be brought to court 10 minutes early and for proceedings to adjourn 10 minutesearly. (/did.) Thecourt also indicated it mightrevisit the issue. ([bid.) When Mr. Ghizzoni soughtclarification, the court confirmed that “the original request was that both hands would be handcuffed within the lock box”andreiterated “[t]hat’s what I want in this courtroom.” (2 RT 505.) The court added, “And I wantthe waist chain and I wantthe leg shackles.” (2 RT 506.) 53 Appellant’s suggestion that he wear a stun belt instead, so he could take notes, was rejected, in part because the sheriffs department did not have one. (2 RT 507-510.) The court reiterated its refusal to allow appellant to write: “So, for security purposes I am not going to permit the defendant’s use of his hands for the purpose of writing. I’m just not going to do it. I just don’t see any justification for it. And I think we can address his need to communicate to [Mr. Allen] in other ways.” (2 RT 510.) Jury selection began November 14, 2005. Appellant, Mr. Allen and the prosecutor were introducedto the first panel of prospective jurors, who were then sworn. (3 RT 583-587.) The court gave no admonition or instruction to this panel, or to any other, regarding appellant’s visible shackles. On November 21, 2005, the court again took up the subject of restraints (outside the presence ofthe prospective jurors). (3 RT 746.) Mr. Allen expressed concern that appellant, in pro. per., should be able to “take notesof things that happen, either events in the caseor particularthings said by witnesses.” (3 RT 747.) He asked appellant to stand, so the court could see “that the way Mr. Miracle has been comingto court so far his hands point in opposite directions.” (3 RT 747.) He conveyed appellant’s suggestion that if the lock box were placed on his wrists so that his hands pointed in the same direction, with a bit more slack in the waist chain, he could put both hands on the table and take notes, holding the paper down with one hand and writing with the other. (3 RT 747-748.) Mr. Allen stressed that, given appellant was representing himself, his ability to take notes wasparticularly important. (3 RT 748.) He said he had found some felt-tip pens appellant might use, in the courtroom. (/bid.) He also conveyed appellant’s suggestion that his leg shackles could be fastened to 54 the table, and added that appellant’s waist chain could also be secured that way. (3 RT 749.) The court directed appellantto place his handsonthe table and then asked: “Does anyone havea keyto the lock box? [{]] I’d like to see what you’re proposing in termsof his hands together.” (3 RT 749.) Before anyone could respond Mr. Ghizzoni suggested “just taking a note pad and having it double-back taped to the table.” (3 RT 750.) Mr. Allen said, “That’s fine. As long as he can comfortably lean forward andtake notes.” (Ibid.) When Mr. Ghizzoniexplainedthat the sheriff's department was concernedthatfelt-tip pens were too long, Mr. Allen responded, “I’m happy with golf pencils, that’s fine.” (/bid.) The court, however, was not: “Well, I’m notparticularly happy with a golf pencil, because they are very sharp. They maybeshort, but I think they can be gripped enoughto causefairly significant damage orinjury.” (3 RT 751.) The court proposedthat appellant confer with defense investigator Lynn McLaren, seated at counsel table, and that she take notes. (/bid.) The court again denied appellant’s request to have any writing instrument, whether a golf pencil or a felt-tip pen. (Jbid.) Mr,Allen next explainedthat the lock box wascausing appellantto suffer muscle cramps and expressed concern “about trying to makethat bearable for him in termsofthe passageoftime.” (3 RT 752.) Appellant addedthat it was a “very stiff position” for him to be in for any length of time. (/bid.) The court proposed appellant’s hands might be repositioned periodically, perhaps with appellant’s “right arm on top” in the morning and his “left arm on top”in the afternoon; and when Mr. Ghizzoni suggested that appellant could have the lock box “potentially” removed altogether during breaks outside the courtroom,the court agreed. (3 RT 753.) The 55 court then continued, however: ‘“‘And it may be uncomfortable, butit’s not of a nature that I think warrants, you know,taking the lock box off or —I mean,if it can be, if it can be maneuveredin a slightly different way, or, you know, changedfrom the afternoon to the morning session then that’s: fine. (Sic.)” (Ubid.) Appellant then suggested that securing a chain to an eye bolt on the table, with his handsstill in the lock box, would give him a range of motion of one-and-a-half to two feet, which would allow him to place his hands on the table to write notes and read documents, and would be more comfortable. (3 RT 753-754.) Appellant remindedthe court of the discomfort he was suffering: “Because after one or two hoursin the courtroom I start cramping up, and by the time I go backto the jail my whole bodyis really stiff. Especially my neck.” (3 RT 754.) Appellant explainedthat his neck got stiff because the lock box forced him to lean forward. (/bid.) When appellant acknowledged that standing up helped alleviate the discomfort, the court suggested it might take more frequent breaks, but added that, based on its observations, what appellant was experiencing wasnot “the type of discomfort or pain that rises to the level of a violation of due process or a violation of [appellant’s] legal rights.” (3 RT 754.) The court reiterated that its primary concern was with security and that “the lock box ensures security.” (3 RT 755.) Mr. Ghizzoni then described the table and opined that it was not structurally sound enough for an eye bolt arrangement. (3 RT 755.) The court told appellant it was concerned that it would be worsefor the jurors to see appellant chained to a table, which is “what we do with rabid dogs,” than to see him with “handcuffs on [his] hands and a chain around[his] 56 legs. (3 RT 755-756.)'® The court describe appellant as being ableto “raise both armsat once,” “move[his] feet back together,”“put [his] knees together and separate them,” and thus have“alittle bit of freedom of movement.” (3 RT 756.) On November28, 2005, outside the presence of the prospective jurors, Mr. Allen asked that appellant be permitted to have the lock box removed while he wasin the courthouse holding cell during breaks and recesses. (4 RT 903.) The court said no. (Jbid.) Mr. Allen reminded the court it “had previously indicated that it would accommodate having the lock box off when [appellant] [was] in breaks, because, otherwise,if it’s on for hours and hours and hours it causes muscle cramps.” (4 RT 904.) The court respondedthatit was not necessary to do so “in terms of the representation of himself’ and that“in termsofthe security risk” it would leave the matter to the sheriff's department to decide. (/bid.) The bailiff then explainedthat “the biggest reason” why the lock box could not be removed during beaks wasthat he did not always have a keyforit. ([bid.) A sheriff's sergeant explained they needed threebailiffs to “unlock him and lock him back up again,” which would “hold up proceedings.” (Ibid.) The court concludedthe discussion by saying,“I think that’s your answer, Mr. Allen, Mr. Miracle,” and recessed for lunch. (Jbid.) On November30, 2005, appellant was not present in court when proceedings began. (4 RT 1007.) Deputy Sheriff Jesse Ybarra had informedthe court that when jail personnel had attempted to put restraints on appellantin order to transport him to the courtroom, appellant had gotten '6 At this point appellant was in fact still wearing the lock box,not the triple handcuffs, which he would not begin wearing until December 5, 2005. (See pp. 59-60, post.) 57 “out of control, ... was threatening corrections officers, ... was acting violently [and] . . . was not in a condition to bring into the courtroom.” ({bid.) Appellant had been returnedto the jail. (4 RT 1007-1008.) When the panel of prospective jurors scheduled for voir dire entered the courtroom, they were informed that because of “court emergency” they were to return the following Monday, December5, 2005. (4 RT 1010.) On Thursday, December 1, 2005, the court began the proceedings by warning appellant it had contemplated revoking his pro. per. status and appointing Mr. Allen to represent him, and would do soif appellant engagedin any further misconduct. (4 RT 1014.) The court then proceeded with voir dire (of a different panel of prospective jurors). Later the same day the court returned to the subject of appellant’s disciplinary incident. (5 RT 1188.) The court reiterated that it was inclined to revoke appellant’s pro. per. status. (5 RT 1188-1189.) The court noted Mr. Allen would then “dictate how the case would proceed”ifhe were appointedto represent appellant. (5 RT 1189.) Mr. Allen explained that appellant did not wish to disrupt the proceedings and understoodthe court’s admonitions. (5 RT 1191.) Because ofthe “conditions” previously discussed, appellant had asked to waive his presence for further voir dire, and have Ms. McLarentake notes for use during the peremptory challenges. (5 RT 1191-1192.) When the court asked appellant, ““And the reason why you don’t wantto bepresentis because of the restraints on your arms?” appellant replied, “Yes.” (5 RT 1193.) When the court specified that this was “[b]ecause there’s some discomfort associated with thoserestraints,” appellant again said, “Yes.” The court expressed concern that allowing a pro. per. defendant to waive his presence becauseofrestraints deemed necessary “create[d] a legal 58 issue,” which it decided to defer. (5 RT 1192-1193.) On December 5, 2005, Deputy Ybarratestified about the incident of November30, 2005, resulting in appellant’s failure to appearin court. Deputy Ybarra andanotherofficer were putting restraints on appellant in the courthouse holdingfacility when appellant becameagitated, aggressive and belligerent and insisted the lock box wastoo tight. (5 RT 1202.) He demandedto be taken backto the jail. (Ibid.) When instead he wasplaced in his holdingcell, and discovered the lock box wasnot going to be removed,he again becamehostile and aggressive. (5 RT 1202-1203.) He wasthentransported back to the jail. (5 RT 1203.) Deputy Ybarra also read Correctional Officer Morales’s report into the record,to the effect that appellant had complained that the waist chain was too tight and had become belligerent and hostile when Officer Morales refused to loosen it by more than one link. (5 RT 1204-1205.) At Mr. Ghizzoni’s request, a report of anothercell extraction, conducted November26, 2005,with a taser gun, was also madepart of the record. (5 RT 1206.) The court then returned to the issue of appellant’s handrestraints, noting it had ordered that appellant be allowed to wear long-sleeved shirts and/or wrist bands, subject to any objection by the sheriff's department. (5 RT 1207-1208.) Mr. Ghizzonisaid that the “padding” the court had ordered increased the chancesthat appellant mightslip out of the lock box restraint system. (5 RT 1208.) Mr. Ghizzoniofferedthat, if the court were persuadedthat the lock box was “not appropriate,” based on appellant’s complaints that it was painful, the sheriff's department was preparedto adopt an alternative system ofrestraints, which appellant was then wearing. (5 RT 1209.) Mr. Ghizzoni described this system as consisting of three sets of handcuffs — each of appellant’s hands was cuffed to his waist chain and 59 his two hands were cuffed together — with the same leg shackles and an additional sheriff's deputy stationed “near” appellant. (5 RT 1209-1211.)!’ The court agreed to this system based on Mr. Ghizzoni’s representation that the arrangement was adequate, and with the understanding that they would resume use of the lock box if necessary. (5 RT 1212.) The court also agreed to allow appellant to wear thicker socks, again based onthe sheriff's department’s acquiescence. (5 RT 1212-1213.) Jury selection then resumed. (E.g., 5 RT 1225-1228.) The jury was sworn December6, 2005. (6 RT 1426.) All but one of the twelve jurors (4 RT 1247-1250, 6 RT 1408 [Juror No. 6]) had been voir dired in open court when appellant wasstill visibly restrained and distressed in the lock box arrangement,prior to the switch on December5, 2005, to the triple handcuffs and additional sheriff's deputy (4 RT 837-839, 6 RT 1409 [Juror No. 1]; 4 RT 868-869, 6 RT 1417 [Juror No. 2]; 4 RT 966-967, 6 RT 1406 [Juror No. 3]; 4 RT 906, 6 RT 1405 [Juror No. 4]; 4 RT 1099- 1101, 6 RT 1409 [Juror No. 5]; 4 RT 1153, 6 RT 1410 [Juror No. 7]; 4 RT 874-875, 6 RT 1409 [Juror No.8]; 4 RT 1163-1164, 6 RT 1404 [Juror No. 9]; 4 RT 875-876, 6 RT 1410 [Juror No. 10]; 4 RT 1164-1165, 6 RT 1411 [Juror No. 11] and 4 RT 838-839, 6 RT 1417 [Juror No. 12]). Alternate Juror No. 1, wholater replaced a sitting juror, had also been voir dired while appellant was wearing the lock box. (4 RT 1013.) Appellant wasvisibly shackled with the triple handcuffs, waist chain and leg chains throughout the penalty phase. The jury wasinstructed to disregard appellant’s restraints: “The fact that physical restraints have been '7 Mr. Ghizzoni also stated that “Mr. Miracle, if he... inhales, can raise the waist chain up some inches and have somearc with each hand.” (5 RT 1210.) 60 placed on defendant, Joshua Miracle, must not be considered by you for any purpose. You mustnot speculate as to whyrestraints have been usedin determining the issues in this case. Disregard this matter entirely.” (4 CT 1080; 8 RT 1958.) Cc. Restraints Visible To the Jury Must Be Justified By a State Interest Particular To the Defendant’s Trial, Be Based On a Showing Of Manifest Need and Be the Least Obtrusive Means, Imposed As a Last Resort In Deck v. Missouri the defendant, convicted of murder and sentenced to death, had — like appellant — been shackled in leg irons, handcuffs and a waist chain,at the retrial of the penalty phase ofhistrial. (Deck v. Missouri, supra, 544 U.S.at p. 625.) The Supreme Court found these shackles had not been shownto bejustified and reversed the death sentence, holdingthat “the Fifth and Fourteenth Amendments prohibit the use of physicalrestraints visible to the jury absenta trial court determination,in the exerciseofits discretion, that they are justified by a state interest specific to a particulartrial.” (/d. at p. 629.) The Court identified three “fundamental legal principles” implicated by the unjustified shackling of a criminal defendantat the guilt phase ofa capital trial: the presumption that the defendantis innocent; the defendant’s right to counsel and to participate in one’s own defense without pain, embarrassmentor confusion; and the dignity and decorum of the judicial process itself (Ud. at pp. 630-632; see also Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 747- 748 [‘tin the absence of a compelling needto shackle the defendant during his sentencing hearing, such a practice is inherently prejudicial”].) The Court in Deck next concluded that these considerations “apply with like force to penalty proceedings in capital cases.” (Deck v. Missouri, 61 supra, 544 U.S.at p. 632.) The court reasoned that while application of the second andthird considerations was obvious — the accused’s ability to defend andthe dignity of the judicial process — the first consideration applied as well because the jury’s decision between life and deathis “‘no less important” than its decision between guilt and innocence. (/bid.) “That decision, given the ‘severity’ and ‘finality’ of the sanction, is no less important than the decision about guilt. Monge v. California, 524 U.S. 721, 732, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998) (quoting Gardnerv. Florida, 430 US. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)).” (Ubid.) The Court observedthat “[t]he appearance of the offender during the penalty phase in shackles . . . almost inevitably implies to a jury, as a matter of commonsense, that court authorities consider the offender a dangerto the community — often a statutory aggravator and nearly always a relevant factor in jury decisionmaking ....” (/d. at p: 633.) Because the practice “almost inevitably affects adversely the jury’s perception of the character of the defendant .... it inevitably underminesthe jury’s ability to weigh accurately all relevant considerations — considerations that are often unquantifiable and elusive — whenit determines whether a defendant deserves death.” (/bid.) At the penalty phase of a capitaltrial, where “the Court hasstressed the ‘acute need’ for reliable decisionmaking,”visible restraints “inevitably undermine the jury’s ability to weigh accurately all relevant considerations” and ‘“‘can be a ‘thumb [on] death’sside of the scale.’” (/d. at pp. 632-633, quoting Monge v. California, supra, 524 U.S. at p. 732 and Sochorv. Florida (1992) 504 U.S. 527, 532.) Therefore, a trial judge may only order that a capital defendant be shackledto take into account “special circumstances, including security concerns,” and then only based on a “case specific” determination that “reflect[s}particular concerns, 62 say, special security needsor escaperisks, related to the defendantontrial.” (Ibid.) Even before the Supreme Court clarified the law,in Deck, the Ninth Circuit had acknowledgedtheinherently prejudicial effect of shackling a criminal defendantat the sentencing phase ofa capitaltrial. In Duckett v. Godinez, supra, 67 F.3d 734, the court noted that shackling conveyed future dangerousness: In the penalty phase ofa capitaltrial, the jury knowsthe defendantis a convicted felon. But the extent to which he continues to be dangerousis a central issue the jury must decide in determining his sentence. “[N]otall convicted felons are so dangerous andviolent that they must be brought to court and kept in handcuffs and leg irons.” Lemonsv. Skidmore [7th Cir. 1993] 985 F.2d [354], 357. Unlike prison clothes, physical restraints may create the impression in the mindsofthe jury that the court believes the defendantis a particularly dangerous and violent person. (Id. at p. 748.) The court noted that due process requiresa trial court to engage in a twostep process before shackling a defendant at trial. First, the court must be persuaded by “compelling circumstances”that some measure of shackling is needed to maintain courtroom security; and, second,the court mustpursue “the least restrictive alternative” before resorting to shackles. (/bid., citing Jones v. Meyer (9th Cir. 1990) 899 F.2d 883, 885, and quoting Spain v. Rushen (9th Cir. 1989) 883 F.2d 712, 720-721.) This Court has also long recognized the inherently prejudicial effect of requiring a criminal defendantto wear handcuffs, shackles, leg irons or other physicalrestraints at trial. In People v. Harrington (1871) 42 Cal. 165 the Court reasonedthat “any order or action of the Court which, without evident necessity, imposes physical burdens,pains and restraints upon a prisoner during the progress ofhistrial, inevitably tends to confuse and 63 embarrass his mentalfaculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense ....” (/d. at p. 168.) Morerecently, in People v. Duran, supra, 16 Cal.3d 282, this Court reaffirmed that the “possible prejudice in the mindsofthe jurors, the affront to humandignity, the disrespect for the entire judicial system whichis incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand, all support our continued adherence to the Harrington rule.” (d. at p. 290.) This Court also noted that the Supreme Court “ha[d] acknowledged that physical restraints should be used as a last resort not only because of the prejudice created in the jurors’ minds, but also because ‘the use ofthis technique is itself something of an affront to the very dignity and decorum ofjudicial proceedings that the judge is seeking to uphold.’” (/bid., quoting Jllinois v. Allen (1970) 397 U.S. 337, 344.) Accordingly, this Court has held that the imposition of restraints must be based on a showing of manifest need, supported by evidence of “violence or a threat of violence or other nonconforming conduct” (People v. Duran, supra, 16 Cal.3d at pp. 290- 291, citing Kennedy v. Cardwell (6th Cir. 1973) 487 F.2d 101, 102); and that “where physical restraints are used thoserestraints should be as unobtrusiveas possible, although as effective as necessary under the circumstances” (/d. at p. 291). The imposition of visible physical restraints otherwise constitutes an abuse ofdiscretion. (/bid.) D. The Restraints Imposed On Appellant Were Unduly Restrictive, Painful and Excessive The restraints appellant was made to wear— first the lock box confining both wrists, attached to a waist chain, coupled with the leg shackles, andlater the triple handcuffs, waist chain and leg shackles — were 64 visible and excessive. Although appellant had acted out in custody outside the courtroom, he had never engagedin any threatening, emotional or disrespectful misconduct or outbursts in the courtroom, where he appeared in pro. per. (See 5 RT 1190-1191.) Nor was there any evidence appellant posed flight or escape risk. Therestraints the court imposed were also excessivein that they were morerestrictive and onerous than whatthe sheriff's department deemedsufficient to address all security concerns. (See Deck v. Missouri, supra, 544 U.S.at p. 633.) Although in its written motion the sheriff's departmentrequestedthat, in addition to leg shackles, appellant be restrained with a lock box and waist chain, Mr. Ghizzonilater informed the court that allowing appellant to have his writing handfree would be- acceptable, and suggested appellant coulduse a golf pencil to write on a pad of paperaffixed to counsel table. (2 RT 469-470, 3 RT 750.) Yet the court refused to accept even this reasonable accommodation; both of appellant’s hands remainedrestrained throughoutthetrial, initially in the lock box,then in the triple handcuffs, and at all times with a waist chain attached. While somephysical restraints might have been appropriate, there was no “manifest need” to restrain appellant to such an extreme extent. The court thus failed to use the least restrictive means necessary in orderto ensure courtroom security. (People v. Duran, supra, 16 Cal.3d at p. 290, quoting Illinois v. Allen, supra, 397 U.S.at p. 344.) Restraining appellant’s hands and wrists in the courtroom tothe extent the court did also interfered with appellant’s ability to participate in his own defense. (Deck v. Missouri, supra, 544 U.S. pp. 630-632.) Particularly because he was proceeding in pro.per., his need to be sufficiently free of restraints was paramountandis one ofthe factors 65 required to be taken into accountin the case-specific assessment of the need for restraints. (See People v. Burnett (1980) 111 Cal.App.3d 661, 669 [whetheror not visible to the jury, shackles impermissibly prevented pro. per. defendant from leaving his chair]; Deck v. Missouri, supra, 544 U.S.at p. 629.) Thetrial court repeatedly informed the jury that appellant was representing himself; yet visibly restrained him in a mannerthat prevented him from taking notes or communicating silently in writing with his advisory counsel — the court having denied his request to have one hand free to use a short golf pencil — and from grasping documents so he could read them. (2 RT 468 [court acknowledges that appellant cannot write when wearing lock box], 3 RT 750-751 [court declines to allow appellantto use golf pencil]; 2 RT 467 [appellant unable to read documents in holding cell because of wrist restraints].) The importance of appellant’s ability to communicate silently with Mr. Allen is underscored by the trial court’s own description of the “small, relatively small courtroom,” with appellant seated “in very close proximity” to a numberof courtroom personnel. (2 RT 504.) Appellant thus had reason to believe his privileged, oral communications with Mr. Allen or Ms. McLaren would be overheard. With respect to keeping appellant shackled even in the courthouse holding cell, the court erred not merely in keeping appellant excessively restrained where courtroom security was notat issue, but in allowing law enforcementstaffing and logistical constraints to dictate the nature and extent of appellant’s restraints. (People v. Stevens (2009) 47 Cal.4th 625, 642[trial court may not defer decisionmaking authority as to the need for particular restraints to law enforcementofficers, but must “come to its own conclusion” about the need for particular restraints rather than “‘abdicate 66 control to law enforcement”].) When Mr, Allen remindedthe court thatit hadsaid it might allow appellant to be free of restraints during breaks,the court replied, “I’m goingto leave that up to the Sheriff's Department.” (4 RT 904.) When a deputy explained that they did not always have a key for the lock box, and that they needed three deputies to take appellant’s restraints off and put them back on again, the court dismissed the matter without further inquiry, saying, as noted,“I think that’s your answer, Mr. Allen, Mr. Miracle.” (/bid.) The court took no steps to direct law enforcementpersonnelto obtain a key for use during appellant’s trial, for example; or to assess whether three officers in fact were needed to remove andreattach appellant’s restraints in a holding cell; or to determine whether additional personnel could be brought in on an as needed basis to assist with that task; or to inquire whetherappellant might be released from wrist restraints in the holding cell at least once or twice a day,if not at every break. The court thus erred in allowed appellant’s right to participate effectively in his own defense — by reviewing documents in the holding cell, and bygetting temporary relief from the pain,stress and discomfort the court knew the restraints caused — to give way to unexaminedlogistical and staffing concerns. That the restraints the court insisted appellant wearall day every day caused appellant pain and discomfort is itself a factor rendering the restraints excessive.'® Appellant was in the most severe pain during the '8 Appellant appeared in court wearing the lock box, waist chain and ankle shackles for five days ofvoir dire. (3 RT 586 [November14, 2005]; 3 RT 676 [November16, 2005]; 3 RT 732 [November 21, 2005]; 4 RT 789 [November28, 2005]; 4 RT 1013 [December1, 2005].) He appeared in the triple handcuffs, affixed to a waist chain, and leg shackles, with the (continued...) 67 critical stage of voir dire. Early on Mr. Allen advised the court that the lock box “leads to muscle crampsafter a couple of hours” and expressed his concern about “trying to make that bearable,” given appellant would be shackled for a numberof hours. (3 RT 752.) Appellant himself explained that the lock box forced him to remain in “a very stiff position,” becauseit caused him to lean forward continuously, and that by the end ofthe day his whole body wasstiff, especially his neck. (3 RT 752-754.) Although the court suggested they could take more frequent breaks so the lock box could be removedperiodically (2 RT 469), in fact, as noted, that did not occur. (4 RT 904 [appellant remains shackled whenin the holding ceil]; 2 RT 467 [appellant cannot read documents in the holding cell because his hands are shackled]; 5 RT 1191 [Mr. Allen’s reference to “the length of the day and the conditions that [appellant]’s in].) The pain from the lock box was such that appellant even contemplated waiving his presence during jury selection. (5 RT 1191-1192.) Although near the end ofjury selection the court agreed to allow appellant to wearthe triple handcuffs, affixed to.a waist chain, in lieu of the lock box, the alternate arrangementdid little to alter the impression of appellant as incorrigibly dangerous and afforded him only marginally more freedom of movement. (5 RT 1210.) Further, appellant wasstill not able to write, having categorically been denied access to even a two-and-one-half '§ (...continued) additional deputy stationed near him, for eight days, commencing December 5, 2005, the last day of voir dire and for the duration of the penalty trial. (5 RT 1200 [December 5, 2005]; 6 RT 1386 [December 6, 2005]; 6 RT 1473 [December 7, 2005]; 6 RT 1560 [December8, 2005]; 7 RT 1675 [December 9, 2005]; 8 RT 1818 [December 15, 2005]; 8 RT 1918 [December 16, 2005], 8 RT 1963 [December 19, 2005].) 68 inch golf pencil. Finally, the “dignity and decorum ofthe judicial process” necessarily are diminished whena self-represented capital defendant is forced to appear shackledto the extreme extent appellant was before the jury that would decide whether he should be sentenced to death. (Deck v. Missouri, supra, 544 US.at p. 632.) E. The Court’s Excessive Shackling Of Appellant Was Prejudicial Visible shackling is “‘inherently prejudicial.” (Deck v. Missouri, supra, 544 U.S.at p. 635, citing Holbrook v. Flynn (1986) 475 U.S. 560, 568; see also People v. Hernandez (2011) 51 Cal.4th 733, 745-746 [“the high court has held that shackling is an inherently prejudicial practice”].) “Thus, where a court, without adequate justification, orders the defendantto wear shackles that will be seen bythe jury, the defendant neednot demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubtthat the [shackling] error complained ofdid not contribute to the verdict obtained.’” (Deckv. Missouri, supra, 544 U.S.at p. 635, quoting Chapmanv. California (1967) 386 U.S. 18, 24; People v. Hernandez, supra, 51 Cal.4th at p. 745 [acknowledging that Deck holds that criminal defendants have a due processrightto be free from inherently prejudicial security measures such as shackling, and that the unjustified imposition of such measuresis an error ofconstitutional dimension]; People v. Miller (2009) 175 Cal.App.4th 1109, 1115, citing People v. McDaniel (2008) 159 Cal.App.4th 736, 742 [applying Chapman where shackles presumedto bevisible to the jury].) Here the state cannot meetit’s burden to showthat appellant’s visible and excessive shackling did not contribute to his sentence of death. 69 First, as noted, the lock box wasvisible during the voir dire of 11 of the original 12 jurors and one of the alternate jurors who ultimately were swornto try the case, and the triple handcuffs, which replaced the lock box, and the additional deputy sheriff stationed near appellant for the duration of the trial, were visible to the 12 sitting jurors who ultimately voted to sentence appellant to death. The excessive visible shackling alone establishes prejudice. (See, e.g., Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633, 637 [prejudice established in part by the fact that unjustified shackles were visible to the jurors]; Elledge v. Dugger (11th Cir. 1987) 823 F.2d 1439, 1450-1452 [the appearance in shackles of a defendant who has already been convicted of a terrible crime may be so inherently prejudicial as to deny him fair capital sentencing proceeding].) Second, the various restraints appellant was made to wear caused him pain, stress and discomfort. (3 RT 752-753 ;5 RT 1191-1192; 7 RT 1769.) The Ninth Circuit has held that “evidence of physical and emotional pain” may demonstrate “a strong likelihood of prejudice.” (Rhoden v. Rowland, supra, 172 F.3d at p. 637, citing Holbrook v. Flynn, supra, 475 U.S.at p. 568.) Third, although appellant had pled guilty and admitted the special circumstances, the case against him at the penalty phase, presented to the jury as the “circumstances of the crime” (Pen. Code, § 190.3, factor (a)), left ample room to question his individual, as well as relative, culpability of capital murder. Notably, the prosecutor repeatedly told the jury that co- defendant Ibarra was equally culpable. Thus, for example, in his opening statement the prosecutortold the jury that appellant“and a man named Robert Ibarra... murdered Eli Silva;” that it was Ibarra who knew Silva and that they “didn’t particularly care for one another;”that appellant and 70 Ibarra were talking about dealing with “rats” in Santa Barbara; that “Mr. Ibarra and Mr. Miracle wanted more crystal meth;” that Ibarra and Silva had had “a falling out”; that Ibarra pulled Silva into the room when he came to the door; and that “Miracle and Ibarra stabbed Eli Silva 48 times.” (6 RT 1582, 1582-1583, 1584, 1585, 1587, 1588,italics added.) In his closing argumentthe prosecutorthen reiterated that appellant and Jbarra “wanted” to kill Silva and “plannedit out.” (8 RT 1976.) Robert Galindo, the prosecution’s principal witness, confirmed that it was Ibarra who knewSilva, and harbored animosity toward him (7 RT 1627); that it was Ibarra wholeft the apartment and returned with the duffle bag containingplastic sheeting, duct tape anda tool resembling a hatchet (7 RT 1641-1642; 1750-1751); that Ibarra was “wired,” “antsy” and “hyper” (7 RT 1644);that “Tbarra wanted to get some drugs because he just got his check” (7 RT 1647); that Ibarra was getting “pushy” and repeatedly urged him to call Silva to ask him to bring drugs to the apartment (7 RT 1653, 1650-1652, 1654, 1656, 1657); that Ibarra pulled Silva into the room (7 RT 1660, 1671, 1677); that Ibarra then threatenedto kill whoever might next cometo the door, including Phillip (Galindo’s brother’s partner) (7 RT 1670, 1689); and that oneofthe two knives ostensibly used in the homicide was never recovered (7 RT 1682). Galindo did not witness the homicide, and the prosecution did not call anyone whodid. That one or more jurors harbored doubtas to the extent of appellant’s legal and moral responsibility for first degree capital murderis further evidenced by the note the jury sent to the court during deliberations. Amongthe questions the jurors asked were: “1. Is there a doc signed by Mr. Miracle that says he wasthe one who usedthe knife to kill Mr. Silva?” and “6, What happens whenyouuse crystal meth? How long doesit 71 impact a person? Doesit agitate someone? Would a person know what they’re doing while underits influence?” (4 CT 1114.)'° Although the jury’s verdict was received before the court could respond to the note, the jurors’ questions underscore that a death sentence wasnot a forgone conclusion. (Cf. People v. Burnett, supra, 111 Cal.App.3d at p. 669 [visible 'S The jurors’ note, in full, reads as follows: Questions: l. (4 CT 1113-1115.) Is there a doc signed by Mr. Miracle that says he was the one whousedthe knife to kill Mr. Silva? What day was Mr. Miracle apprehended and where (city)? Can you give us Mr. Miracle’s age and the yearhe first started disobeying the laws? What wasthe offense? Can you give us some personal background on Mr. Miracle (family life, schooling, his children and wife, if any, family support system)? Where does Mr. [Galindo]... work? What type of work does he do? Was he employedat the time of the murder? What happens whenyouusecrystal meth? How long does it impact a person? Doesit agitate someone . Would a person know what they’re doing while under its influence? You showedvideo of Mr. Ibarra in a grocery (?) store picking up various things. Were the items important to this case? Other than Gil stating it was Mr. Ibarra was there any other importanceto this video? What holds more weight— what a witness states under oath or what a witness signs as to what happenedto be the truth? 72 physical restraints not harmless even where evidenceof guilt was strong].) Most important, appellant’s appearance in shackles, which “almost inevitably implies to a jury, as a matter of commonsense,that court authorities consider the offender a danger to the community,” credited the prosecutor’s argumentthat appellant should be sentenced to death because he would posebe a dangerto othersif allowed to live. (Deck v. Missouri, supra, 544 U.S.at p. 633; Rhoden v. Rowland, supra, 172 F.3d at p. 637 (shackling “essentially branded Rhodenashavinga violent nature in a case where his propensity for violence wasthe crucial issue”].) “[T]he extentto which[the defendant] continues to be dangerousis a central issue the jury must decide in determining his sentence.” (Duckett v. Godinez, supra, 67 F.3d at p. 748.) Here, after alluding to the incident when appellant threatenedthe officers who werereattachingthe restraints that appellant found sopainful, the prosecutor asked, “Whois next?” (8 RT 1990.) The prosecutor then argued explicitly that appellant would pose a threat to anyone he camein contact with in prison — professionals, correctional staff and inmates — if allowedto live: _... And there’s just no evidenceat all of Mr. Miracle ceasing to be dangerous when he’s lockedup. Whenwetalk about who’s next, it’s not speculating aboutliterally who’s next, but just consider the peoplethat Mr. Miracle will be in contact with for the rest of his life if his life is spent in prison, the entirety of it, every doctor that has to examine him, every dentist, every nurse, every corrections officer that has to transport him to the shower and back, out to the yard for exercise, every one of those people is in, I would argue, grave danger at any time, no matter how careful they are or usedtothe institution they are. And that’s 73 forgetting entirely other inmates, who you may or may not have sympathyfor. (8 RT 1997-1998, italics added.) In his concluding remarks the prosecutor reiterated his theme of future dangerousness: “Who’s next? That’s the question that just keeps coming back to me, who’s next? [§] Ladies and gentlemen, you have the powerto say no oneelse.” (8 RT 200-2001.) Appellant’s presence in shackles graphically brought home the prosecutor’s message that appellant would pose a continuing threat of violence, in the prison “community.” Appellant’s visible shackles, conveying future dangerousness, also lessened the mitigating weight appellant’s unconditional guilty plea had, in and of itself, regardless of appellant’s election not to argue the point, as an expression of appellant’s acceptance of responsibility. The fact that appellant chose to appear in his prison clothes did not diminish the prejudicial effect of his shackles. The jurors knew he had been convicted, by plea, of first degree murder and therefore would minimally be sentencedto life imprisonment without possibility of parole; thus they would have expected him to be in custody. In any event, it is not the fact that appellant was in custody that made his shackles prejudicial. The court’s observation in People v. McDaniel is analogous andinstructive: It is not the fact that the defendantis a prison inmate that makes shackling prejudicial; rather, it is the jurors’ visual, psychological, and emotional response to seeing a defendant so physically restrained and differentiated from everyone else and the natural tendency to wonder whetherthe defendantis a violent and dangerous person, and worry aboutsafety. (People v. McDaniel, supra, 159 Cal.App.4th at p. 746 [prejudicial abuse of discretion to allow defendant, a prison inmate, to be shackled with only one hand free, absent prior determination of necessity or justification]; see also 74 People v. Miller, supra, 175 Cal.App.4th at pp. 1116-1117.) Finally, that the jurors were instructed to disregard appellant’s restraints does not render his excessive shackling harmless. (See People v. Soukomlane (2008) 162 Cal.App.4th 214, 231 [court rejects argumentthat becausethetrial court gave a shackling instruction any inferences the jurors may have drawn about defendanton learning he was restrained presumptively had nobearing on their decision to convict].) Here, given the high visibility and extent of appellant’s restraints, and the vigor of the prosecutor’s future dangerousness argument, the jurors cannot reasonably be expected to have ignored appellant’s shackles or the message they conveyed. F. Conclusion Appellant wasvisibly and excessively shackled to an extent that exceeded eventhe sheriff department’s assessmentof what wasrequired to ensure courtroom security. Though proceeding in pro. per., he was denied the meansto take notes for himself or to communicatein writing to his advisory counsel, or to review documents. Theshackles, which appellant was forced to wear even in the courthouse holding cell, caused pain, stress and discomfort. Appellant’s shackling made him lookthe part of the dangerouscriminal who,the prosecutorargued, should be sentenced to death lest he harm others in the future. Because under these circumstances it cannotbe said beyond a reasonable doubtthat the appellant’s excessive shackling did not contribute to the verdict, his death sentence must be reversed. (Deck v. Missouri, supra, 544 U.S.at p. 635; Chapmanv. California, supra, 386 U.S.at p. 24; People v. Hernandez, supra, 51 Cal.4th at p. 735.) 75 Il. CALIFORNIA’S DEATH PENALTY STATUTE AND CALJIC INSTRUCTIONS, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATE THE UNITED STATES CONSTITUTION Manyfeatures of California’s capital sentencing schemeviolate the United States Constitution. However, this Court has consistently rejected cogently phrased arguments pointing out these deficiencies. In People v. Schmeck (2005) 37 Cal.4th 240, this Court held that what it considered to be “routine” challenges to California’s punishment scheme would be deemed “fairly presented” for purposes of federal review “even when the defendant does no more than(i) identify the claim in the context of the facts, (ii) note that we previously have rejected the sameora similar claim in a prior decision, and (iii) ask us to reconsider that decision.” (/d. at pp. 303-304.) In light of this Court’s directive in Schmeck, appellant briefly ~ presents the following challenges to California’s sentencing schemein order to urge reconsideration of these claims and to preserve them for federal review. Should the Court decide to reconsider any of these claims, appellant requests leave to present supplementalbriefing. A. Penal Code Section 190.2 Is Impermissibly Broad To pass constitutional muster, a death penalty law must provide a meaningful basis for distinguishing the few murder cases in which the death penaity is imposed from the manycases in whichit is not. (Peopie v. Edelbacher (1989) 47 Cal.3d 983, 1023, citing Furman v. Georgia (1972) 408 U.S. 238, 313 (cone. opn. of White, J.).) Meeting this criterion requires a state to genuinely narrow, by rational and objectivecriteria, the class of murdererseligible for the death penalty. (Zant v. Stephens (1983) 462 U.S. 76 862, 878.) California’s capital sentencing scheme does not meaningfully narrow the pool of murdererseligible for the death penalty. At the time of the offense charged against appellant, Penal Code section 190.2 listed 21 special circumstances whichin total made 32 factually distinct murders eligible for the death penalty. Given this large numberofspecial circumstances, California’s statutory schemefailed to identify the few cases in which the death penalty might have been appropriate, and instead made almost everyone convicted of first degree murdereligible for the death penalty. This Court has routinely rejected these challengesto the statute’s lack of meaningful narrowing. (Peoplev. Stanley (1995) 10 Cal.4th 764, 842-843.) This Court should reconsider Stanley andstrike down Penal Code section 190.2 andthe current statutory scheme becausethey are so over-inclusive as to guarantee the arbitrary imposition of the death penalty in violation ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. B. The Broad Application Of Penal Code Section 190.3(a) Violated Appellant’s Constitutional Rights Penal Code section 190.3, factor (a), directed appellant’s jurors to consider in aggravation the “circumstancesofthe crime.” (4 CT 1067, 6 RT 1577; CALJIC No. 8.85.) In capital cases throughout California prosecutors haveurgedjuries to weigh in aggravation almostevery conceivable circumstance of a crime, even those that, from case to case, are starkly opposite. In addition, prosecutors use factor (a) to embracethe entire spectrum offactual circumstancesinevitably present in any homicide; facts such as the age ofthe victim or the defendant, the methodofkilling, the alleged motive forthe killing, the location of the killing, and the impact of the crime on the victim’s survivingrelatives. 77 Here, the prosecutor, in his closing argument, remindedthe jurors that Silva had been stabbed, multiple times (8 RT 1968, 1975, 1980, 1995, 1999); that appellant was a street gang member (8 RT, 1974, 1978, 1981, 1988, 1996); that appellant committed the crime with a co-defendant, who drove the car whentheyleft the scene (8 RT 1973, 1977, 1992); that appellant would be dangerousin the future (8 RT 1998-1999, 2000-2001); and that Silva had three children (8 RT 2000). This Court has never applied any limiting construction to factor(a). (People v. Blair, supra, 36 Cal.4th at p. 749 [circumstances of crime”not required to have spatial or temporal connection to crime].) As a result, the concept of “aggravating factor” has been applied in such a random and arbitrary manner that almost every feature of every murder can be and has been characterized by prosecutors as “aggravating.” As such, California’s capital sentencing schemeviolates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution because it permits the jurors to assess death upon nobasis other than that the particular set of circumstances surrounding the murder were enough in themselves, without some narrowingprinciple, to warrant the imposition of death. (See Maynardv. Cartwright (1988) 486 U.S. 356, 363; but see Tuilaepav. California (1994) 512 U.S. 967, 987-988 [factor (a) survived facial challenge at time of decision].) Appellant is aware this Court has repeatedly rejected the claim that permitting the jurors to consider the “circumstances of the crime” within the meaning of Penal Code section 190.3, factor (a), results in the arbitrary and capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th 595, 641, disapproved on another groundin People v. Williams (2010) 49 Cal.4th 405, 459; People v. Brown (2004) 33 Cal.4th 382, 401.) 78 Appellant urges the Court to reconsider this holding. C. California’s Death Penalty Statute and the CALJIC Instructions Given In This Case Failed To Set Forth the Appropriate Burden Of Proof and the Requirement Of Unanimity 1. Appellant’s Death SentenceIs Unconstitutional Because It Was Not Premised On Findings Made Beyond a Reasonable Doubt California law does not require, and at the time of the offense charged against appellant did not require, that a reasonable doubt standard be used during anypart of the penalty phase, except as to proofofprior criminality. (CALJIC Nos.8.86 and 8.87; People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fairbank (1997) 16 Cal.4th 1223, 1255; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are moral and not “susceptible to a burden-of-proof quantification”].) In conformity with this standard, the jurors in this case were not told they had to find beyonda reasonable doubt either the existence of any aggravating circumstances or that the aggravating circumstances outweighed the mitigating circumstances, before determining whetheror not to impose a death sentence. (4 CT 1072-1073; 6 RT 1580-1581 [CALJIC No. 8.88].) Apprendi v. New Jersey (2000) 530 U.S.466, 478, Blakely v. Washington (2004) 542 U.S. 296, 303-305, Ring v. Arizona (2002) 536 U.S. $84, 604 and Cunningham v. California (2007) 549 U.S. 270, now require that any fact used to support an increased sentence (other than a prior conviction) be submitted to the jurors and proved beyond a reasonable doubt. In order to impose the death penalty in this case, appellant’s jurors hadto first make several factual findings: (1) that aggravating circumstances were present; (2) that the aggravating circumstances 79 outweighed the mitigating circumstances; and(3) that the aggravating circumstances were so substantial as to make death an appropriate punishment. (4 CT 1072-1073; 6 RT 1580-1581 [CALJIC No.8.88].) Becausethese additional findings were required before the jurors could impose the death sentence, Apprendi, Blakely, Ring, and Cunningham require that each of these facts be found, by the jury, to have been established beyond a reasonable doubt. The court failed to so instruct the jurors in this case and thusfailed to explain the general principles of law “necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on another ground by Peoplev. Breverman (1998) 19 Cal.4th 142, 149; see Carter v. Kentucky (1981) 450 USS. 288, 302.) . Appellant is aware this Court has held that the imposition of the death penalty does not constitute an increased sentence within the meaning ofApprendi (People v. Anderson, supra, 25 Cal.4th at p. 589, fn. 14), and does not require factual findings (People v. Griffin (2004) 33 Cal.4th 536, 595, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 819-821). The Court has rejected the argument that Apprendi and Ring impose a reasonable doubt standard on California’s penalty phase proceedings. (People v. Prieto (2003) 30 Cal.4th 226, 263.) Appellant urges the Court to reconsiderits holding in Prieto so that California’s death penalty scheme will comport with the principles set forth in Apprendi, Ring, Blakely, and Cunningham. Setting aside the applicability of the Sixth Amendmentto California’s penalty phase proceedings, appellant also contends due process and the prohibition against cruel and unusual punishment mandatethat the jurors in a capital case be convinced beyonda reasonable doubtnotonly 80 that the factual bases for its decision are true, but that death is the appropriate sentence. This Court has previously rejected the claim that either the Fourteenth Amendmentor the Eighth Amendmentrequires the jurors beinstructed that to return a death sentence it must find beyond a reasonable doubtthat the aggravating circumstances outweigh the mitigating circumstancesandthat death is the appropriate penalty. (People v. Blair, supra, 36 Cal.4th at p. 753.) Appellant requests the Court reconsiderthis holding. 2. Some Burden Of Proof Should Have Been Required, Or the Jurors Should Have Been Instructed That There Was No Burden Of Proof Evidence Code section 520, which providesthat the prosecution always bears the burden of proofin a criminal case, creates a legitimate expectation as to the way a criminal prosecutionwill be decided understate law, andappellantis therefore constitutionally entitled under the Fourteenth Amendmentto the burden ofproofprovidedfor by that statute. (Cf. Hicks v. Oklahoma,supra, 447 U.S.at p. 346 [defendantconstitutionally entitled to procedural protections afforded by state law].) Accordingly, appellant’s jurors should have been instructed, but were not, that the state had the burden ofpersuasion regarding the existence of any andall circumstances in aggravation, the determination whether aggravating circumstances outweighed mitigating circumstances, and the appropriateness of the death penalty, and that it was presumedlife without parole was the appropriate sentence. CALJIC Nos. 8.85 and 8.88,the instructions given in this case (4 CT 1067-1077, 1072-1073; 6 RT 1576-1578, 1580-1581) failed to provide the jurors with the guidance legally necessary for the imposition of the death 81 penalty to meet constitutional minimum standards, in violation ofthe Sixth, Eighth, and Fourteenth Amendments. This Court has held capital sentencing is not susceptible to burdens of proof or persuasion because the exercise is largely moral and normative, and thus unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) This Court has also rejected any instruction on the presumptionoflife. (People v. Arias (1996) 13 Cal.4th 92, 190.) Appellantis entitled to jury instructions that comport with the federal constitution and therefore urges the Court to reconsiderits decisions in Lenart and Arias. | 3. Appellant’s Death Verdict Was Not Premised On Unanimous Jury Findings Regarding Aggravating, Circumstances It violates the Sixth, Eighth, and Fourteenth Amendments to impose a death sentence whenthere is no assurance the jury, or even a majority of the jurors, ever found a single set of aggravating circumstancesthat rendered death the appropriate penalty. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina (1976) 428 U.S. 280, 305.) Nonetheless, this Court “held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749.) The Court reaffirmed this holding after the decision in Ring v. Arizona, supra, 536 U.S. 584. (See People v. Prieto, supra, 30 Cal.4th at p. 275.) Appellant asserts that Prieto was incorrectly decided and that application of the Ring reasoning mandates jury unanimity underthe overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity... is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury’s ultimate 82 decision will reflect the conscience of the community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy,J.).) The failure to require appellant’s jurors to unanimously find any and all aggravating circumstances were establishedalso violated the equal protection clause of the Fourteenth Amendment. In California, when a criminal defendant has been charged with certain specialallegationsthat mayincrease the severity of his sentence, the jurors must rendera separate, unanimousverdict on the truth of such allegations. (See, e.g., Pen. Code, § 1158a.) Because capital defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Mongev. California, supra, 524 U.S.at p. 732; Harmelin v. Michigan (1991) 501 USS. 957, 994), and since providing moreprotection to a noncapital defendantthan to a capital defendant violates the equal protection clause of the Fourteenth Amendment(see, e.g., Myersv. Yist (9th Cir. 1990) 897 F.2d 417, 421),it followsthat unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirementto an enhancementfinding that may carry only a maximum punishment ofone year in prison, but notto a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764), by its inequity violates the equal protection clause of the Fourteenth Amendment and by its irrationality violates both the Fourteenth Amendmentdue process clause and Eighth Amendmentcrueland unusual punishmentclause, as well as the Sixth Amendment’s guarantee ofa trial by jury. Appellant asks the Court to reconsider Taylor and Prieto and require jury unanimity as mandated by the federal constitution. 83 D. California’s Death Penalty Statute and the CALJIC Instructions Given In This Case On Mitigating and Aggravating Circumstances Violated Appellant’s Constitutional Rights 1. TheInstructions Given Failed To Inform the Jurors That the Central Sentencing Determination Is Whether Death Is the Appropriate Penalty The ultimate question inthe penalty phase of a capital case is whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) Yet, CALJIC No. 8.88 did not makethis clear to jurors; rather it instructs them they can return a death verdictif the aggravating evidence “warrants” death rather than life without parole. These determinations are not the same. (4 CT 1072-1073; 6 RT 1580- 1581.) The Court has previously rejected this challenge to CALJIC No. 8.88. (People v. Arias, supra, \3 Cal.4th at p. 171.) If this Court rejects the argument set forth in ArgumentIII.B., above, appellant urges this Court to reconsider that ruling. 2. The Use Of Adjectives In the List Of Potential Mitigating CircumstancesIs Impermissibly Restrictive The inclusion in the list of potential mitigating circumstances of such adjectives as “extreme” and “substantial” (see CALJIC No. 8.85; Pen. Code, § 190.3, subd. (g); 4 CT 1067-1068) impededthe jurors’ consideration of mitigation, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367, 384; Locket v. Ohio (1978) 438 U.S. 586, 604.) Appellant is aware the Court has rejected this very argument (People v. Alveoli (2006) 38 Cal.4th 491, 614), but urges reconsideration. 84 3. The Instructions Caused the Penalty Determination To Turn On An Impermissibly Vague and Ambiguous Standard The question whether to imposethe death penalty upon appellant hinged on whetherthe jurors were “persuaded that the aggravating circumstances [were] so substantial in comparison with the mitigating circumstances that it warranted] death insteadoflife without parole.” (4 CT 1072-1073; 6 RT 1580-1581 [CALJIC No.8.88].) The phrase “so substantial” is an impermissibly broad phrase that does not channelor limit the sentence’s discretion in a manner sufficient to minimizethe risk of arbitrary and capricious sentencing. Consequently, this instruction violated the Eighth and Fourteenth Amendments becauseit creates a standard thatis vague and directionless. (See Maynard v. Cartwright, supra, 486 US.at p. 362.) This Court has found the use ofthis phrase does not render the instruction constitutionally deficient. (People v. Beaux (1991) 1 Cal.4th 281, 316, fn. 14.) Appellant requests this Court reconsider that opinion. 4, The Jurors Should Not Have Been Instructed On Inapplicable Sentencing Factors Manyofthe sentencing factors set forth in CALJIC No. 8.85 were inapplicable to appellant’s case because no evidence was presented to support them — specifically, factor (d) (“Whetheror not the offense was committed while the defendant was underthe influence of extreme mental or emotionaldisturbance”), factor (e) (“Whetheror not the victim was a participant in the defendant’s homicidal conductor consented to the homicidalact”), and factor (h) (“Whetheror notat the timeof the offense the capacity of the defendantto appreciate the criminality of his conduct or 85 to conform his conduct to the requirements of law was impaired asa result of mental disease or defect or the effects of intoxication”), (4 CT1067- 1068; 6 RT 1577-1578.) Thetrial court failed to omit those factors from the jury instructions (/bid.), likely confusing the jurors and preventing them from making a reliable determination of the appropriate penalty, in violation of defendant’s constitutional rights. Appellant asks the Court to reconsider its decision in People v. Cook (2006) 39 Cal.4th 566, 618, and hold that the trial court must delete any inapplicable sentencing factors from the jury instructions. 5. The Jurors Should Have Been Instructed That Statutory Mitigating Circumstances Were Relevant Solely As Potential Mitigation . In accordance with customary state court practice, nothing in the instructions given in appellant’s case advised the jurors which ofthe sentencing factors in CALJIC No. 8.85 wereaggravating, which were mitigating, or which could be either aggravating or mitigating depending upon the jurors’ appraisal of the evidence. (4 CT 1067-1068: 6 RT 1577- 1579.) This Court has upheld this practice. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) As a matter of state law, however, several of the factors set forth in CALJIC No.8.85 — factors (d), (e), (f), (g), (hn), and (j) — were relevant solely as possible mitigating circumstances. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Davenport (1985) 41 Cal.3d 247, 288-289.) Appellant’s jurors were not instructed that a “not” answeras to any of these “whether or not” sentencing factors did not establish an aggravating circumstance. Consequently,the jurors were free to aggravate appellant’s sentence based on non-existent or irrational aggravating circumstances,precluding the reliable, individualized, capital sentencing 86 determination required by the Eighth and Fourteenth Amendments. (See Stringer v. Black (1992) 503 U.S.222, 230-236.) As such, appellant asks the Court to reconsiderits holding that the court neednot instruct the jury that certain sentencingfactors are only relevant as potential mitigation. 6. The Instructions Given Failed To Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required To Return a Sentence Of Life Without Possibility Of Parole Penal Code section 190.3 directs the jury in a capital case to impose a sentence oflife imprisonment withoutpossibility of paroleif the mitigating circumstances outweigh the aggravating circumstances. This mandatory language is consistent with the individualized consideration ofa capital defendant’s circumstancesthat is required by the Eighth Amendment. (See Boyde v. California (1990) 494 U.S. 370, 377.) Here, the trial court gave CALJIC No.8.88, which did not addressthis proposition, but only informed the jurors of the circumstances that permitted the rendering of a death verdict. (4 CT 1072-1073; 6 RT 1580- 1581 [CALJIC No. 8.88].) Becauseit fails to conform to the mandate of Penal Code section 190.3, the instruction violated appellant’s right to due process of law. (Hicks v. Oklahoma, supra, 447 US. at p. 346.) This Court has held that because CALJIC No. 8.88 tells the jurors that death can be imposed only if they find aggravation outweighs mitigation,it is unnecessary to instruct on the converse principle. (People y, Duncan (1991) 53 Cal.3d 955, 978.) Appellant submits this holding conflicts with numerous cases disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. 87 Kelley (1980) 113 Cal.App.3d 1005, 1013-1014; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due process principles in that the nonreciprocity involved in explaining how a death verdict may be appropriate, butfailing to explain whena life without possibility of parole verdict is required,tilts the balance offorces in favor of the accuser and against the accused. (See Wardius v. Oregon (1973) 412 U.S. 470, 473-474.) 7. The Jurors Should Have Been. Instructed On the Presumption That Life Without Possibility Of Parole Wasthe Appropriate Sentence The presumption of innocence is a core constitutional and adjudicative value that is essential to protect the accused in a criminal case. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) At the penalty phase of a capital case, the presumptionthat life without possibility of parole is the appropriate penalty is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are much higherat the penalty phase, there is no statutory requirementthat the jury be instructed as to the presumptionthatlife without possibility of parole is the appropriate sentence. (See Note, The Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351; cf. Delo v. Lashley (1993) 507 U.S. 272.) Thetrial court’s failure to instruct the jurors that the law favorslife and presumesthe sentence oflife imprisonment without possibility of parole to be the appropriate sentence violated appellant’s Eighth Amendmentright to be free from cruel and unusual punishment and to have his sentence determined in a reliable and non-arbitrary manner, and his Fourteenth Amendmentright to due process and the equal protection of the 88 laws. In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumptionoflife is not necessary in California capital cases, in part because the United States Supreme Court hasheld that “the state may otherwisestructure the penalty determinationasit seesfit,” so long as state law otherwise properly limits death eligibility. (Jd. at p. 190.) However,as the other subsections of this argument demonstrate, this state’s death penalty law is fundamentally deficient in the protections needed to insure the consistent and reliable imposition of capital punishment. Therefore, a presumption oflife instruction is constitutionally required. E. Failing To Require the Jurors To Make Written Findings Violated Appellant’s Right To Meaningful Appellate Review Consistent with state law (People v. Fauber (1992) 2 Cal.4th 792, 859), the jurors in this case were not required to make any written findings at the penalty phaseofthe trial. The failure to require written or other specific findings by the jury deprived appellant of his rights under the Sixth, Eighth, and Fourteenth Amendments,as well ashis right to meaningful appellate review to ensure the death penalty was not capriciously imposed. (See Gregg v. Georgia (1976) 428 U.S.153, 195.) This Court has rejected - these contentions. (People v. Cook, supra, 39 Cal.4th at p. 619.) Appellant urges the Court to reconsider its decisions on the necessity of written . findings. F. The Prohibition Against Intercase Proportionality Review Guarantees Arbitrary and Disproportionate Imposition Of the Death Penalty California’s capital sentencing schemedoes not require that either the trial court or this Court undertake a comparison between appellant’s and 89 other similar cases regarding the relative proportionality of the sentence imposed,i.e., intercase proportionality review. (People v. Fierro (1991) 1 Cal.4th 173, 253.) The failure to conduct intercase proportionality review violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentprohibitions against proceedings conducted in a constitutionally arbitrary, unreviewable mannerorin violation of the defendant’s right to equal protection or to due process. For this reason, appellant urges the Court to reconsiderits failure to require intercase proportionality review in capital cases. G. California’s Capital SentencingScheme Violates the Equal Protection Clause — California’s death penalty scheme provides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes,in violation of the equal protection clause. To the extent there may be differences between capital defendants and non-capital felony defendants, those differencesjustify more, not fewer, procedural protections for capital defendants. In a non-capital case, any true finding on an enhancementallegation must be unanimous and beyond a reasonable doubt, aggravating and mitigating circumstances must be established by a preponderanceofthe evidence, and the sentence mustset forth written reasonsjustifying the defendant’s sentence. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325; Cal. Rules of Court, rules 4.421 and 4.423.) At the penalty phase of a capital case, there is no burden ofproofatail, and the jurors need not agree on what aggravating circumstances apply nor provide any written findings to justify the defendant’s sentence. Appellant acknowledges the Court has previously rejected these equal protection arguments (People v. Manriquez (2005) 37 Cal.4th 547, 590), but asks the Court to reconsider them. 90 H. California’s Imposition Of the Death Penalty As a Regular Form Of PunishmentFalls Short Of International Norms This Court has rejected numeroustimes the claim that the use of the death penalty atall, or, alternatively, that the regular use of the death penalty, violates international law,the Eighth and Fourteenth Amendments and “evolving standards of decency” (Trop v. Dulles (1958) 356 USS. 86, 101). (People v. Cook, supra, 39 Cal.4th at pp. 618-619; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) In light of the international community’s overwhelmingrejection of the death penalty as a regular form of punishment and the United States Supreme Court’s recent decision citing international law to support its decision prohibiting the imposition ofcapital punishmentagainst defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant urges the Court to reconsiderits previous decisions. 9] [V. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS THAT UNDERMINE THE FUNDAMENTALFAIRNESSOF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT Even if this Court were to conclude that noneof the errors in this case wassufficiently prejudicial, by itself, to require reversal of appellant’s conviction or death sentence, the cumulative effect of the errorsthat occurred below nevertheless requires reversal of appellant’s conviction and sentence. Even where nosingle errorin isolation is sufficiently prejudicial to warrantreversal, the cumulative effect of multiple errors may “so infect[] the trial with unfairness” as to violate due process and require reversal. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643; Chambersv. Mississippi (1973) 410 U.S. 284, 302-303; Estelle v. McGuire (1991) 502 U.S. 62, 72; Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 927-928 [principle that cumulative errors may violate due process is “clearly established” by Supreme Court precedent]; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative error]; People v. Hill (1998) 17 Cal.4th 800, 844-845 [reversing guilt and penalty judgments in capital case for cumulative prosecutorial misconduct].) The death judgmentitself must be evaluatedin light of the cumulative error occurring at both the guilt and penalty phases of appellant’s trial. (People v. Sturm (2006) 37 Cal.4th 1218, 1243-1244 [cumulative effect of penaity phaseerrors prejudiciai understate or federal constitutional standards]; People v. Brown (1988) 46 Cal.3d 432, 463 [applying reasonable possibility standard for reversal based on cumulative error].) In this case the trial court erred at the guilt phase by accepting 92 appellant’s plea of guilty because appellant was representing himself and thus did not have the consent of counsel, as required by Penal Codesection 1018. (ArgumentI, ante.) By virtue ofthis invalid plea, at the penalty phasethe prosecutor was free to present evidence of appellant’s participation in the crime in the most aggravated terms, as the circumstancesofthe crime, despite the existence of evidence that would have mitigated appellant’s actual and relative culpability of capital murder. The court compoundedtheprejudicial effect of the invalid plea by ordering appellant to appear before the jurors — who,byvirtue of the plea, accepted that he was guilty of capital murder — visibly and excessively shackled. (ArgumentII, ante.) Together these errors unfairly and prejudicially magnified the aggravating factors and led the jury to believe appellant was notonly guilty, but also was and would continued to be dangerousifnot executed, These errors were in turn exacerbatedby other defects in California’s capital sentencing scheme. (ArgumentIII, ante.) In this way, the errors at the guilt (i.e., plea) phase and at the penalty phase — even if individually not prejudicial — together preclude the possibility that the jury reached an appropriate verdict in accordance with the state death penalty statute or the federal constitutional requirements of a fundamentally fair, reliable, non-arbitrary and individualized sentencing determination. Reversal of the death judgment is mandated becauseit cannot be shownthatthe errors, individually, or collectively, had no effect on the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 399; Skipper v. South Carolina (1986) 476 U.S.1, 8; Caldwell v. Mississippi (1985) 472 U.S. 320, 341. The cumulative effect of all of the errors set out herein requires that appellant’s guilty plea be vacated andthat his . . ' conviction and sentence of death be reversed. 93 V. THE TRIAL COURT ERREDIN IMPOSING RESTITUTION FINES WITHOUT CONSIDERING APPELLANT?’S INABILITY TO PAY MORE THAN THE STATUTORY MINIMUM A. Introduction and Procedural: Background Whenthetrial court sentenced appellant to deathit also ordered him to pay restitution to several victim restitution funds, totaling approximately $3,400, and imposedrestitution fines in the amount of $10,000 each pursuant to Penal Code sections 1202.4 (restitution fines in felony cases) and 1202.45 (additional parole revocation restitution fine). (8 RT 2041- 2043.)° The Court stayed the fine imposed pursuant to Section 1202.45, only, “pending successful completion of parole if the execution of Count 1 [the death sentence]is not carried out.” (8 RT 2041.) In a companion case (No. 1202051), in which appellant was convicted by plea of certain felonies arising out of his conductwhilein jail, the Court sentenced appellantto a consecutive prison sentence, stayed pending the execution of the death sentence in the capital case, and imposed restitution fines in the amount of $2,400, each, under Penal Code sections 1202.4 and 1202.45. As in the capital case, the Court stayed only the restitution fine imposed pursuantto Section 1202.45, “pending execution of the sentence on Count| in the companioncase, namely, the death penalty.” (8 RT 2043.) The Court then remandedappellant to the custody of the sheriff for transportation to San Quentin State Prison. (8 RT 2044.) * The Court ordered appellantto pay “restitution of $107.77 to State Victim Account 848222; $107.11 to Account Number 848223; $107.77 to Account Number 848223 (sic - same account number); $3,078.47to Account 851144, plus additional restitution in amounts to be determined on those accounts, and also on Accounts 848221 and 825526.” (8 RT 2041.) It does not appear that any “additional restitution” was ever ordered. | 94 Thus,in total appellant has been orderedto pay $3,400 in victim restitution and $24,800 in restitution fines, of which only $12,400 has been stayed pendingthe execution of his death sentence. This meansthat appellant, who is incarcerated on Death Row while he pursues this automatic appeal andother post-conviction remedies, is currently obligated to pay $12,400in restitution fines, as well as $3,400 in victim restitution, despite his continued indigency and the statutory limitations on his ability to earn the meansto paythesefines.”! If appellant does notprevail on this appeal, the restitution fines should each be reduced to $200, becausethetrial court erredin failing to consider appellant’s inability to pay, and he in fact remains indigent and unable to pay a restitution fine greater than the applicable $200 statutory minimum. Any sumsin excess of $200 that havealready been deducted from his inmate trust account should be restored to his account. In the alternative, the matter ofrestitution should be remandedto thetrial court for reconsideration of the amountofthe restitution fines in light of appellant’s inability to pay. | B. The Restitution Fines Are Excessive and Should Be Modified Or Reconsidered In Light Of Appellant’s Inability To Pay a Fine Greater Than the Statutory Minimum Theversion of Section 1202.4 in effect at the time of appellant’s offense provided in pertinent part: (b) In every case wherea person is convicted of a crime, the ?1 As a practical matter, this meansthat whenevera friendor relative of appellant’s deposits so much as $25 to appellant's trust account for him to use to buytoiletries, stamps or food items at the prison “Canteen,” up to half of the amountis deducted from the trust account toward paymentofthe $10,000 restitution fine. 95 court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (1) Therestitution fine shall be set at the discretion of the court and commensurate with the seriousnessofthe offense, but shall not be less than two hundred dollars ($200)starting January 1, 2012... and not more than ten thousand dollars ($10,000), if the person is convicted of a felony.... (c) The court shall imposetherestitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amountofthe restitution Jine in excess ofthe two hundred- dollars ($200)... minimum [for a felony conviction].... (d) In setting the amountofthe fine pursuant to subdivision (b) in excess of the .. . minimum, the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.... (Pen. Code, § 1202.4; italics added.) Thus, Penal Codesection 1202.4 by its terms mandated consideration of the defendant’s inability to pay a restitution fine greater than the then applicable $200 minimum. Thetrial court failed to do. The court made no inquiry of appellant as to his ability to pay a restitution fine greater than $200, muchless a fine of $10,000 (still less two such fines), and made no findings on the issue. (8 RT 2041-2043.) Had the Court conducted the inquiry mandated by Section 1202.4 it would have been apparent that appellant did not and would not havetheability to pay any fine greater than $200, for several reasons. First, appellant was determined to have been indigentat the commencementof the proceedings, and thus was afforded the assistance 96 first of appointed counsel (Michael Carty), then of appointed advisory counsel (Joseph Allen). (See 2 CT 559-560 [appointmentof advisory counsel]; 1 RT 101 [reference to “[Penal Code] section 987.9 funds,” which are provided to indigent capital defendants to retain and compensate expert witnesses and investigators].) Second, as a matter of law appellant, as a condemnedprisoner on Death Row at San Quentin, has virtually no post-incarceration eaming potential. (See Pen. Code, § 2933.2 [“any person convicted of murder, as defined in Section 187; shall not accrue any [worktime] credit”]; /n re Barnes (1985) 176 Cal.App.3d 235, 239 [discussing the Departmentof Corrections and Rehabilitation’s prioritization, with condemnedprisoners and prisonersin security housing units at the lowest priority for work assignments]; see also Pen. Code, § 2933, subd. (b) [a prisoner’s “reasonable opportunity to participate” in work programs “must be consistent with institutional security and available resources”’].) Thus appellant was indigentat the outset, and, having been sentencedto death, would inevitably remain so. People v. Gamache (2010) 48 Cal.4th 347,in which this Court rejected on appeala capital defendant’s challenge to a restitution order, doesnotforeclose relief here. First, while the Court in Gamache did find the claim forfeited for want of an objection, it went on to decide the merits of the claim. (/d. at p. 409.) Moreover, in this case appellant was proceedingin pro. per., and in any eventcould not have knownthat he would not be allowed to work in prison becauseof his status as a condemnedinmate, and thus could not have knownto object on this ground. Second, where in Gamache the Court faulted the appellant for pointing to no evidence ofhis inability to pay, beyond his impending incarceration 97 (/bid.), and madenofinding as to his indigency, here appellant has established he was indigent and points to the statutory limitations on his future earning capacity on Death Row. (Pen. Code, § 2933.2.) C. Conclusion Thetrial court imposed excessiverestitution fines without taking into account appellant’s pay, as required by statute. If appellant does not prevail on this appeal, the fines should be modified to the applicable $200 statutory minimum and any sumsin excess of that amountthat have already been deducted from appellant’s inmate trust account should be funded. In the alternative, the matter of restitution fines should be remandedto thetrial court for reconsideration in light of appellant’s inability to pay. 98 CONCLUSION Forall of the reasons stated above, the entire judgment — the conviction, the special circumstance findings, the sentence of death andthe restitution orders and fines — must be reversed. Dated: September /7, 2014 Respectfully Submitted, MICHAEL J. HERSEK State Public Defender ANDREA G, ASARO Senior Deputy State Public Defender Attorneys for Appellant JOSHUA MARTIN MIRACLE 99 CERTIFICATE OF COUNSEL (Cal. Rules of Court, Rule 8.630(b)(2)) I, Andrea G. Asaro, am the Senior Deputy State Public Defender assigned to represent appellant Joshua Martin Miracle in this automatic appeal. I conducted a word countofthis brief using our office’s computer software. On the basis of that computer-generated word count, I certify that the brief is 28,672 words in length. Dated: September /?, 2014 —Dehesz gene ANDREA G. ASARO! ANDRE for Appellant 100 DECLARATIONOF SERVICE Re: People v. Joshua Martin Miracle Cal. Supreme Ct. No. $140894 (Santa Barbara Co. Sup. Ct. No. 1200303) I, Randy Pagaduan,declare that I am over 18 years of age, and not a party to the within cause; that my business address is 1111 Broadway, Suite 1000, Oakland, California 94607. Onthis day, I served a copy of the following document(s): APPELLANT’S OPENING BRIEF by enclosing it in envelopes and / / depositing the sealed envelope with the United States Postal Service with the postage fully prepaid; /X/_ placing the envelopes for collection and mailing on the date andat the place shownbelow following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondencefor mailing. On the sameday that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. The envelopes were addressed and mailed on September \Q_, 2014,as follows: Peggy Huang,Esq. Honorable Brian E.Hill . Deputy Attorney General Santa Barbara Co. Superior Ct. Department of Justice 1100 AnacapaStreet 300 South Spring Street Santa Barbara, CA 93101 Los Angeles, CA 90013 Pursuant to Policy 4 of the Supreme Court Policies Regarding Cases Arising from Judgments of Death, the above-described documents will be hand delivered to appellant, Joshua Martin Miracle, at San Quentin State Prison within 30 days. I declare under penalty of perjury that the foregoing is true and correct. Signed on September (4%, 2014, at Oakland, California. Op DECENT