1

Filed 3/3/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S086269

v. )

) Riverside County

JONATHAN KEITH JACKSON, ) Super. Ct. No. CR-69388

)

Defendant and Appellant. )

____________________________________)

A jury convicted defendant Jonathan Keith Jackson of the first degree 

murder of Monique Cleveland (Pen. Code, § 187),1 the willful, deliberate, and 

premeditated attempted murder of Robert Cleveland (§§ 664, 187), and being a 

felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd. 

(a)). The jury found true the allegations that defendant inflicted great bodily 

injury upon the attempted murder victim (§§ 12022.7, subd. (a), 1192.7, subd. 

(c)(8)), that he personally used a handgun in the commission of the murder and 

attempted murder (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), and that a principal 

was armed with a handgun in the commission of the murder (§ 12022, subd. 

(a)(1)). The jury also found true the special circumstance that the murder was 

committed while defendant was engaged in the commission or attempted 

commission of a robbery. (§ 211; former § 190.2, subd. (a)(17)(i), now § 190.2, 

 

1 All further statutory references are to this code unless otherwise indicated.
2

subd. (a)(17)(A).)2 The jury, however, was unable to reach a penalty verdict as to 

the murder conviction, and the court declared a mistrial. At the penalty retrial, the 

jury returned a verdict of death on the murder conviction. Appeal to this court is 

automatic. (§ 1239, subd. (b).)

As we explain below, we find no prejudicial error at the guilt or penalty 

phase of defendant’s trial. We therefore affirm the judgment in its entirety.

I. FACTS

A. The Guilt Phase

Robert Cleveland (Robert) and his wife, Monique Cleveland (Monique), 

were shot during an attempted robbery at their residence. Monique was shot in the 

face and died. Robert survived gunshot wounds to his face, upper back, and 

abdomen. The evidence included Robert’s account of the crimes and testimony 

from two witnesses who heard defendant, at separate times, confess to the crimes.

1. The Prosecution Case

In June 1996, Robert and Monique lived in a remote area of Mead Valley. 

Robert was a drug dealer who regularly sold to members of the Mead Valley 

Gangster Crips, including defendant, whom Robert knew by the name “Valley J.” 

Robert conducted many drug transactions in his home and often hid drugs in a 

light fixture in a recessed part of the kitchen ceiling.

 

2 Additionally, it was determined at a bench trial that defendant suffered a 

felony conviction of robbery on October 19, 1992 (§§ 211, 667, subd. (a)), that 

defendant served a prison term for that offense and failed to remain free of prison 

custody and committed another offense resulting in a felony conviction within five 

years subsequent to the conclusion of that prison term (§ 667.5, subd. (b)), and that 

defendant’s October 19, 1992 robbery conviction was a serious and violent felony 

(§§ 667, subds. (c), (e), 1170.12, subd. (c)).
3

One night in June 1996, members of the Blanton family, who lived nearby, 

heard multiple gunshots. Shortly thereafter, they received a call from Robert 

asking for help. Robert had also called 911 to report the shootings.

Michael Blanton and his two daughters rushed to the Cleveland home, 

where they found Robert slumped on the back porch, bleeding from gunshot 

wounds. Robert could barely speak but said he had been shot by Valley J. 

Monique was found in the hallway; she had been shot in the face and was already 

dead. Michael Blanton noticed that the plastic cover from the light fixture in the 

kitchen ceiling was on the ground.

When police officers arrived at the scene, Robert was struggling to remain 

conscious. He told the responding officers that Valley J. and two or three other 

individuals had tried to rob him, and that Valley J. had shot him. Inside the house, 

the police found “Vally J” written in blood on the kitchen floor. In the bedroom, 

the police located a phone book listing a number for “Valley J.”; that number 

corresponded to the house where defendant’s girlfriend lived. The police also 

discovered a package of rock cocaine in the light fixture in the kitchen. A total of 

$507 was found in two different pairs of pants belonging to Robert.

Robert underwent multiple surgeries to repair the gunshot injuries to his 

face, upper back, and abdomen. While recuperating in the hospital, Robert 

identified a photograph of defendant as Valley J.

During a search of defendant’s grandparents’ house, the police recovered a 

green folder with the written notation, “Mista Valley Jay, MVGC Crips.” The 

folder contained paperwork bearing both defendant’s real name and the moniker 

“Valley Jay.” Defendant was later taken into custody in Los Angeles for drinking 

in public; he gave the arresting officer a couple of false names.

Robert was one of the three main witnesses in the guilt phase, and he 

testified as follows. On the night of the shooting, defendant came to Robert’s 
4

house in a minivan containing at least three other individuals. Defendant got out 

and knocked on the door. As Robert picked up his .45-caliber handgun and went 

to answer the door, he heard Monique go into the bathroom down the hall. Robert 

let defendant in and locked the door behind him. Defendant owed Robert $150 

from a previous drug transaction and wanted to get additional drugs. Robert told 

defendant he did not have any drugs for him that night and said they could discuss 

the matter again the next morning. During the course of this conversation, Robert 

set his gun down on the kitchen counter.

As defendant walked toward the door to leave, he suddenly pulled out a gun 

and shot Robert in the face from one or two feet away. Robert fell to the floor and 

looked up to see defendant struggling with his gun, which apparently had jammed. 

As Robert started to pull himself up from the floor, defendant opened the door. 

One of defendant’s companions then entered and shot Robert in the side while 

saying, “Where’s the money? Where’s the drugs?” and, “Let’s get the bitch too.” 

At least one other person also entered the house. When the men asked where the 

drugs were hidden, Robert pointed to the light in the recessed kitchen ceiling and 

then heard the light cover hit the ground. Robert began losing consciousness and 

was only vaguely aware of hearing additional gunshots. He did not recall being 

shot a third time. After the men left, Robert regained consciousness. Thinking he 

was dying, Robert wrote defendant’s name in blood on the kitchen floor and then 

somehow managed to call for help. Although drugs and large sums of cash had 

been in the house, it appeared nothing was taken.

The second main witness was Kevin Jackson (Jackson), who was unrelated 

to defendant. Jackson testified that a day or two after the shooting, he was 

smoking marijuana with defendant and “Alex” and asked whether they had heard 

that Robert and Monique had been shot and killed. Defendant replied, “Yeah. So 

what?” A short time later, defendant told Jackson, “Don’t trip, but I did that.”
5

Defendant then described to Jackson a version of the events that largely 

tracked Robert’s testimony. Defendant said he had gone to purchase drugs from 

Robert, but there had been a dispute about the money defendant owed Robert. 

Defendant felt that Robert had “disrespect[ed]” him, and defendant decided “to 

take what he came for instead of paying for it.” Defendant left the house and went 

to the car where his friends were waiting. He told them he was going to “jack” 

Robert and “take everything [he] had.” Defendant returned to the house, and 

Robert answered the door holding a gun. When Robert put the gun on the counter, 

defendant pulled out his own gun. Robert was substantially bigger than defendant, 

and he jumped at defendant and tried to take defendant’s gun. Defendant had 

recently been hospitalized following a motorcycle accident and “couldn’t take a 

chance on [Robert] grabbing him,” so defendant stepped back and shot Robert. 

Defendant then let in his “homies,” and one of them told him to finish what he 

started. Defendant found Monique in another part of the house. While she was 

down on the floor, he grabbed her by the hair and asked her where the money was. 

Monique replied, “What money?” Defendant then “blew her brains out,” using a 

gun he had borrowed from one of his cohorts. During their conversation, 

defendant opened a nightstand drawer and showed Jackson the gun he used to 

shoot Robert.

The third main witness was Kevin Jackson’s younger brother, Donald 

Profit, who was 14 years old at the time of the crimes. Like defendant, Profit was 

a member of the Mead Valley Gangster Crips. Profit testified he had been 

smoking marijuana with defendant one or two days after the crimes, when 

defendant told Profit he “messed up” and confessed to shooting Robert and 

Monique. Defendant said he shot Robert in the head because he “had to get paid” 

and shot Monique because he “didn’t want no witnesses.” Defendant and his 

cohorts then searched the house for drugs. Profit claimed defendant had told him 
6

he had taken eight ounces of “dope” from Robert. Profit later stated he had seen 

defendant with this quantity of drugs some two weeks before the shooting.

Two expert witnesses testified regarding the likely manner in which 

Monique had been killed. Dr. Joseph Choi, a forensic pathologist who performed 

the autopsy, testified the gun had likely been between two and four inches from 

her face when she was shot. In his opinion, Monique’s injuries indicated she had 

been lying facedown on the floor while the shooter stood over her, lifted her head 

by the hair, and shot her in the left cheek. Elissa Mayo, a senior criminalist with

the California Department of Justice, analyzed the blood spatter at the crime scene. 

Based on that analysis, Mayo estimated that Monique’s head was no higher than 

two feet above the floor when she was shot.

2. The Defense Case

The defense rested without introducing any evidence.

B. The Penalty Phase

After convicting defendant of the charged crimes, the jury was unable to 

reach a penalty verdict. The following evidence was presented at the penalty 

retrial.

1. The Prosecution Case

The prosecution introduced evidence of the circumstances of the crime. As 

he did in the guilt phase, Kevin Jackson recounted the story defendant had told 

him shortly after the shooting. Testimonial evidence and an autopsy photograph 

established that Monique was one month pregnant when she was murdered.

Evidence concerning the circumstances of defendant’s prior convictions 

also was presented. Joseph Canada testified that in July 1991, he had pulled his 

car off to the side of the road to eat his lunch and then dozed off. When Canada 

awoke, he saw defendant, who appeared to be 16 years old, pointing a shotgun 
7

directly at Canada’s face from two to three feet away. Three other teenage males 

were pointing shotguns at Canada from a Jeep Cherokee parked approximately 10 

to 15 feet away. Defendant demanded Canada’s wallet and keys and told him to 

lie facedown in the dirt. Canada thought he was going to die, but the teens drove 

off, taking Canada’s car along with the Jeep. Once they had gone, Canada rushed 

to a nearby house and called 911. Defendant and his accomplices were soon 

spotted and led the police on a chase. They eventually surrendered after a twohour standoff. The incident continued to affect Canada years afterward.

In July 1992, defendant and his cousin, Derrick Palmer, committed an 

armed robbery of a drug store. While Palmer disarmed the store’s owner and took 

cash out of the register, defendant approached two store employees. One of these 

employees, Kenny Johnson, testified that defendant pointed a loaded gun at his 

face. Defendant then put his knee in Johnson’s back and jammed the gun into his 

neck so hard that it caused a blood clot. Defendant asked where the store cameras 

were, and Johnson replied there were no cameras. Defendant told Johnson: 

“When I count to three, if you don’t tell me, you’re dead.” Defendant counted to 

two, then ran away. Both Palmer and defendant were arrested after their mothers 

turned them in to the police.

In September 1994, two police officers stopped a car in which defendant 

was riding in the front passenger seat. When defendant exited the car, the officers

discovered a loaded handgun on his seat. Defendant was arrested for being a felon 

in possession of a loaded firearm.

The prosecution also introduced evidence of the following altercations 

involving defendant while he was in jail or prison. In June 1995, James Ghan was 

a correctional officer at Mule Creek State Prison (Mule Creek), where there was 

tension between inmates in the Crips gang and inmates in the 415 gang. Ghan 

witnessed a group of six to eight 415 inmates rush across the prison yard to attack 
8

two or three Crips inmates. Other Crips ran to join the fray. Eventually as many 

as 18 people were involved in the brawl, which ended shortly after Ghan shot a

415 inmate who was kicking a Crips inmate in the head. Defendant was later 

identified as one of the Crips who participated in the brawl, although his role in 

the fight was unclear.

Correctional Sergeant Vern Nichols testified that in August 1995, defendant 

and two other Mule Creek inmates refused an officer’s order to “get down” after a 

fight had broken out between two inmates elsewhere in the prison. One of the 

three inmates told the officer, “Fuck you. We don’t have to get down,” but 

Nichols was not sure whether it had been defendant.

In November 1995, Correctional Officer Floyd Haynes had seen defendant 

and another Mule Creek inmate fighting in the basketball court area of the prison 

yard. Haynes yelled at them to stop fighting and get down on the ground, which 

they did. Haynes was not sure what had prompted the fight.

William Rose, a correctional deputy with the Riverside County Sheriff’s 

Department, testified about an incident that occurred when defendant was being 

held in the Southwest Detention Center. On one occasion in September 1996,

defendant had refused an order to respond to the guards who were conducting a 

head count. When defendant subsequently stepped out of his cell and was 

handcuffed, he used profanity and challenged the guards to a fight.

In June 1997, Correctional Officer Jerry Baker broke up an altercation 

between defendant and inmate Robert Mayo in defendant’s cell at the Robert 

Presley Detention Center. Mayo claimed that he had gone into defendant’s cell 

after the two argued while playing basketball, and that defendant had “suckerpunched” him in the back of the head.
9

With respect to victim impact testimony, Monique Cleveland’s cousin, 

Jeannette Burns, described Monique’s life and the impact of her death on their 

family.

2. The Defense Case

Four family members appeared on defendant’s behalf. Defendant’s 

maternal grandparents each testified that defendant’s father had little or no role in 

raising his son. Defendant’s grandfather also claimed that defendant, after getting 

out of prison, injured his head in a motorcycle accident and did not seem to be the 

same person afterward.

Defendant’s older brother, Antione Jackson (Antione), described in detail 

the circumstances of defendant’s upbringing. When Antione was five and 

defendant was four, their mother had moved in with a man named Alonzo. 

Antione described the year during which they lived with Alonzo as “torture.” 

Antione and defendant saw Alonzo beat their mother many times. Defendant tried 

to defend his mother, but Alonzo would throw him across the room. Antione also 

recalled numerous times when he, defendant, and their mother were forced to 

accompany Alonzo on trips to steal cars. A short time after their mother moved 

them out of Alonzo’s house, Alonzo came to their grandmother’s home with his 

“flesh burning,” like he was “melting.” Alonzo eventually died from his burns.

After Alonzo was out of the picture, Antione and defendant were exposed 

to a great deal of violence. Their mother became abusive. She also moved them 

back and forth between neighborhoods affiliated with either the Crips or the 

Bloods, and children associated with the gangs often attacked them or challenged 

them to fights. Antione recounted his own early involvement in gangs and crimes, 

his extrication from his gang affiliations, and his later service in the army.
10

Defendant’s mother, Paula Rice, confirmed and expanded on much of the 

testimony by her parents and Antione. Defendant’s biological father had become 

a drug addict soon after defendant’s birth and had never been a part of his life. 

Rice spoke of the daily physical abuse she endured from Alonzo, which was 

regularly witnessed by, and sometimes involved, defendant. She also described 

the incredible lengths to which Alonzo would go to keep her under his control, and 

said he raped her in front of defendant on multiple occasions. Rice was able to 

move her family out of Alonzo’s house only after she responded to one of his 

regular beatings by stabbing him with a pair of scissors. Their relationship ended 

a few months later when he died from his burn injuries.

Subsequently, Rice regularly moved the family between gang-affiliated 

neighborhoods, which often resulted in her two sons being attacked. Rice also 

described her involvement in another abusive relationship when defendant was 

approximately 13 years old, and defendant’s attempts to physically defend her on 

multiple occasions.

II. DISCUSSION

A. Use of Stun Belt at Trial

Defendant contends the trial court’s orders requiring him to wear a 

REACT3 stun belt during his trial were an abuse of discretion and violated his 

constitutional rights to due process, effective assistance of counsel, and a reliable 

penalty phase trial. These alleged errors and constitutional violations, he claims, 

require reversal of his convictions and death judgment.

 

3 “REACT” stands for “Remote Electronically Activated Control 

Technology.” (People v. Mar (2002) 28 Cal.4th 1201, 1214 (Mar).)
11

1. Governing Legal Principles

A trial court “ ‘has broad power to maintain courtroom security and orderly 

proceedings.’ [Citation.] On appeal, its decisions on these matters are reviewed 

for abuse of discretion.” (People v. Virgil (2011) 51 Cal.4th 1210, 1270 (Virgil).) 

In People v. Duran (1976) 16 Cal.3d 282 (Duran), a case involving visible 

shackling, we held that “a defendant cannot be subjected to physical restraints of 

any kind in the courtroom while in the jury’s presence, unless there is a showing 

of a manifest need for such restraints.” (Id. at pp. 290-291, italics added.) Federal 

law is in accord. (See Deck v. Missouri (2005) 544 U.S. 622, 624 [federal 

Constitution “forbids the use of visible shackles . . . unless that use is ‘justified by 

an essential state interest’ . . . specific to the defendant on trial”].)

In Mar, supra, 28 Cal.4th 1201, we extended Duran’s “manifest need” 

standard to use of visible and nonvisible electronic stun belts. (Mar, at pp. 1218-

1220; see Virgil, supra, 51 Cal.4th at p. 1270.) In deciding whether use of a stun 

belt is justified, “ ‘the trial court may “take into account the factors that courts 

have traditionally relied on in gauging potential security problems and the risk of 

escape at trial.” [Citation.] These factors include evidence establishing that a 

defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or 

otherwise engage in nonconforming behavior.’ [Citation.] Although the court 

need not hold a formal hearing before imposing restraints, ‘the record must show 

the court based its determination on facts, not rumor and innuendo.’ [Citation.]” 

(Virgil, at pp. 1270-1271.)

Even though Mar was the first California opinion to hold Duran’s manifest 

need standard applicable to stun belts, we have applied the standard to cases tried 

before Mar was decided. (E.g., Virgil, supra, 51 Cal.4th at pp. 1269-1271; People 

v. Lomax (2010) 49 Cal.4th 530, 558-562; People v. Gamache (2010) 48 Cal.4th 

347, 366-370; Mar, supra, 28 Cal.4th at pp. 1222-1223.) However, in cases where 
12

the trial predated Mar, we have not faulted the courts for failing to consider the 

potential physical harm and psychological impact of stun belts as part of the 

manifest need determination. (Virgil, supra, 51 Cal.4th at p. 1271 [observing Mar

discussed these points to provide guidance in future trials]; Lomax, at p. 562; 

Gamache, at p. 367, fn. 7; Mar, at pp. 1225-1230.)

As we have explained, the unjustified use of a stun belt may adversely 

affect the fairness of a trial or the reliability of a judgment in various ways. Like 

shackles that are visible to the jury, visible stun belts “may erode the presumption 

of innocence because they suggest to the jury that the defendant is a dangerous 

person who must be separated from the rest of the community.” (People v. 

Hernandez (2011) 51 Cal.4th 733, 742; see Duran, supra, 16 Cal.3d at p. 290 

[visible shackling will likely lead jurors to infer the defendant is a violent person].) 

Moreover, as in cases of forced shackling, the forced wearing of a stun belt may 

discourage the defendant from taking the stand, or may impair the defendant’s 

credibility if he or she decides to testify. (Mar, supra, 28 Cal.4th at pp. 1224-

1225; Duran, at p. 296.) Additionally, “requiring an unwilling defendant to wear 

a stun belt during trial may have significant psychological consequences that may 

impair a defendant’s capacity to concentrate on the events of the trial, interfere 

with the defendant’s ability to assist his or her counsel, and adversely affect his or 

her demeanor in the presence of the jury.” (Mar, at p. 1205.)4

In Duran, supra, 16 Cal.3d 282, and Mar, supra, 28 Cal.4th 1201, the 

respective trial courts failed to require a showing of manifest need before ordering 

 

4 Hence, while courts in trials predating Mar, supra, 28 Cal.4th 1201, were 

under no obligation to consider the potential psychological consequences before 

issuing a stun belt order (id. at p. 1225, fn. 7), our prejudice analysis requires that 

we review the record for evidence that the unjustified use of a stun belt resulted in 

mental anxiety or distress that impaired the defendant’s right to a fair trial.
13

the defendants to wear restraints while testifying. In Duran, we found it 

significant that, due to the erroneous order, the defendant was forced to wear 

visible wrist and ankle restraints while exercising his right to testify. (Duran, at 

p. 296.) We also determined the defendant should have been “afforded a proper 

and full opportunity to cross-examine” a critical witness and was “denied a proper 

and full opportunity to explain why he fled” from the crime scene. (Id. at pp. 295-

296.) Observing that the evidence inculpating the defendant did not compel a 

guilty verdict, and that the visible shackling damaged the defendant’s credibility in 

the eyes of the jury, we concluded the compounded effect of these errors required 

reversal of the judgment under People v. Watson (1956) 46 Cal.2d 818 (Watson). 

(Duran, at pp. 295-296.)

In Mar, the defendant was forced to wear a stun belt that was not visible to 

the jury. The defendant, however, had “clearly stated that the device made it 

difficult for him to think clearly and that it added significantly to his anxiety, and 

the trial transcript confirm[ed] that defendant was nervous while testifying at 

trial.” (Mar, supra, 28 Cal.4th at p. 1224.) “Moreover, defense counsel 

specifically noted that defendant was ‘afraid that somebody’s going to push the 

button,’ and in light of the circumstances that defendant was on trial for having 

caused an injury to a law enforcement officer and that the activation of the stun 

belt was to be controlled by another law enforcement officer, defendant’s 

expressed anxiety in this regard, even if not justified, [was] plausible.” (Id. at 

pp. 1224-1225.) Because of “the relative closeness of the evidence, the crucial 

nature of defendant’s demeanor while testifying, and the likelihood that the stun 

belt had at least some effect on defendant’s demeanor while testifying,” we 

concluded the error was prejudicial, even under the Watson standard. (Id. at 

p. 1225.) Thus, in both Duran and Mar, the respective records disclosed that the 
14

unjustified use of shackling and a stun belt had adverse effects that were not 

harmless.

In contrast to the situations presented in Duran and Mar, reversal of a 

judgment is unwarranted when the record on appeal is devoid of evidence that the 

unjustified use of shackles or a stun belt had any adverse effect. For instance, 

while restraints have the potential to bias jurors against the defendant (People v. 

Hernandez, supra, 51 Cal.4th at p. 742; Duran, supra, 16 Cal.3d at p. 290), their 

use may be harmless when there is no indication the jurors saw the restraints. (See 

People v. Manibusan (2013) 58 Cal.4th 40, 85 (Manibusan) [finding of 

harmlessness based in part on circumstance that “[n]othing in the record suggests 

that any juror saw the belt”]; People v. Foster (2010) 50 Cal.4th 1301, 1322; 

People v. Letner and Tobin (2010) 50 Cal.4th 99, 155 (Letner) [“we do not 

presume the prospective jurors viewed the restraint, and there is no evidence in the 

record demonstrating they did observe it”]; accord, United States v. McKissick

(10th Cir. 2000) 204 F.3d 1282, 1299 [refusing to presume prejudice where no 

evidence in record that any juror noticed the stun belt].)

Likewise, while restraints can impair a defendant’s ability to testify 

effectively (Duran, supra, 16 Cal.3d at p. 296), their use may be harmless when 

the defendant chose not to testify at trial, and there is nothing in the record 

suggesting a nexus between that decision and the forced wearing of the restraint. 

(Virgil, supra, 51 Cal.4th at p. 1271; see People v. Combs (2004) 34 Cal.4th 821, 

838-839; People v. Anderson (2001) 25 Cal.4th 543, 596; People v. Cox (1991) 

53 Cal.3d 618, 652.)

Finally, while shackles and stun belts certainly “have the potential to impair 

an accused’s ability to communicate with counsel or participate in the defense,” 

the erroneous imposition of those restraints may be harmless where the record 

“does not reveal that any such impairment occurred.” (People v. Ervine (2009) 
15

47 Cal.4th 745, 773-774 [shackling]; see Manibusan, supra, 58 Cal.4th at pp. 85-

86 [stun belt]; People v. Howard (2010) 51 Cal.4th 15, 30 [stun belt] (Howard); 

Letner, supra, 50 Cal.4th at p. 156 [“no evidence in the record demonstrating that 

[the defendant’s] ability to participate was affected in any manner by his wearing 

the leg brace”]; People v. Wallace (2008) 44 Cal.4th 1032, 1051 (Wallace) [no 

evidence that shackling caused defendant to suffer from mental impairment, 

physical pain, or obstruction of communication with counsel, or that it influenced 

his decisions regarding testifying]; People v. Combs, supra, 34 Cal.4th at p. 839 

[noting no evidence or claim that the defendant’s leg restraints influenced him not 

to testify, or that the restraints “distracted him or affected his demeanor before the 

jury”]; accord, Weaver v. State (Fla. 2004) 894 So.2d 178, 196; Stanford v. State

(Ga. 2000) 528 S.E.2d 246, 249-250; State v. Odenbaugh (La. 2011) 82 So.3d 

215, 257-258; State v. Johnson (Ohio 2006) 858 N.E.2d 1144, 1179-1180.)5

 

5 In People v. Hill (1998) 17 Cal.4th 800, we reversed a death judgment 

based in part on the trial court’s failure to independently assess whether the 

defendant posed a sufficient danger of escape to warrant shackling before the jury. 

(Id. at p. 846.) There, we did not review the record for evidence that the shackling

— which was not visible to the jury — adversely affected the defendant’s mental 

state, but simply noted the “possibilities of prejudice.” (Ibid.) Significantly, 

however, that defendant’s trial was rife with numerous other serious errors, 

including constant and outrageous prosecutorial misconduct; the court’s failure to 

excuse a bailiff from further courtroom duties after he testified against the 

defendant; the court’s failure to instruct the jury regarding the bailiff’s testimony; 

and instructional error under Carlos v. Superior Court (1983) 35 Cal.3d 131. 

(Hill, at pp. 844-847.) Considered together, the prosecutorial misconduct and trial 

court errors “created a negative synergistic effect, rendering the degree of overall 

unfairness to defendant more than that flowing from the sum of the individual 

errors.” (Id. at p. 847.) Because the circumstances in Hill were extraordinary, we 

do not view its shackling discussion as casting doubt on the prejudice analysis of 

the numerous other authorities cited above.
16

2. Analysis

We turn to the facts in this case. Prior to defendant’s trial, which preceded 

Mar, supra, 28 Cal.4th 1201, defendant objected to being physically restrained 

and shackled during any of the court proceedings against him. At the time, the 

only published authority addressing a trial court’s discretion to order a defendant 

to wear a REACT stun belt was People v. Garcia (1997) 56 Cal.App.4th 1349 

(Garcia), which concluded that, unlike shackling, a stun belt was not a physical 

restraint requiring an on-the-record showing and finding of manifest need. (Id. at 

pp. 1355-1356 & fn. 1.) In light of Garcia, the prosecution responded to 

defendant’s objections with a request that defendant be required to wear a stun belt 

throughout the trial, or in the alternative, that defendant be given the option of 

wearing shackles instead. The prosecution supported its stun belt request by 

pointing to the allegations of the charged crimes and the incidents described in the 

statement of aggravation.

Based on a deputy’s assurance that having two deputies in the courtroom 

during defendant’s trial would provide adequate security, the court declined to 

order shackling and determined that a stun belt would not be necessary. The court 

ultimately required use of a stun belt after the sheriff’s department could not 

guarantee the presence of two deputies unless a belt were ordered.

When defendant first wore the belt in the courtroom, the court noted the 

belt had “a special safety guard” and stated that if problems were to “arise with 

comfort, or so forth,” defendant should “just let the deputies know at breaks. We 

will make him as comfortable as possible.” Defense counsel immediately stated 

the belt was uncomfortable for defendant and did not allow him to lean back in his 

chair, so the attending deputy worked to adjust the belt. Because the deputy 

thought defendant was concerned that leaning back would activate the belt, he 

assured defendant and the court that that would not happen. After the belt was 
17

adjusted and defendant was given a pillow, defendant said, “That’s a little better.” 

Later that day, defense counsel reported to the court that defendant was 

“indicating for just this afternoon” that he was very uncomfortable because the 

belt seemed tighter than before. The court ordered the attending deputy to do 

whatever he could to make defendant comfortable, and the deputy agreed. When 

the court acknowledged during this exchange that “sitting backwards with the box 

at the hip . . . certainly can be uncomfortable,” defense counsel stated, “Judge, just 

so we’re clear, I think we resolved that problem. I think he’s just got it on too 

tight today.” After the belt was readjusted, the defense reported no additional 

complaints or concerns about the stun belt at the guilt phase or the first penalty 

trial.6

After the first jury could not reach a penalty verdict, a different judge was 

assigned to preside over the penalty retrial. The prosecution again requested use 

of a stun belt, and defense counsel objected on two grounds. First, counsel argued 

the belt was unnecessary because defendant had not done “anything in the past to 

exhibit any kind of unruly behavior or any disrespect to the Court or any staff.” 

Second, the belt was uncomfortable for defendant, and counsel was “worried 

about any unconscious grimacing or exhibitions of discomfort that [defendant] 

might make that might be misconstrued by the jury as a reaction to witness 

testimony or anything like that.” When counsel asked the court to instead consider 

ordering a leg brace, the court expressed its belief that shackling was “most 

 

6 The only other mention of the stun belt during the first trial occurred when 

the court and counsel addressed the security plans to be used when Robert 

Cleveland, who allegedly harbored “very ill feelings” toward defendant for 

“shooting him in the face and killing his wife,” was to take the stand. A deputy 

explained that the plan was to have three deputies in the courtroom, one of whom, 

as usual, would be monitoring the REACT stun belt.
18

offensive.” Upon determining that a leg brace would not sufficiently address its 

concerns “about the violent nature of [defendant’s] responses to people in 

authority,” the court approved use of a stun belt and ordered a pillow to alleviate 

defendant’s discomfort.

Defendant first contends the trial court abused its discretion in forcing him 

to wear the belt during the guilt phase because: (1) having determined the belt 

would not be necessary if two deputies were available, the court should have 

ordered the sheriff’s department to provide two deputies instead of deferring to the 

department’s policy of not providing a second deputy unless a belt were ordered 

(see Mar, supra, 28 Cal.4th at p. 1218 [trial court must make its own 

determination of the manifest need for restraints and may not “abdicate[] this 

decision-making authority to security personnel or law enforcement”]); and (2) the 

court required use of the belt despite the absence of any on-the-record showing of 

nonconforming conduct by defendant (see id. at pp. 1220-1221).7

Defendant further contends the trial court abused its discretion in ordering a 

stun belt for the penalty retrial because: (1) as before, there was no on-the-record 

showing of nonconforming conduct by defendant, and the court instead relied on 

unsworn out-of-court statements of an unidentified bailiff in concluding the belt 

was necessary (see Mar, supra, 28 Cal.4th at pp. 1220-1221); (2) the court failed 

 

7 Relying on Mar, supra, 28 Cal.4th 1201, defendant also complains the trial 

court erroneously failed to make any inquiry into potential psychological 

consequences and physical effects in the event he were restrained with a stun belt. 

As discussed, however, Mar made clear its discussion regarding these inquiries

was offered to provide guidance for future trials. (Id. at pp. 1225-1226, 1230.) 

Because defendant’s trial preceded the Mar decision by several years, the trial 

court was not required to foresee and discuss such concerns before issuing its 

order. (Virgil, supra, 51 Cal.4th at p. 1271; People v. Gamache, supra, 48 Cal.4th 

at p. 367, fn. 7.)
19

to consider defendant’s three-year record of courtroom cooperation; and (3) the 

court failed to consider less drastic alternatives to the stun belt, such as additional 

deputy presence in the courtroom (see id. at p. 1206 [“court should impose the 

least restrictive measure that will satisfy the court’s legitimate security 

concerns”]).

In light of the People’s concession at oral argument that the trial court erred 

under Mar, supra, 28 Cal.4th 1201, we proceed directly to the issue of prejudice. 

As we shall explain, the record affirmatively dispels any notion of prejudice, 

leaving no reasonable possibility that defendant would have received a more 

favorable verdict had the trial court not required him to wear a stun belt. (People 

v. Brown (1988) 46 Cal.3d 432, 446-448 (Brown).)8

First, there is no evidence in the record that the jurors saw the stun belt at 

any time. Thus, there is no basis for finding that visibility of the belt may have 

biased the jurors’ perception of his character. (See People v. Foster, supra, 50 

Cal.4th at p. 1322; Letner, supra, 50 Cal.4th at p. 155.) Second, defendant chose 

not to take the stand, and the record contains no suggestion the forced wearing of 

the belt played any role in that decision so as to inhibit his defense. (See Wallace, 

supra, 44 Cal.4th at p. 1051; People v. Cox, supra, 53 Cal.3d at p. 652.)

We next assess whether the stun belt had any other adverse effect on 

defendant. During the first trial, the only time defendant voiced complaints about 

the belt’s effects was on the first day he wore it. In the morning, he complained 

the belt was uncomfortable and would not allow him to lean back in his chair. In 

response, the court had the belt adjusted, offered defendant a different chair 

 

8 We employ the test applicable to state law error at the penalty phase of a 

capital trial, because defendant claims the court’s ruling affected both the guilt and 

penalty phases.
20

(which he declined), and provided him a pillow. That afternoon, defendant again 

indicated discomfort because of the stun belt. At that point, defense counsel

clarified that defendant’s earlier difficulty with leaning back had been “resolved,” 

and that the issue that afternoon pertained merely to the belt’s feeling tighter to 

defendant than before. The stun belt was readjusted, and the defense reported no 

additional complaints or concerns about the belt through the conclusion of the first 

trial.

At a hearing before the penalty retrial commenced, defense counsel 

expressed worry to the trial court that the stun belt might cause defendant to 

unconsciously grimace or exhibit discomfort that might be misconstrued by the 

jury as a reaction to witness testimony. As in the first trial, the court ordered 

defendant to wear the belt but made sure a pillow was provided to address the 

discomfort issue. The retrial proceeded to its conclusion without any defense 

claim or assertion that the stun belt was affecting defendant’s demeanor.

We observe that, at the outset of the first trial, the attending deputy said he 

thought defendant might be concerned that leaning back would activate the stun 

belt. Although the defense offered no indication that defendant actually had this 

worry, the deputy assured defendant and the court that leaning back would not 

activate the belt. Throughout the duration of both trials, the defense never once 

stated or suggested that the threat of electric shock affected defendant’s mental 

state or that the belt caused him to experience mental stress or impairment.

Justice Liu evidently agrees that the stun belt was not visible to the jurors, 

that it did not affect defendant’s decision not to testify, that it did not inhibit 

defendant’s ability to confer with counsel, and that it was not prejudicial at the 

guilt phase. Nonetheless, Justice Liu identifies two incidents as supporting his 

notion that the belt may have impaired defendant’s ability to maintain a positive 

demeanor before the jury at the penalty retrial. First, he contends the penalty 
21

retrial court made a remark that defendant “could have reasonably interpreted . . . 

as a warning that the bailiff would activate the stun belt if defendant were to 

engage in any further verbal or nonverbal communication with his family.” 

(Conc. & dis. opn. of Liu, J., post, at p. 32.) This, however, is pure conjecture. 

The record contains no indication that defendant construed the court’s remark in 

the manner suggested. The defense made no claim or objection that the remark 

had any effect on defendant’s demeanor or mental state, and this despite the fact 

that defense counsel readily complained when the belt was too tight or made it 

difficult for defendant to lean back. Even defendant’s appellate briefing makes no 

mention of the remark.

Second, Justice Liu notes that, at the first penalty trial, the defense moved 

to preclude the prosecution from commenting on defendant’s in-court demeanor, 

and the trial court agreed that, up to that point, “ ‘the only real issue is lack of 

emotion.’ ” (Conc. & dis. opn. of Liu, J., post, at p. 31.) Although Justice Liu 

surmises that this exchange pertained to the stun belt’s effects, the defense offered 

no indication at trial that its motion had anything to do with the belt; likewise, 

defendant’s appellate briefing makes no reference to the exchange. The transcript 

of the proceedings, read in context, shows that the exchange occurred while the 

prosecution was still presenting its case in aggravation, so it is hardly surprising 

that defendant may have sat impassively while testimony of the prosecution’s 

witnesses was being taken. Moreover, the thrust of the defense’s motion was that 

there was no foundation for negative prosecutorial comment on defendant’s 

demeanor or supposed lack of remorse, because there was no evidence of 

defendant’s acting out or inability to control himself in court. As indicated by its 

comment, the trial court agreed.

Neither of these incidents supports Justice Liu’s speculation that the stun 

belt may have caused defendant to exhibit any observable behavior that would 
22

have detracted from his defense. In fact, the record is to the contrary, 

affirmatively demonstrating the assessment of defense counsel that the jurors’ 

consideration of defendant’s courtroom demeanor would have a favorable effect 

on their penalty determination. Specifically, at each of the penalty trials counsel 

urged the court to give two special instructions that would have told the jurors 

their in-court observations of defendant could be considered in mitigation. When 

the court expressed skepticism about giving these instructions at the first penalty 

trial, defense counsel held fast and countered that case law permitted the jurors “to 

draw a humane perception of the defendant by his conduct, the way he looked.” 

Although the defense’s special instructions were refused at both penalty trials, the 

only reasonable inference that can be drawn from counsel’s vigorous efforts on 

this point is that the stun belt did not have the prejudicial effect urged by Justice 

Liu.

Howard, supra, 51 Cal.4th 15, is instructive under these circumstances. In 

Howard, the defendant claimed the trial court erred and violated his constitutional 

rights by requiring him to wear a stun belt without making the requisite finding of 

manifest need. Although we agreed the court’s order was error, we found it was 

not prejudicial even assuming application of the “reasonable doubt” harmless error 

test of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Howard, at p. 30.) 

There the record showed the defendant had made an extended statement to the 

court at sentencing that antipsychotic medication affected his mental state during 

trial. (Id. at p. 29.) Significantly, however, the defendant “made no reference to a 

stun belt or its effects on his demeanor.” (Ibid.) Therefore, we concluded, 

wearing the stun belt had “no appreciable effect on him, even by his own account” 

(id. at p. 30), and “the record affirmatively dispels any notion that he was 

prejudiced” (id. at p. 28). (See also Manibusan, supra, 58 Cal.4th at p. 86 

[defendant’s psychological impact argument lacked any support in the record and 
23

was inconsistent with his express agreement to wear stun belt and his failure to 

mention the issue in his new trial motion].)

A similar finding of harmlessness is warranted here. When defendant 

began wearing the stun belt, the trial court told the defense to let the deputies 

know if any problems were to arise with the belt. As the record reflects, defendant 

and his counsel identified only one complaint, namely, that the belt was 

uncomfortable to wear, either because it would not allow defendant to lean back in 

his chair or because it was too tight. A pillow was provided, and each time the 

defense spoke up, the court ordered adjustment of the belt in order to make 

defendant as comfortable as possible. Notably, the defense made no mention at 

either trial of the stun belt’s potential or actual effects on defendant’s mental state, 

and the record contains no hint that wearing the belt caused defendant to 

experience mental distress or that it inhibited his ability to confer with counsel and 

participate in his defense. Moreover, defendant’s current claim of prejudicial 

psychological impact is inconsistent with his complete failure to mention the stun 

belt or its effects in any of his various motions for a mistrial, a new guilt trial, and 

a new penalty trial. (See Manibusan, supra, 58 Cal.4th at p. 86.) Finally, any 

contention that the belt may have caused defendant to exhibit a negative demeanor 

is highly dubious given defense counsel’s on-the-record arguments that the jurors 

should be specially instructed that their in-court observations of defendant could 

be considered in mitigation.

Defendant claims his inability to turn around in his chair prevented him 

from seeing the prospective jurors at the penalty retrial and participating fully in 

the jury selection process. He also suggests his failure to face the prospective 

jurors may have alienated them. A fair reading of the reporter’s transcript 

discloses, however, that the stun belt had nothing to do with the circumstance that 

defendant could not see or face the prospective jurors. Rather, as defense counsel 
24

explained to the trial court, defendant had been specifically instructed to face 

forward at the counsel table and to not turn around at all, despite the unusual 

circumstance that the prospective jurors were all behind the counsel table. As 

soon as counsel brought this to the court’s attention, defendant was allowed to 

move to the end of the table. Once there, defendant could see the prospective 

jurors while still facing forward as instructed, and the defense made no further 

complaints along this line.9 Thus, any claimed interference and alienation during 

the jury selection process cannot be attributed to the stun belt.

In sum, there is no evidence that the stun belt was visible to the jurors or 

that it affected defendant’s decision not to testify. Likewise, there is no indication 

the belt caused defendant mental anxiety or inhibited his ability to confer with 

counsel and participate in his defense. There is, however, evidence that defense 

counsel viewed defendant’s demeanor as weighing in his favor during the penalty 

trial. Accordingly, the record affirmatively dispels any notion of prejudice, 

leaving no reasonable possibility that defendant would have received a more 

favorable verdict had the trial court not required him to wear a stun belt. (Brown, 

supra, 46 Cal.3d at pp. 446-448; see Howard, supra, 51 Cal.4th at p. 28; id. at 

p. 30; Letner, supra, 50 Cal.4th at p. 156; People v. Ervine, supra, 47 Cal.4th at 

 

9 Defense counsel’s statements were as follows: “Yesterday it came to my 

attention that [defendant’s] instructions at counsel table are to face forward, not 

turn around at all. [¶] Because this is an unusual proceeding where we have all the 

jurors behind us, I’m asking for permission to let him turn and be able to look at 

the jury, because I realized yesterday that he hasn’t seen any of these jurors. He’s 

not able to participate fully in helping me select this jury. And plus I don’t want to 

give the wrong impression to the jurors that he doesn’t care and he’s not going to 

turn around and be able to look them in the eye. So we have a conflict between 

. . . .” At that point the court suggested that defendant could sit at the end of the 

table, where he would be facing forward at all times. The deputy readily agreed, 

and we may infer that the issue was resolved to everyone’s satisfaction.
25

pp. 773-774; Wallace, supra, 44 Cal.4th at p. 1051; People v. Anderson, supra, 25 

Cal.4th at p. 596; People v. Cox, supra, 53 Cal.3d at pp. 650, 652 [no prejudice 

found even where defense counsel complained the handcuff used on defendant 

was “very uncomfortable”].)

Defendant, citing lower federal court decisions, argues the same error we 

recognized in Mar, supra, 28 Cal.4th 1201, violated his federal constitutional 

rights to due process, effective assistance of counsel, and a reliable penalty phase 

trial. However, neither we nor the United States Supreme Court has decided 

whether such state law error also implicates the federal Constitution. (See 

Howard, supra, 51 Cal.4th at p. 30; Mar, supra, 28 Cal.4th at p. 1225, fn. 7.) We 

need not decide the issue in this case. As this opinion explains, the record 

affirmatively dispels any inference of prejudice under Brown, supra, 46 Cal.3d 

432. For the same reason, the People have satisfied their burden under Chapman, 

supra, 386 U.S. 18, to show that any federal errors are harmless beyond a 

reasonable doubt. (See Howard, at p. 30; see also People v. Gonzalez (2006) 38 

Cal.4th 932, 961 [“ ‘Brown’s “reasonable possibility” standard and Chapman’s 

“reasonable doubt” test . . . are the same in substance and effect.’ ”].) Finally, as 

defendant’s counsel acknowledged at oral argument, we have held that a court’s 

abuse of discretion in requiring use of a stun belt is not structural in nature and is 

not reversible per se. (Howard, at p. 30, fn. 6.)

B. Guilt Phase Issue

First Degree Murder Conviction and Robbery-Murder SpecialCircumstance Finding

The murder count and the sole special circumstance allegation were tried on 

the theory that defendant killed Monique Cleveland while robbing or attempting to 

rob Robert Cleveland. (Former § 190.2, subd. (a)(17)(i), now § 190.2, subd. 

(a)(17)(A).) The prosecution’s special circumstance verdict form, however, 
26

specified robbery only, and omitted reference to attempted robbery. The jury 

returned that form, which expressly stated that the murder was committed while 

defendant was engaged in the commission of a robbery. Defendant claims the 

evidence fails to support the jury’s robbery-murder special-circumstance finding, 

because there is no evidence that anything was actually taken from Robert. 

Hence, he urges reversal of that finding, the first degree murder conviction, and 

the death judgment.

“ ‘On appeal, “ ‘we review the entire record in the light most favorable to 

the judgment to determine whether it contains substantial evidence — that is, 

evidence that is reasonable, credible, and of solid value — from which a 

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ 

[Citation.]” [Citation.] In conducting such a review, we “ ‘presume[] in support 

of the judgment the existence of every fact the trier could reasonably deduce from 

the evidence.’ [Citation.]” [Citations.] “Conflicts and even testimony which is 

subject to justifiable suspicion do not justify the reversal of a judgment, for it is 

the exclusive province of the trial judge or jury to determine the credibility of a 

witness and the truth or falsity of the facts upon which a determination depends. 

[Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look 

for substantial evidence.” [Citation.] These same principles apply to review of 

the sufficiency of the evidence to support a special circumstance finding. 

[Citations.]’ [Citation.]” (People v. Harris (2013) 57 Cal.4th 804, 849.) The 

federal standard of review is in accord. (People v. Rodriguez (1999) 20 Cal.4th 1, 

11, relying on Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)

We assume for the purposes of argument that the evidence was insufficient 

to establish that either defendant or his accomplices actually took anything from 

the Cleveland house. The prosecution, however, was under no obligation to prove 

that defendant had successfully completed a robbery, because both the first degree 
27

felony-murder conviction and the special circumstance finding could properly be 

premised on a finding that defendant had attempted to rob Robert. (See § 189; 

former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A).)

As the record discloses, it was made abundantly clear to the jury that the 

prosecution need only prove the murder had occurred during an attempted 

robbery. The information, which was read to the jury, alleged that defendant had 

committed murder while engaged in the commission or attempted commission of 

the crime of robbery. The jury received instructions on the elements of robbery 

and the elements of attempt. As to the charge of murder, the court instructed that 

the prosecution must prove “a human being was killed; . . . the killing was 

unlawful; and . . . the killing occurred during the commission or attempted

commission of a robbery.” (Italics added.) The court further instructed: “The 

specific intent to commit a robbery and the commission or attempted commission

of such crime must be proved beyond a reasonable doubt.” (Italics added.) As for 

the special circumstance allegation, the jury was instructed to determine whether 

the murder “was committed while the defendant was engaged in the commission 

or attempted commission of a robbery,” and was cautioned that the special 

circumstance is not established if “the robbery or attempted commission of a 

robbery was merely incidental to the commission of the murder.” (Italics added.) 

Finally, the prosecution emphasized in closing argument that an attempted robbery 

was sufficient to support the charges against defendant. While conceding “at best 

it’s murky whether they got dope or money from that house,” the prosecution 

correctly explained “there is no necessity that property is actually taken.”

Defendant acknowledges the evidence at trial was sufficient to prove 

Monique’s murder occurred during the attempted commission of a robbery. But, 

he argues, the special verdict form shows the jury expressly found true only that 

the murder was committed while defendant “was engaged in the commission of 
28

the crime of ROBBERY.” Thus, he reasons, the felony-murder conviction and the 

robbery-murder special-circumstance finding are invalid because the evidence is 

insufficient to prove a completed robbery. This contention is meritless.

The verdict form’s failure to reference an attempted commission of robbery 

did not serve to limit the charges against defendant. Nor did the jury’s return of 

that form restrict its finding to one of a completed robbery. “A verdict should be 

read in light of the charging instrument and the plea entered by the defendant. . . . 

[T]he form of the verdict generally is immaterial, so long as the intention of the 

jury to convict clearly may be seen. [Citations.]” (People v. Paul (1998) 

18 Cal.4th 698, 706-707; see also People v. Jones (1997) 58 Cal.App.4th 693, 710 

[“ ‘ “A verdict is to be given a reasonable intendment and be construed in light of 

the issues submitted to the jury and the instructions of the court.” ’ ”].) As 

indicated, both the prosecution and the court told the jury to return the verdict 

form if it found true the robbery-murder special-circumstance allegation, and the 

court repeatedly instructed that the allegation could be found true if the 

prosecution proved the murder had been committed during the commission or 

attempted commission of a robbery. In returning the verdict form, the jury clearly 

manifested its intention to find true the allegation charged. That the form did not 

describe all of the circumstances under which the allegation could be proved is, 

under these circumstances, merely a technical defect that may be disregarded 

because “ ‘ “the jury’s intent to convict of a specified offense within the charges is 

unmistakably clear, and the accused’s substantial rights suffered no prejudice.” ’ ” 

(People v. Jones (2003) 29 Cal.4th 1229, 1259.)

Defendant’s sufficiency of the evidence claim is rejected.
29

C. Penalty Phase Issues

1. Granting of Prosecution’s Challenge for Cause

At the penalty retrial, the trial court granted the prosecution’s request to 

excuse Prospective Juror J.C. for cause. Defendant contends this excusal violated 

the Sixth and Fourteenth Amendments to the federal Constitution under the 

standards established in Witherspoon v. Illinois (1968) 391 U.S. 510 

(Witherspoon) and Wainwright v. Witt (1985) 469 U.S. 412 (Witt). This claim is 

without merit.

Prospective Juror J.C.’s questionnaire responses indicated she had never 

given “much consideration” to the death penalty, although she believed it was 

imposed too often “against African-American males.” During voir dire, J.C. 

further explained her views, stating: “I wouldn’t say I’d be the first one to jump 

up and say give him the death penalty, no. You have to weigh options. But I 

don’t think I would be very likely to vote definitely for the death penalty.”

K.M. was in the same group of prospective jurors and was questioned in 

front of J.C. After ascertaining that gang members had recently killed K.M.’s 

cousin, the court asked if K.M. would “just keep flashing back to that situation” 

and whether that situation would “black out what you’re hearing in this trial?” 

K.M. responded, “It’s too fresh right now.” Because K.M. might have difficulty 

sitting through the proceedings, the parties stipulated to his excusal.

The prosecution thereafter asked the group of prospective jurors whether 

any of them did “not feel that they could in fact be a person who could participate 

in a verdict that will result in the death of [defendant],” and Prospective Juror J.C. 

raised her hand. When asked to explain her feelings about her ability to “be a 

juror in this case and to actually impose capital punishment,” J.C. stated: “I’m a 

widow. I’m a recent widow. 17 months ago I buried my husband. My husband 
30

died in my arms. I just can’t deal with death that well. No disrespect. I don’t 

want anything to do with this, sir.” The following exchange then occurred:

“[Prosecutor]: It would be a personal hardship for you?

“Prospective Juror [J.C.]: Very much so.

“[Prosecutor]: Like [Prospective Juror K.M.]?

“Prospective Juror [J.C.]: Very much so.”

The prosecution later moved to dismiss Prospective Juror J.C. for cause. 

The defense submitted, and the court granted the motion.

“The federal constitutional standard for dismissing a prospective juror for 

cause based on his or her views of capital punishment is ‘ “[w]hether the juror’s 

views would prevent or substantially impair the performance of his duties as a 

juror in accordance with his instructions and his oath.” ’ (Uttecht v. Brown (2007) 

551 U.S. 1, 7, citing [Witt, supra,] 469 U.S. [at p.] 424.)” (People v. Friend

(2009) 47 Cal.4th 1, 56.) “When the prospective juror’s answers on voir dire are 

conflicting or equivocal, the trial court’s findings as to the prospective juror’s state 

of mind are binding on appellate courts if supported by substantial evidence.” 

(People v. Duenas (2012) 55 Cal.4th 1, 10.)

The voir dire of Prospective Juror J.C. amply supports the trial court’s 

decision to excuse her. Although initially she gave little indication that anything 

would prevent her from serving as a juror, she later stated, clearly and 

unequivocally, that she would be impaired. J.C. raised her hand when asked 

whether anyone could not participate in a verdict sentencing defendant to death, 

and proclaimed she did not “want anything to do with this.” She also affirmed that 

her situation was similar to that of Prospective Juror K.M., who had indicated a 

recent tragedy would make him unable to listen to and weigh the evidence 

presented at trial. J.C.’s voir dire responses furnished substantial evidence of her 

inability to perform her duties as a juror.
31

To the extent defendant claims the trial court erred because Prospective 

Juror J.C. appeared impaired by the recent death of her husband and not by her 

views about capital punishment, defendant misunderstands Witt and Witherspoon. 

Those decisions limit the extent to which jurors may be excused for cause because 

of their views on capital punishment, but they do not hold such views are the only 

grounds on which a challenge for cause may be granted. (See Witt, supra, 469 

U.S. at pp. 421-424; Witherspoon, supra, 391 U.S. at pp. 522-523.) Whether 

J.C.’s expressed inability to perform the duties of a juror was due to the death of 

her husband, or was instead based on her general views about the death penalty, 

her responses affirmed she was unable to consider and render a death verdict if 

appropriate. The trial court did not err in excusing her for cause.

2. Admission of Defendant’s Postarrest Statement

Over defendant’s objection, the trial court allowed Los Angeles Police 

Officer Damon Aoki to give the following testimony at the penalty retrial. More 

than a month after the instant crimes, Officer Aoki approached defendant and 

several members of the 8 Trey gang who were drinking in public. Aoki took 

defendant into custody after he gave Aoki a false name. Although defendant gave 

another false name at the police station, a subsequent fingerprint check revealed 

defendant’s true identity and also the arrest warrant for the murder. At some 

point, defendant, who was handcuffed, told Aoki that “if he had had a gun” when 

the officers had stopped him, “he would have had to shoot it out with [them] due 

to the fact that he had two strikes.” Despite presenting this testimony to the jury, 

the prosecution made no mention of it during closing arguments.

Although the record is somewhat unclear, the trial court apparently 

concluded that defendant’s statement that he would have shot the arresting officers 

had he had a gun was admissible to show defendant’s lack of remorse about 
32

Monique Cleveland’s murder. On appeal, defendant maintains such evidence was 

irrelevant and highly prejudicial because postcrime evidence of remorselessness 

does not fit within any statutory sentencing factors. Thus, he claims, its admission 

violated both California law and his federal constitutional rights to due process, a 

fair trial, and a reliable penalty determination.

Although “[c]onduct or statements at the scene of the crime demonstrating 

lack of remorse may be consider[ed] in aggravation as a circumstance of the 

capital crime under section 190.3, factor (a),” “ ‘postcrime evidence of 

remorselessness does not fit within any statutory sentencing factor.’ ” (People v. 

Pollock (2004) 32 Cal.4th 1153, 1184.) Because such evidence is irrelevant to 

aggravation, it generally is inadmissible unless introduced to rebut evidence of 

remorse presented in mitigation. (Id. at pp. 1184-1185). Here, the People do not 

contend Officer Aoki’s testimony was admissible to demonstrate a lack of 

remorse.

Instead, the People invoke the settled rule that “ ‘ “a ruling or decision, 

itself correct in law, will not be disturbed on appeal merely because given for a 

wrong reason.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 976; see also People v. 

Brown (2004) 33 Cal.4th 892, 901 [“If a judgment rests on admissible evidence it 

will not be reversed because the trial court admitted that evidence upon a different 

theory, a mistaken theory, or one not raised below.”] The People assert that, even 

if Officer Aoki’s testimony was not admissible to show defendant’s lack of 

remorse, it was properly admitted to show his consciousness of guilt. Defendant 

counters that, given the events preceding his statements to Aoki and defendant’s

mention of his two strikes as the reason why he would want to shoot the arresting 
33

officers, it is unreasonable to infer anything about defendant’s supposed state of 

mind or his consciousness of guilt.10

Given the surrounding circumstances, including the fact that defendant 

falsely identified himself twice, a rational jury could view defendant’s statement

about shooting it out with the arresting officers as reflecting defendant’s 

knowledge that he had committed two very serious crimes and his strong desire to 

evade capture. (See People v. Russell (2010) 50 Cal.4th 1228, 1253-1255 

[defendant allegedly stated he would shoot the police if they came]; People v. 

Dabb (1948) 32 Cal.2d 491, 495, 500 [when stopped by police, defendant started 

shooting immediately].) Although the record does not disclose why defendant 

chose to verbalize his thoughts to Officer Aoki, the circumstance that defendant 

used the term “two strikes” does not extinguish its tendency to show 

consciousness of guilt of the two Cleveland shootings, particularly since defendant 

may not have known what information the police had at the time. Because 

evidence that a defendant committed the crimes charged is one of the most crucial 

“circumstances of the crime of which the defendant was convicted” (§ 190.3, 

factor (a)), admission of the challenged testimony was not error.11

 

10 Defendant bases this contention on the following alleged circumstances: 

His statement was made more than a month after the Cleveland shootings; neither 

the statement itself nor anything leading up to it refers to those crimes; the 

statement was made after defendant had been arrested for drinking in public, not 

for murder; the statement was made before defendant was informed there was a 

murder warrant, and there was a different warrant out for his arrest at the time.

11 Defendant’s derivative constitutional claims based on the introduction of 

this evidence fail to compel a different result. (People v. Lewis (2008) 43 Cal.4th 

415, 531.)
34

3. Admission of Evidence Concerning Victim’s Pregnancy

Over defendant’s objection, the trial court admitted testimony at the penalty 

retrial that Monique was approximately one month pregnant at the time of her 

death, as well as an autopsy photograph of the embryo. Defendant contends this 

was error because the evidence was irrelevant and unduly prejudicial. He further 

argues that admission of the evidence violated his rights under the Eighth and 

Fourteenth Amendments and their California counterparts. We are not persuaded.

“The Eighth Amendment to the federal Constitution permits the 

prosecution, in a capital case, to present evidence about the murder victim and the 

specific harm that the defendant caused as relevant to the jury’s penalty decision. 

[Citations.] In California, the prosecution may introduce evidence of the specific 

harm caused by a defendant’s crime at the penalty phase in aggravation as a 

circumstance of the crime (§ 190.3, factor (a)). [Citations.]” (People v. Jurado

(2006) 38 Cal.4th 72, 130-131 (Jurado).)

In Jurado, supra, 38 Cal.4th 72, we held that evidence of a murder victim’s 

pregnancy was admissible in the capital defendant’s penalty phase under section 

190.3, factor (a). (Jurado, at pp. 130-131.) In so holding, we rejected the 

defendant’s contention that the evidence was irrelevant and so unduly prejudicial 

as to require exclusion. As we explained, the circumstance that the defendant had 

ended “the life of a healthy 17-week-old fetus [the victim] was carrying was part 

of the harm caused by defendant’s crime and thus was a legitimate, though 

emotional, consideration for the jury in making its penalty decision.” (Id. at 

p. 131.) Under Jurado, the admissibility of such evidence does not turn on a 

defendant’s knowledge of the pregnancy, because facts concerning the victim that 

are admissible as circumstances of the crime “are not limited to those known to or 

reasonably foreseeable by the defendant at the time of the murder.” (Ibid.)
35

Consistent with Jurado’s analysis, we conclude the evidence of Monique’s 

pregnancy was properly admitted as one of the circumstances of defendant’s crime 

and, contrary to defendant’s suggestion, the mere fact of her pregnancy was not so 

unduly prejudicial as to require exclusion.12 That defendant terminated the 

existence of the one-month-old embryo Monique was carrying was undeniably a 

harm resulting from defendant’s crime and thus was a proper circumstance for the 

jury to weigh as part of its penalty deliberations. (Jurado, supra, 38 Cal.4th at 

pp. 130-131.)

Defendant contends Jurado’s analysis is not controlling here, because there 

was no evidence that anyone knew of Monique’s pregnancy. We cannot agree that 

the relevance of Monique’s pregnancy turns on whether it was known to anybody. 

Rather, its relevance stems from the circumstance that termination of Monique’s 

pregnancy was part of the specific harm caused by defendant’s crime, as well as 

the circumstance that the victim’s surviving family members will feel the impact 

of that crime, whether or not they knew of the pregnancy beforehand. (See 

Jurado, supra, 38 Cal.4th at pp. 130-131.)

Defendant complains there was no showing that Monique’s pregnancy was 

planned or wanted, or that her pregnancy would not have ended in a miscarriage or 

abortion. No matter. The evidence remained relevant and admissible without 

 

12 Defendant points out the trial court described the pregnancy evidence as 

“highly prejudicial.” The court, however, was merely commenting that the 

evidence was highly adverse to defendant’s case, a circumstance that would not 

preclude its admission. (See People v. Salcido (2008) 44 Cal.4th 93, 148, and 

cases cited.) Notably, the court overruled defendant’s Evidence Code section 352 

objection, specifically finding the pregnancy evidence would not create “a 

substantial danger of undue prejudice or confusing the issues or misleading the

jury.”
36

such showings, though defendant was free to argue these matters to the jury to 

lessen the impact of the aggravating evidence.

Defendant next argues the admission of the autopsy photograph of the 

embryo was erroneous and an abuse of discretion under Evidence Code section 

352. We disagree.

“A trial court has broader discretion to admit photographic evidence of the 

crime at the penalty phase than at the guilt phase. ‘This is so because the 

prosecution has the right to establish the circumstances of the crime, including its 

gruesome consequences (§ 190.3, factor (a)), and because the risk of an improper 

guilt finding based on visceral reactions is no longer present.’ ” (People v. Mills

(2010) 48 Cal.4th 158, 205.) “The prosecution [is] entitled to have the penalty 

jury consider the real-life consequences of defendant’s actions” and is not obliged 

to prove its case with “ ‘evidence solely from live witnesses.’ ” (People v. 

Solomon (2010) 49 Cal.4th 792, 842.)

Here, the embryo photograph was sufficiently relevant to justify its 

admission. As defendant appears to acknowledge, there was no evidence that 

Monique was noticeably pregnant. But Dr. Choi, who conducted the autopsy, 

discovered an embryo about 10 millimeters in length (less than 0.4 inch) in the 

victim’s uterus and determined she had been one month into a pregnancy at the 

time of her death. Thus, the photograph served to demonstrate the basis for Dr. 

Choi’s opinion concerning Monique’s pregnancy and constituted evidence of a 

specific harm caused by defendant, i.e., the termination of its existence. (See 

Jurado, supra, 38 Cal.4th at pp. 130-131.)

Moreover, we cannot say, either as a legal or a factual matter, that the 

photograph was inadmissible because it added nothing of substance to Dr. Choi’s 

testimony. First, it is settled that prosecutors are not required to prove their cases 

with evidence solely from live witnesses (People v. Solomon, supra, 49 Cal.4th at 
37

p. 842.) Second, and more to the point, the photograph had significant probative 

value in that it showed to the jury, more accurately than any testimony, the extent 

to which the embryo had begun to develop an identifiable head, spine, and 

extremities when its existence was extinguished. For some jurors, the photograph 

may have shown the embryo’s physical development was greater than what they 

gleaned from Dr. Choi’s testimony, while for other jurors, the extent of 

development may have been less than what they had expected. Thus, the 

photograph not only corroborated Dr. Choi’s testimony, but it assisted each juror’s 

understanding of it. (See ibid.) The prosecution was entitled to ask the jury to 

consider the photographic evidence of the embryo’s development in weighing the 

harm caused by defendant and the loss to the victim’s family.

Finally, the trial court did not abuse its discretion in determining the 

probative value of the photograph outweighed any prejudicial effect. (See Evid. 

Code, § 352.) The photograph, which we have reviewed, is neither gory nor 

particularly disturbing. Moreover, as displayed to the jury, it was “redacted” so as 

to show a tightly cropped picture of the embryo with minimal inclusion of the 

surrounding tissue. The image of the four-week-old embryo is nothing like those 

of fetuses at far more advanced stages of development, which in other jurisdictions 

were found to have been erroneously admitted. (E.g., McCarty v. State

(Okla.Crim.App. 2002) 41 P.3d 981 [where issue was viability of a 24-week fetus, 

photo of the fetus extracted from its mother’s body postmortem was misleading, 

highly inflammatory, and prejudicial]; Erazo v. State (Tex.Crim.App. 2004) 144 

S.W.3d 487 [erroneous admission of photo of a 28-week fetus required reversal 

and remand for determination of harm]; Rolle v. State (Tex.App. 2012) 367 

S.W.3d 746 [photo of a nearly six-month fetus erroneously admitted at guilt phase 

but found harmless].)
38

In sum, the photograph here was “neither unduly gruesome nor 

inflammatory,” nor was it “ ‘of such a nature as to overcome the jury’s 

rationality.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 650.) Accordingly, its 

admission at the penalty phase was not an abuse of discretion under Evidence 

Code section 352 and did not violate defendant’s constitutional rights.13

4. Admission of Autopsy Photograph of Monique Cleveland

During the penalty retrial, the prosecution sought to introduce an autopsy 

photograph of Monique in which her eyes were open. The prosecution wanted to 

use this photograph to illustrate Dr. Choi’s anticipated testimony that burn marks 

on one of Monique’s eyeballs indicated her eyes had been open when she was 

shot. In admitting the photograph over defendant’s objections, the court 

determined that the evidence was relevant to show Monique’s awareness of “her 

impending death at the hands of the defendant” and that it would not create a 

substantial danger of undue prejudice.

That Monique’s eyes were open at the time she was shot was a relevant 

circumstance of the crime (§ 190.3, factor (a)), and the photograph showing the 

burn marks on her eyeball assisted the jury in understanding Dr. Choi’s testimony 

on the matter (see People v. Solomon, supra, 49 Cal.4th at p. 842; People v. 

 

13 The prosecution referred to the embryo as a “baby” or an “unborn” child

several times during its closing argument. Citing these instances, defendant 

argues the prosecution “powerfully used the already potent photographic evidence, 

on top of the highly prejudicial testimony about the pregnancy itself, to make an 

emotionally-charged appeal to the jurors that was certain to have an inflammatory 

impact.” No basis for reversal appears. As discussed, Dr. Choi’s testimony and 

the cropped embryo photograph were relevant to the jury’s penalty decision and 

properly admitted. To the extent defendant asserts the prosecution’s various 

arguments were inflammatory and inappropriate, his failures to object and request 

admonitions forfeit review of the contention on appeal. (People v. Thomas (2012) 

54 Cal.4th 908, 943; People v. Hamilton (2009) 45 Cal.4th 863, 958.)
39

Brasure (2008) 42 Cal.4th 1037, 1054). The photograph was not unduly 

prejudicial simply because it demonstrated the manner in which defendant 

committed the crime. (See Brasure, at p. 1054.) Moreover, we have reviewed the 

photograph and find nothing especially gruesome or inflammatory about it. 

Accordingly, the court acted within its broad discretion in admitting the 

photograph, and defendant was not deprived of due process or a reliable capital 

sentencing determination. (See id. at pp. 1054-1055.)

5. Admission of Victim Impact Evidence of Defendant’s Prior Crimes

Over defendant’s objection, the trial court admitted victim impact evidence 

regarding defendant’s prior armed robbery and carjacking of Joseph Canada and 

his armed robbery at a drugstore involving store clerk Daila Llamas. Both Canada 

and Llamas testified about the fear they felt during the robberies and its lasting 

effect. Defendant claims the court erred in admitting such testimony under section 

190.3, factor (b) (factor (b)). Defendant is wrong.

Evidence is admissible under factor (b) when it shows that the defendant 

engaged in criminal activity that violated a penal statute and involved “ ‘the use or 

attempted use of force or violence or the express or implied threat to use force or 

violence’ . . . directed at a person.” (People v. Thomas (2011) 52 Cal.4th 336, 

363.) It is settled that “the circumstances of the . . . violent criminal conduct, 

including its direct impact on the victim or victims of that conduct, are admissible 

under factor (b).” (People v. Demetrulias (2006) 39 Cal.4th 1, 39; see People v. 

Jones (2012) 54 Cal.4th 1, 73 (Jones).) We decline defendant’s request to 

reconsider our case law and conclude the challenged evidence was properly 

admitted. Having so concluded, we reject defendant’s related claim that erroneous 

admission of the evidence contravened the Eighth Amendment. (See Demetrulias, 

at p. 40, fn. 15.)
40

6. Admission of Evidence of Prior Criminal Activity

As part of its case-in-chief, the prosecution introduced evidence of the 

following four instances of defendant’s prior criminal activity under factor (b): 

(1) his September 1994 arrest for being a felon in possession of a firearm; (2) his 

November 1995 fight with an inmate near the prison basketball court; (3) his June 

1995 participation in a gang-related prison melee; and (4) his involvement in an 

August 1995 incident in which he and two other inmates refused a prison guard’s 

order to “get down.” Defendant contends the admission of this evidence was error 

and violated his due process rights, because these incidents did not involve “the 

use or attempted use of force or violence or the express or implied threat to use 

force or violence.” (Factor (b).)

The record is unclear, but it appears defendant may not have made these 

particular objections to the evidence of the first three incidents. In any event, 

evidence generally is admissible under factor (b) if it shows the defendant engaged 

in criminal activity that violated a penal statute and involved “ ‘the use or 

attempted use of force or violence or the express or implied threat to use force or 

violence’ . . . directed at a person.” (People v. Thomas, supra, 52 Cal.4th at 

p. 363.) The evidence must be sufficient to “allow a rational trier of fact to find 

the existence of such activity beyond a reasonable doubt.” (People v. Griffin

(2004) 33 Cal.4th 536, 584.) For the reasons below, defendant’s contentions as to 

all four incidents lack merit.

(a) Defendant’s Arrest for being a Felon in Possession of a 

Firearm

Although “[p]ossession of a firearm is not, in every circumstance, an act 

committed with actual or implied force or violence” such that it would be 

admissible under factor (b), “[t]he factual circumstances surrounding the 

possession . . . may indicate an implied threat of violence.” (People v. Bacon 
41

(2010) 50 Cal.4th 1082, 1127.) As the testimony of two officers indicated, such 

circumstances were present here. Defendant was found in possession of a 

handgun during a stop of an automobile whose occupants were believed to be 

involved in gang-related activity. Defendant’s possession of this handgun was 

illegal because he was a convicted felon. When found on the seat where defendant 

had been sitting, the handgun was loaded with five rounds in the magazine and 

one in the chamber. On this record, “the jury legitimately could infer an implied 

threat of violence.” (People v. Dykes (2009) 46 Cal.4th 731, 777 [evidence of 

firearm possession properly admitted where its possession without a permit was 

illegal, gun was loaded and ready to use, and the defendant had used similar 

firearm in committing offense for which he was then on trial].)

(b) Defendant’s Fight with an Inmate Near the Basketball Court

Although the guard who witnessed the fight testified he did not know 

whether defendant was the aggressor, neither side offered any evidence suggesting 

that defendant’s participation in the fight was legally justified. “ ‘[W]here the 

prosecution’s evidence shows a jailhouse scuffle, the scene as witnessed does not 

suggest defendant may have been acting in self-defense, and defendant presents no 

evidence in mitigation, a finding of criminal assault is justified.’ ” (People v. 

Moore (2011) 51 Cal.4th 1104, 1136, quoting People v. Lucky (1988) 45 Cal.3d 

259, 291.) Hence, the case law supports submission of this incident to the jury.

(c) Defendant’s Involvement in Prison Melee Between Rival Gangs

With regard to the gang-related prison melee, the evidence indicated 

defendant might have had a legal justification for any assault he committed, or 

perhaps not.

On the one hand, the evidence showed the fight began when members of 

the 415 gang ran across the yard toward certain members of the Crips gang, of 
42

which defendant was a member. Given this evidence, defendant could plausibly 

claim he was acting in self-defense or in defense of another.

On the other hand, Officer Ghan, who witnessed the melee, testified that 

the day before there had been multiple fights between Crips members and 415 

members. On the day of the melee, Officer Ghan knew there was “trouble 

brewing” based on his observation of the prisoners’ “very unusual behavior” in the 

yard: Factions of both the Crips and the 415’s were milling around back and forth, 

and all other prisoners had vacated the area between these two groups. This 

testimony gave rise to a reasonable inference that the fight between the Crips and 

the 415’s had been prearranged, and that prisoners involved on both sides had 

engaged in “ ‘mutual combat’ . . . pursuant to mutual intention, consent, or 

agreement preceding the initiation of hostilities.” (People v. Ross (2007) 155 

Cal.App.4th 1033, 1045, italics omitted.) In this scenario, defendant’s 

participation in the mutual combat “may preclude reliance on self-defense to 

defeat a charge of assault, or similar offense, unless [he] took specific steps to 

desist from the combat.” (Id. at p. 1043, fn. 11; see also People v. Lucky, supra, 

45 Cal.3d at p. 291 [“Voluntary mutual combat outside the rules of sport is a 

breach of the peace, mutual consent is no justification, and both participants are 

guilty of criminal assault.”].) Thus, evidence of the incident was admissible, and 

it was for the jury to decide whether defendant’s participation in the melee was 

legally justified or whether violent criminal activity had been proven.

Accordingly, with respect to the above three incidents, the evidence was 

sufficient to permit the jury to find the existence of prior criminal activity beyond 

a reasonable doubt. As to these three incidents, we reject defendant’s claims of 

error and further reject his derivative constitutional claims. (See People v. Kipp 

(2001) 26 Cal.4th 1100, 1134.)
43

(d) Defendant’s Refusal to Obey Order

The evidence showed that defendant and two other inmates had temporarily 

refused a prison guard’s order to “get down,” and that one of the three inmates had 

said, “Fuck you. We don’t have to get down.” Even assuming such evidence did 

not demonstrate criminal activity involving the use or attempted use of force or 

violence, or the express or implied threat to use force or violence directed at a 

person, any error in its consideration by the jury was undoubtedly harmless. The 

evidence was not especially prejudicial, particularly since the guard acknowledged 

that the three inmates were not a “direct threat” to him, and the prosecution made 

no mention of the incident in its closing argument. In any case, given the properly 

admitted evidence of defendant’s cold-blooded murder of Monique and attempted 

murder of Robert, his prior armed robberies, and his violent and assaultive conduct 

in other prison incidents, there is no reasonable possibility that presentation of this 

nonviolent incident affected the verdict. (See People v. Jackson (1996) 13 Cal.4th 

1164, 1232 [nonviolent jail escape]; People v. Rodrigues (1994) 8 Cal.4th 1060, 

1169-1170 [threat to correctional officer]; Brown, supra, 46 Cal.3d at p. 449 [food 

riot, sexual misconduct, and possession of stolen wirecutters in jail].) Having 

rejected this state law claim, we likewise reject his derivative federal constitutional 

claims.

7. Alleged Prosecutorial Misconduct During Penalty Retrial Voir Dire

During voir dire of a panel that included three individuals who ultimately 

served as jurors, the prosecutor stated that defendant “sits here having been 

convicted of taking the life of another human being himself. That is a verdict that 

was rendered by a jury, and you must accept it as true.” (Italics added.) On 

appeal, defendant claims the prosecutor committed misconduct by falsely stating 

he had been convicted of having personally taken the life of another human being, 
44

when the prior jury’s verdict need not have been premised on a conclusion that 

defendant was the one who killed Monique.

“ ‘ “A prosecutor’s conduct violates the Fourteenth Amendment to the 

federal Constitution when it infects the trial with such unfairness as to make the 

conviction a denial of due process. Conduct by a prosecutor that does not render a 

criminal trial fundamentally unfair is prosecutorial misconduct under state law 

only if it involves the use of deceptive or reprehensible methods to attempt to 

persuade either the trial court or the jury.” [Citation.] When a claim of 

misconduct is based on the prosecutor’s comments before the jury, as all of [the] 

defendant’s claims are, “ ‘the question is whether there is a reasonable likelihood 

that the jury construed or applied any of the complained-of remarks in an 

objectionable fashion.’ ” [Citation.] To preserve a claim of prosecutorial 

misconduct for appeal, a defendant must make a timely and specific objection and 

ask the trial court to admonish the jury to disregard the improper argument. 

[Citation.]’ [Citation.] A failure to timely object and request an admonition will 

be excused if doing either would have been futile, or if an admonition would not 

have cured the harm. [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 

1205.)

Defendant unsuccessfully objected to the prosecutor’s statement as 

“improper voir dire.” The People, however, assert forfeiture of the claim because 

he failed to object on the precise ground asserted here.

Even assuming the claim had been preserved, we find no basis for reversal. 

While the prosecutor’s brief comment was misleading as to the guilt findings, the 

question of defendant’s precise role in Monique’s murder was left for the penalty 

jury to decide. After both sides rested their cases, the trial court specifically 

instructed the jury to “determine what facts have been proved from the evidence 

received in the trial and not from any other source.” The court emphasized to the 
45

jury that it “must not be biased” against defendant because he had been convicted 

of this offense, and that such circumstance was not “evidence of what your verdict 

must be.” The court also instructed that the attorneys’ statements were not 

evidence.14 Consistent with these instructions, the parties based their closing 

arguments entirely on the evidence presented, and as relevant here, focused on the 

strengths and weaknesses of the prosecution’s theory that defendant personally 

shot and killed Monique. The defense urged the jury, without objection from the 

prosecution, to consider the concept of lingering doubt and to carefully scrutinize 

whether any physical evidence actually supported the prosecution’s theory. Given 

these circumstances, there is no reason to think that the prosecutor’s brief 

comment during voir dire would have affected the penalty deliberations of the 

three jurors who heard it. Thus, the challenged comment did not infect the trial 

with unfairness or mislead the jury as to its role in sentencing. (People v. Linton, 

supra, 56 Cal.4th at p. 1205.) Nor is there a reasonable likelihood that the jury 

applied the remark in an improper or erroneous manner. (Ibid.)

Finally, defendant contends the challenged comment was part of a pattern 

of prosecutorial misconduct, citing six other incidents in which the prosecutor 

allegedly acted inappropriately. Defendant raises a separate challenge to one of 

these six incidents, which we discuss below. (See pt. II.C.8., post [examination of 

Kevin Jackson].) To the extent, however, that defendant challenges the remaining 

five incidents as additional examples of prosecutorial misconduct, he has forfeited 

review of each of these claims by his failures to object and request admonitions 

below. (People v. Linton, supra, 56 Cal.4th at p. 1205.) In any event, none of the 

 

14 We find no merit to defendant’s contention that his inability to crossexamine the prosecutor about the challenged remark implicated his Sixth 

Amendment right to cross-examine the witnesses against him. 
46

cited incidents related to the prior jury’s findings, and none affects our conclusion 

that the prosecution’s fleeting comment in voir dire did not deprive defendant of a 

fair trial.

8. Alleged Prosecutorial Misconduct During Examination of Kevin 

Jackson

During defense counsel’s cross-examination of prosecution witness Kevin 

Jackson, counsel impeached Jackson with certain testimony he gave while being 

cross-examined previously during the guilt phase. Jackson responded: “I was 

allowing you to put words in my mouth then.” When counsel asked if the district 

attorney had “put any words into your mouth,” Jackson answered no.

On redirect examination, the prosecution asked Jackson whether he had 

spoken with defense counsel since testifying at the guilt phase. Jackson 

responded: “I talked to him I believe Saturday of this month.” In response to 

further prosecutorial questioning, Jackson stated he felt defense counsel had tried 

to influence his testimony, but was not successful in doing so.15

On recross-examination, defense counsel asked Jackson: “What did I say 

to you to try to influence your testimony?” Jackson responded: “You asked me 

if — if I say anything nice about [defendant] would the D.A. pull back the deal 

that they have for me. And you asked me was there anything nice that I could say 

about [defendant]. You told me that — that [defendant’s] co-defendant had 

 

15 The reporter’s transcript reflects the following interchange between the 

prosecutor and Jackson: “[Question:] Did [defense counsel] say anything to you 

to try to influence your testimony here? [Answer:] He just asked me a few 

questions about testimony I give today. [Question:] I’m not asking you what he 

said. I’m just asking you if you felt he was trying to influence your testimony. 

[Answer:] Yeah. Yes. [Question:] Did he succeed in influencing your testimony? 

[Answer:] No.”
47

confessed to the murder but the D.A. just wanted to put [defendant] away for 

murder.”

In response to the prosecution’s further redirect questioning, Jackson 

indicated defense counsel had told him that someone other than defendant had 

confessed to Monique’s murder and that defendant was facing the death penalty. 

When asked if he thought counsel said such things to influence his testimony, 

Jackson answered in the affirmative.16

During the course of these exchanges, the defense registered no objection to 

any of the prosecution’s questions. Subsequently, defense counsel moved for a 

mistrial, explaining, “[F]or the prosecutor . . . to put those kind of questions to 

Mr. Jackson in front of this jury and have him respond in a positive way I believe 

impugns my character, certainly is a cause for concern, or should be a cause of 

concern to [defendant] that this jury has now lost faith and credibility in me as his 

counsel.” The court denied the mistrial motion, stating, “[I]t appears to the Court 

. . . that the character and credibility and ethicality of the defense counsel has not 

been impugned.” The court, however, expressed its willingness, “in the event that 

[defense counsel] feels that his credibility is in any way impugned, for the Court to 

instruct the jury that the credibility . . . of counsel for either side is simply not in 

issue, that counsel have a duty to represent their respective positions to the best of 

their ability and in any manner ethically proper for them to do, that there has been, 

in the opinion of the Court, no indication of any improper tactic or activity on the 

 

16 “[Question:] This defense attorney told you that someone other than 

[defendant] confessed to this murder? [Answer:] Yes. [Question:] Do you have 

any way of knowing if that’s a lie? [Answer:] No. [Question:] Did you think 

that was intended to influence your testimony against [defendant]? [Answer:] 

Yes. [Question:] Did he also tell you that [defendant] was facing the death penalty 

in an effort to influence you against testifying here? [Answer:] Yes.”
48

part of either counsel, and it shall not and must not enter into their deliberations 

. . . .” The defense declined the court’s offer to give a curative instruction.

Defendant now claims the prosecution committed misconduct in eliciting 

testimony from Kevin Jackson regarding his meeting with defense counsel and in 

insinuating that counsel had lied during that meeting in order to get Jackson to 

change his testimony. Even were we to overlook defendant’s failure to 

immediately object to the questioning as it was occurring, we will not disregard 

his refusal to accept the trial court’s offer to admonish the jury.

Contrary to defendant’s claim, a request for an admonishment would not 

have been futile because the trial court explicitly stated it was willing to give one. 

Moreover, we reject defendant’s contention that the court’s proposed admonition 

would have been ineffectual. At worst, the prosecution’s questioning might have 

been understood to insinuate that defense counsel had lied to Jackson in an 

unethical effort to get him to slant his testimony in defendant’s favor. The 

proposed admonition would have addressed that insinuation directly by instructing 

the jury that neither counsel had engaged in any improper tactic or activity and 

that neither counsel’s credibility was at issue. Because such an admonition would 

have been more than sufficient to cure any possible harm caused by the 

prosecution’s vague insinuation, defendant’s refusal of the court’s offer renders 

the claim of misconduct unreviewable. (People v. Valdez (2004) 32 Cal.4th 73, 

124-125; see People v. Linton, supra, 56 Cal.4th at p. 1205.) For the same 

reasons, the trial court did not err in denying defendant’s motion for a mistrial. 

(Cf. People v. Collins (2010) 49 Cal.4th 175, 198 [“ ‘A mistrial should be granted 

if the court is apprised of prejudice that it judges incurable by admonition or 

instruction.’ ”].)
49

9. Failure to Instruct on Meaning of “Personal Use” of a Firearm

At the outset of the penalty retrial, the clerk read to the jury the verdicts 

previously returned by the jury during the guilt phase of the trial. Included among 

those verdicts was the jury’s finding that defendant, “in the commission of the 

offense charged under Count I of the Information [first degree murder], did 

personally use a firearm, to wit, a handgun, within the meaning of Penal Code 

Sections 12022.5(a) and 1192.7(c)(8).” Defendant did not ask the court to further 

clarify the meaning of this or any other finding.

Defendant contends the trial court had a duty to instruct the penalty retrial 

jury, sua sponte, on the meaning of “personal use” of a firearm, as defined in 

CALJIC No. 17.19. (See People v. Mayfield (1997) 14 Cal.4th 668, 773 [“Even in 

the absence of a request, a trial court must instruct on general principles of law 

that are commonly or closely and openly connected to the facts before the court

and that are necessary for the jury’s understanding of the case.”].) He claims the 

jury could have misconstrued the guilt phase jury’s “personal use” finding as a 

specific determination that defendant had fired the handgun in the course of 

committing the murder, even though the finding could have been based on some 

other firearm use by defendant, such as his intentional display of a firearm in a 

menacing manner, or his intentional striking or hitting of a human being with it. 

(See CALJIC No. 17.19.) Because the previous jury may have found defendant 

guilty of murder and found true the robbery-murder special circumstance without 

necessarily finding he was the actual shooter, defendant contends a clarifying 

instruction was essential to a correct understanding of the personal use finding.

Defendant misinterprets our precedent regarding a trial court’s sua sponte 

duty to instruct the jury on principles of law. Significantly, he fails to cite any 

authority requiring a court, at the penalty phase, to instruct sua sponte regarding a 

verdict or finding rendered at the guilt phase. Of course, a sua sponte duty to 
50

instruct on particular principles of law may arise when the jury itself is called upon 

to apply those principles. (E.g., People v. Breverman (1998) 19 Cal.4th 142, 155-

156 [lesser included offenses]; People v. Prettyman (1996) 14 Cal.4th 248, 266-

267 [identification and description of uncharged target offenses under 

prosecution’s theory of criminal liability].) But here, the jury’s sole function at 

the penalty retrial was to decide whether defendant should be sentenced to death 

or to life imprisonment without possibility of parole, and its charge did not include 

making a personal use finding. Accordingly, instructions on the meaning of 

“personal use” of a firearm, as defined in CALJIC No. 17.19, were not necessary 

for the jury’s understanding of the case.

This conclusion is consistent with the rule that applies when the 

prosecution offers evidence in aggravation of a defendant’s violent criminal 

activity. “In that context, we have long held that ‘[a] trial court has no sua sponte 

duty to instruct on the elements of “other crimes” offered under section 190.3, 

factor (b).’ [Citation.] Such instructions are ‘not vital to a proper consideration of 

the evidence on the issue of penalty’ [citation] because ‘the ultimate question for 

the sentencer is simply whether the aggravating circumstances, as defined by 

California’s death penalty law [citation], so substantially outweigh those in 

mitigation as to call for the penalty of death, rather than life without parole’ 

[citation].” (People v. Cottone (2013) 57 Cal.4th 269, 294.) As is often the case 

in that context, defense counsel here may reasonably have decided, for tactical 

reasons, against overloading the jury with instructions to illuminate the guilt phase 

verdict and findings, so that the jury might better focus on the central question of 

whether defendant deserved to live or die. (See ibid.)

To the extent defendant contends the trial court’s failure to explain the 

meaning of the guilt phase jury’s personal use finding was federal constitutional 

error, such claim also lacks merit. Contrary to defendant’s suggestion, there is no 
51

“reasonable likelihood” the penalty retrial jury understood the court’s instructions 

(or lack thereof) “in a way that prevent[ed] the consideration of constitutionally 

relevant evidence” regarding the shooting of Monique Cleveland. (Boyde v. 

California (1990) 494 U.S. 370, 380.) As discussed more fully in part II.C.7, ante, 

no one argued or even suggested that the personal use finding constrained the 

jury’s ability to consider the evidence presented at the penalty retrial. To the 

contrary, both the court and the parties emphasized to the jury that it must make its 

own determination, based on the evidence before it, as to whether defendant 

personally shot and killed Monique. (Ibid.)

For similar reasons, the court’s failure to instruct on the meaning of the 

guilt phase jury’s personal use finding did not violate due process or render the 

penalty retrial fundamentally unfair. (See Estelle v. McGuire (1991) 502 U.S. 62, 

72-73.) Even assuming the jury understood the finding in the manner defendant 

suggests, defendant was not deprived of a fair proceeding. There is no reason to 

think the jury would have given this factor undue weight or any weight at all. As 

noted, the court instructed the jury to make its own determination of the facts and 

to not be biased against defendant because of his conviction. (See ante, at pt. 

II.C.7.) “We presume jurors ‘generally understand and follow instructions.’ ” 

(People v. Myles (2012) 53 Cal.4th 1181, 1212.)17

 

17 Although, as defendant observes, the prosecution did represent in its 

opening statement and closing argument that defendant was the one who shot 

Monique, it did so entirely on the basis of the evidence presented during the 

penalty retrial. The defense countered by poking holes in the prosecution’s theory 

of the case, also based on the evidence before the jury. Given the court’s 

instructions and the parties’ respective arguments on the matter, there is no danger 

that the jury misunderstood its obligation to make its own evaluation of the facts 

or that the jury was unfairly influenced by any erroneous understanding of the 

previous jury’s factual determinations.
52

10. Alleged Instructional Error

Defendant claims the trial court erred in refusing or failing to give a number 

of his specially tailored penalty phase instructions. As we have held repeatedly, 

“the CALJIC penalty phase instructions ‘ “ ‘are adequate to inform the jurors of 

their sentencing responsibilities in compliance with federal and state constitutional 

standards.’ [Citation.]” ’ ” (Jones, supra, 54 Cal.4th at p. 74.) Defendant 

acknowledges our repeated rejection of claims nearly identical to those he presents 

here, but asks us to reconsider our prior holdings. We decline to do so.

Defendant first argues the trial court erred in refusing to instruct the jury 

that it must consider death to be a more serious penalty than a sentence of life in 

prison without the possibility of parole. We disagree. Pursuant to CALJIC No. 

8.88, the jury was instructed: “To return a judgment of death, each of you must be 

persuaded that the aggravating circumstances are so substantial in comparison 

with the mitigating circumstances that it warrants death instead of life without 

parole.” We “repeatedly have held that ‘there is no legal requirement that penalty

phase jurors be instructed that death is the greater punishment, because the penalty 

trial itself and the jury instructions given, particularly CALJIC No. 8.88, make 

clear that the state views death as the most extreme penalty. [Citations.]’ 

[Citation.]” (Jones, supra, 54 Cal.4th at p. 81; see People v. Thomas, supra, 

52 Cal.4th at pp. 361-362.)

Defendant next claims the trial court erred in refusing to instruct the jury 

that it “must not consider as an aggravating factor the existence of any special 

circumstance if you have already considered the facts of the special circumstance 

as a circumstance of the crimes for which the defendant had been convicted.” 

“When requested, a trial court should provide such an instruction. [Citation.]” 

(People v. McKinnon (2011) 52 Cal.4th 610, 694.) But “CALJIC No. 8.85 does 

not inherently encourage the jury to ‘double count’ the same facts” (McKinnon, at 
53

p. 695), and “ ‘the absence of an instruction cautioning against double counting 

does not warrant reversal in the absence of any misleading argument by the 

prosecutor’ ” (People v. Young (2005) 34 Cal.4th 1149, 1225-1226). Here, the 

prosecution made no such misleading arguments. Therefore, we find “ ‘no 

reasonable likelihood that the jury unconstitutionally applied CALJIC No. 8.85.’ 

[Citation.]” (Jones, supra, 54 Cal.4th at p. 77.)

Defendant also claims the trial court erred in refusing to give a proposed 

instruction informing the jury that its task at the penalty phase differed from that at 

the guilt phase, insofar as a penalty phase juror must render an “individualized,

moral determination.” Because this instruction was duplicative of other 

instructions given to the jurors — including instructions that they could consider 

“any sympathetic or other aspect of the defendant’s character or record” (CALJIC 

No. 8.85) and were “free to assign whatever moral or sympathetic value you deem 

appropriate to each and all of the various factors you are permitted to consider” 

(CALJIC No. 8.88) — the trial court did not err. (Jones, supra, 54 Cal.4th at 

pp. 74-75; see People v. Butler (2009) 46 Cal.4th 847, 874.)

Nor did the trial court err in refusing to give defendant’s proposed 

instructions defining what sort of evidence could be considered as mitigation. The 

first proposed instruction listed evidence the defense had introduced and stated 

such evidence could be considered in mitigation. This instruction was properly 

denied. Although instructions pinpointing the defense’s legal theories might be 

appropriate, a defendant is not entitled to instructions that simply highlight facts 

favorable to him. (See People v. Cook (2007) 40 Cal.4th 1334, 1364; People v. 

Gutierrez (2002) 28 Cal.4th 1083, 1159.) The other proposed instructions —

which emphasized the unlimited scope of the mitigating factors of which the jury 

could take account — “were duplicative of other instructions given, particularly 
54

CALJIC Nos. 8.85, factor (k) and 8.88.” (Jones, supra, 54 Cal.4th at p. 82.) The 

court did not err in declining to give them. (Id. at pp. 82-83; Cook, at p. 1364.)

Likewise, the trial court did not err in refusing to instruct the jury that it had 

the discretion to return a verdict of life without the possibility of parole regardless 

of the evidence presented at the penalty phase. As we have previously held, such 

an instruction is not required because CALJIC No. 8.88 adequately conveys this 

principle. (See People v. McKinnon, supra, 52 Cal.4th at pp. 695-696.) For the 

same reason, the court did not err in failing to instruct sua sponte that if the jury 

found that mitigation outweighed aggravation, it must return a verdict of life 

without the possibility of parole. (People v. Linton, supra, 56 Cal.4th at p. 1211.)

The trial court also did not err in refusing to give defendant’s proposed 

instruction defining the term “life without the possibility of parole.” “[A] 

California penalty jury is instructed that one of the sentencing choices is ‘life 

without parole,’ and . . . this is a common phrase requiring no further definition.” 

(People v. Whisenhunt (2008) 44 Cal.4th 174, 226.)

Nor did the court err in declining to give defendant’s proposed instructions 

regarding the role that mercy could play in the jury’s determination of defendant’s 

sentence. As noted, the jury was instructed that it could consider as mitigating any 

“circumstance which extenuates the gravity of the crime even though it is not a 

legal excuse for the crime and any sympathetic or other aspect of the defendant’s 

character or record that the defendant offers as a basis for a sentence less than 

death, whether or not related to the offense for which he is on trial” (CALJIC 

No. 8.85), and that it was “free to assign whatever moral or sympathetic value you 

deem appropriate to each and all of the various factors you are permitted to 

consider” (CALJIC No. 8.88). “We repeatedly have held that a trial court need 

not give a specific ‘mercy instruction,’ even if requested, when the above quoted 
55

instructions are given [citation], and we reaffirm that conclusion here.” (People v. 

Hughes (2002) 27 Cal.4th 287, 403.)

Finally, defendant claims the trial court erred in refusing to give his 

proposed instruction on lingering doubt. “Although it is proper for the jury to 

consider lingering doubt, there is no requirement, under federal or state law, that 

the jury specifically be instructed that it may do so, even if such an instruction is 

requested by the defendant.” (Jones, supra, 54 Cal.4th at p. 84, and cases cited.) 

Such an instruction was not required here, because the “[i]nstructions to consider 

the circumstances of the crime (§ 190.3, factor (a)) and any other circumstance 

extenuating the gravity of the crime (id., factor (k)), together with defense 

argument highlighting the question of lingering or residual doubt, suffice to 

properly put the question before the penalty jury.” (People v. Demetrulias, supra, 

39 Cal.4th at p. 42.)

11. Denial of Application to Modify Verdict

More than two months after the jury returned a verdict of death, the trial 

court denied defendant’s automatic application for modification of the death 

sentence. Although defendant contends the denial was improper, he failed to 

object below to any aspect of the court’s reasoning in denying the application. 

Defendant has therefore forfeited review of this claim. (People v. Zambrano

(2007) 41 Cal.4th 1082, 1183.)

In any event, defendant’s contentions lack merit. In ruling on an 

application for modification of a death verdict, “the judge shall review the 

evidence, consider, take into account, and be guided by the aggravating and 

mitigating circumstances referred to in Section 190.3, and shall make a 

determination as to whether the jury’s findings and verdicts that the aggravating 

circumstances outweigh the mitigating circumstances are contrary to law or the 
56

evidence presented. The judge shall state on the record the reasons for his 

findings.” (§ 190.4, subd. (e).) “ ‘On appeal, we subject a ruling on such an 

application to independent review: the decision resolves a mixed question of law 

and fact; a determination of this kind is generally examined de novo [citation]. Of 

course, when we conduct such scrutiny, we simply review the trial court’s 

determination after independently considering the record; we do not make a de 

novo determination of penalty.’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 

1114, 1211 (Carter).)

The court’s lengthy statement of reasons demonstrates it understood and 

complied with its obligation under section 190.4, subdivision (e). Defendant 

contends the court erred in considering in aggravation certain acts of violence 

which the court found had not been proved beyond a reasonable doubt. (See 

People v. Michaels (2002) 28 Cal.4th 486, 539 [evidence of a defendant’s prior 

criminal activity may not be considered as an aggravating factor unless it is proven 

“beyond a reasonable doubt that the conduct occurred and constituted a crime”].) 

But notably, in describing the evidence of defendant’s violent acts in prison and 

jail, the court stated: “The Court is not convinced that the evidence as to these

acts rises to the level of proof beyond a reasonable doubt. Nevertheless, 

[defendant] was certainly a ready and willing participant in violent confrontations 

in custodial settings and tended to be very much in the ‘thick of things’ in such 

activities.” The court’s statements regarding its consideration of these custodial 

incidents are somewhat ambiguous and could likely have been clarified had 

defendant offered a contemporaneous objection. However, the court’s comments 

during the course of its extensive review of the aggravating and mitigating 

evidence presented at trial demonstrate there is no reasonable possibility that any 

error affected its ruling. (See Carter, supra, 36 Cal.4th at p. 1211.) For the same 
57

reason, any asserted federal constitutional error was harmless beyond a reasonable 

doubt. (People v. Rogers (2006) 39 Cal.4th 826, 911.)

Defendant further contends the trial court contravened our holding in

People v. Davenport (1985) 41 Cal.3d 247, 289, by improperly treating the 

absence of a mitigating factor as an aggravating factor. We cannot agree. In 

discussing potential mitigating evidence of defendant’s capacity to appreciate the 

criminality of his conduct (see § 190.3, factor (h)), the court stated: “There was 

none. There is no doubt that the defendant was able to and did understand the 

criminal wrongfulness of his conduct. Not only that, the defendant bragged the 

next day to Kevin Jackson that he had killed the two victims the previous day.” 

Nothing in this statement remotely suggests that the court improperly considered 

the lack of section 190.3, factor (h) evidence to be aggravating. Instead, the court 

plainly concluded that defendant’s ability to appreciate the criminality of his 

conduct was not a factor in mitigation, a conclusion it supported by reference to 

defendant’s statements to Kevin Jackson.

12. Lack of Intracase Proportionality

After the penalty retrial, the trial court denied defendant’s separately filed 

motion to bar the death penalty based on state and federal constitutional “intracase proportionality principles and in the interest of justice.” Defendant renews 

his contentions here.

“ ‘ “To determine whether a sentence is cruel or unusual as applied to a 

particular defendant, a reviewing court must examine the circumstances of the 

offense, including its motive, the extent of the defendant’s involvement in the 

crime, the manner in which the crime was committed, and the consequences of the 

defendant’s acts. The court must also consider the personal characteristics of the

defendant, including age, prior criminality, and mental capabilities. [Citation.] If 
58

the court concludes that the penalty imposed is ‘grossly disproportionate to the 

defendant’s individual culpability’ [citation], or, stated another way, that the 

punishment ‘ “ ‘shocks the conscience and offends fundamental notions of human 

dignity’ ” ’ [citation], the court must invalidate the sentence as unconstitutional.” 

[Citation.]’ [Citation.]” (Wallace, supra, 44 Cal.4th at p. 1099.)

Defendant asserts that, contrary to the evidence presented at his trial, two of 

his partners in the underlying crimes, Carl Bishop and Henry Jones, made 

statements to investigators suggesting that a fourth individual — Leon West, then 

at large — had been the one who had actually shot Monique Cleveland. These 

statements, which were not made under oath or subject to cross-examination, 

reflected vagueness on Bishop’s part as to whether he actually saw West shoot 

Monique,18 as well as an acknowledgement by Jones that he was in a different 

room when that shooting occurred. Not only did the trial court find Bishop’s 

hearsay statements unreliable, but it remains the case that Kevin Jackson’s trial 

testimony established, without contradiction, that defendant had boasted he shot 

Monique. In any event, as the court observed, even if defendant were only 

vicariously liable for Monique’s murder, he and his three cohorts “were all 

together in the criminality that preceded the execution-style killing” of the newly 

expecting victim, and defendant himself began the violence by shooting Robert 

Cleveland in the face at close range.

Defendant also contends the extremely difficult childhood he endured 

militates against imposition of the death penalty. Although the circumstances of 

defendant’s early childhood were difficult and sympathetic, the traumatic events 

 

18 Although Carl Bishop claimed at one point that he “[knew] for a fact” that 

Leon West shot the woman, he thereafter stated repeatedly that it was very dark in 

the hallway, that he had heard a shot, and that he had seen only a flash in the dark.
59

he experienced occurred nearly 17 years before the instant crimes and do not 

render his death sentence unconstitutional. Given the circumstances of 

defendant’s participation in the instant crimes and his prior violent criminality, 

defendant’s death sentence does not shock the conscience or offend fundamental 

notions of human dignity; nor is the sentence grossly disproportionate to his 

individual culpability. (Wallace, supra, 44 Cal.4th at p. 1099; see Tison v. 

Arizona (1987) 481 U.S. 137, 158 [“major participation in the felony committed, 

combined with reckless indifference to human life, is sufficient to satisfy the . . . 

culpability requirement” for imposition of capital punishment in felony-murder 

cases].)19

13. Constitutional Challenges to California’s Death Penalty Statute

Defendant raises a number of challenges to California’s capital sentencing 

scheme. We have previously rejected each of defendant’s contentions, and we 

adhere to those decisions, as follows.

Penal Code section 190.2 is not impermissibly broad and adequately 

narrows the class of murders for which the death penalty may be imposed. (Jones, 

supra, 54 Cal.4th at p. 85; People v. Thomas (2011) 51 Cal.4th 449, 506.) Section 

190.3, factor (a), which defines the circumstances of the crime as one of the 

factors a jury may consider in determining the appropriate penalty, does not allow 

for the arbitrary and capricious imposition of the death penalty. (Jones, supra, at 

 

19 We note defendant also urged the trial court to reduce his sentence on the 

ground that the prosecution did not seek the death penalty against the two other 

individuals charged with participating in the crimes of violence against the 

Clevelands. That contention lacked merit. “[I]ntracase proportionality review is 

‘an examination of whether defendant’s death sentence is proportionate to his 

individual culpability, irrespective of the punishment imposed on others.’ 

[Citation.]” (People v. Hill (1992) 3 Cal.4th 959, 1014; see People v. Riel (2000) 

22 Cal.4th 1153, 1223.)
60

pp. 85-86; Thomas, at p. 506; People v. Cowan (2010) 50 Cal.4th 401, 508 

(Cowan).)

“ ‘Allowing consideration of unadjudicated criminal activity under [section 

190.3,] factor (b) is not unconstitutional and does not render a death sentence 

unreliable. [Citations.]’ [Citation.]” (Jones, supra, 54 Cal.4th at p. 87.)

“The trial court was not constitutionally required to inform the jury that 

certain sentencing factors were relevant only in mitigation, and the statutory 

instruction to the jury to consider ‘whether or not’ certain mitigating factors were 

present did not impermissibly invite the jury to aggravate the sentence upon the 

basis of nonexistent or irrational aggravating factors. [Citations.]” (People v. 

Morrison (2004) 34 Cal.4th 698, 730; see Jones, supra, 54 Cal.4th at p. 87.)

“ ‘ “The Eighth and Fourteenth Amendments do not require that a jury 

unanimously find the existence of aggravating factors or that it make written 

findings regarding aggravating factors.” [Citations.] “[N]either the cruel and 

unusual punishment clause of the Eighth Amendment, nor the due process clause 

of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt 

that aggravating circumstances exist or that aggravating circumstances outweigh 

mitigating circumstances or that death is the appropriate penalty. [Citations.]” ’ 

[Citation.] Moreover, the statute ‘ “is not unconstitutional because it does not 

contain a requirement that the jury be given burden of proof or standard of proof 

instructions for finding aggravating and mitigating circumstances in reaching a 

penalty determination.” ’ [Citation.] . . . Nothing in the United States Supreme 

Court’s recent decisions interpreting the Sixth Amendment’s jury trial guarantee 

(e.g., Cunningham v. California (2007) 549 U.S. 270; Ring v. Arizona (2002) 536 

U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) compels a different 

answer to these questions. [Citations.]” (Cowan, supra, 50 Cal.4th at pp. 508-

509; see Jones, supra, 54 Cal.4th at p. 86.)
61

“There is no violation of the equal protection of the laws as a result of the 

statutes’ asserted failure to provide for capital defendants some procedural 

guarantees afforded to noncapital defendants.” (People v. Alexander (2010) 

49 Cal.4th 846, 938; see People v. Thomas, supra, 51 Cal.4th at p. 507.)

Contrary to defendant’s contention, intercase proportionality review is not 

required by the Eighth Amendment to the federal Constitution. (Jones, supra, 

54 Cal.4th at p. 87; People v. Thomas, supra, 51 Cal.4th at p. 506.)

Finally, “California does not employ the death penalty as a ‘ “regular 

punishment for substantial numbers of crimes” ’ [citation], and its imposition does 

not violate international norms of decency” or the federal Constitution. (People v. 

Clark (2011) 52 Cal.4th 856, 1008; see People v. Blair (2005) 36 Cal.4th 686, 

754-755.)

14. Cumulative Error

Defendant contends the cumulative prejudicial effect of the errors in both 

the guilt and penalty phases of his trial requires reversal of his conviction and 

sentence of death. We have rejected the vast majority of defendant’s assignments 

of error, and when we have found or assumed error, we have determined 

defendant was not prejudiced. Whether such claims are considered separately or 

together, we find no prejudicial error at either phase of the proceedings.
62

III. DISPOSITION

The judgment of death is affirmed in its entirety.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.
1

CONCURRING AND DISSENTING OPINION BY LIU, J.

Four years ago, in People v. Gamache (2010) 48 Cal.4th 347, this court 

upheld a death verdict for Richard Gamache despite the fact that the jury, during 

its penalty phase deliberations, had inadvertently been allowed to view a videotape 

never admitted into evidence. (Id. at pp. 395–403.) The videotape, which the jury 

watched two times before sentencing Gamache to death, showed a detailed 

confession he had given to the police on the day of the crime. (Id. at pp. 395, 400–

402.) We held that “[i]ntroduction of the . . . videotape into the jury room was 

indisputably error.” (Id. at p. 396.) But we went on to conclude that the error was 

harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 

18, 24 (Chapman). (People v. Gamache, at p. 399, fn. 22; id. at p. 403 [“[T]here is 

no reasonable possibility Gamache would have received a more favorable outcome 

had the . . . videotape not been erroneously placed in the jury room.”].)

The United States Supreme Court denied review. (See Gamache v. 

California (2010) 562 U.S. __ [131 S.Ct. 591] (Gamache).) However, Justice 

Sotomayor, joined by Justice Ginsburg, Justice Breyer, and Justice Kagan, filed a 

statement respecting the denial of the petition for writ of certiorari. In that 

statement, Justice Sotomayor agreed that the error was harmless beyond a 

reasonable doubt, but she observed that this court, in reaching that conclusion, had 

said, “ ‘[I]n the absence of misconduct, the burden remains with the defendant to 

demonstrate prejudice under the usual standard for ordinary trial error.’ 48 

Cal.4th, at 397 (emphasis added).” (Id. at p. __ [131 S.Ct. at p. 592].) Justice 
2

Sotomayor said: “It is not clear what the court intended in allocating the burden to 

the defendant to demonstrate prejudice, but if it meant to convey that the 

defendant bore the burden of persuasion, that would contravene Chapman. See 

386 U.S., at 24 (noting that the ‘original common-law harmless-error rule put the 

burden on the beneficiary of the error either to prove that there was no injury or to 

suffer a reversal of his erroneously obtained judgment’); cf. O’Neal v. McAninch, 

513 U.S. 432, 438–439 (1995) (describing Chapman as ‘placing the risk of doubt’

about harmlessness on the State).” (Ibid.) The four-justice statement concluded 

with a warning: “With all that is at stake in capital cases [citation], in future cases 

the California courts should take care to ensure that their burden allocation 

conforms to the commands of Chapman.” (Id. at p. __ [131 S.Ct. at p. 593].)

Today’s decision neglects to heed this warning.

Defendant Jonathan Jackson was convicted of murder and sentenced to 

death while being forced, without lawful justification, to wear a REACT stun belt 

throughout his trial. REACT stands for Remote Electronically Activated Control 

Technology. Neither this colorless moniker nor anything in today’s opinion 

provides an inkling of the power of this electric shock device. Here is how Chief 

Justice George, writing for a six-justice majority, described it in People v. Mar

(2002) 28 Cal.4th 1201 (Mar): “ ‘The type of stun belt which is used while a 

prisoner is in the courtroom consists of a four-inch-wide elastic band, which is 

worn underneath the prisoner’s clothing. This band wraps around the prisoner’s 

waist and is secured by a Velcro fastener. The belt is powered by two 9-volt 

batteries connected to prongs which are attached to the wearer over the left kidney 

region. . . . [¶] The stun belt will deliver an eight-second, 50,000-volt electric 

shock if activated by a remote transmitter which is controlled by an attending 

officer. The shock contains enough amperage to immobilize a person temporarily 

and cause muscular weakness for approximately 30 to 45 minutes. The wearer is 
3

generally knocked to the ground by the shock and shakes uncontrollably. 

Activation may also cause immediate and uncontrolled defecation and urination, 

and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long 

as six months to heal. An electrical jolt of this magnitude causes temporary 

debilitating pain and may cause some wearers to suffer heartbeat irregularities or 

seizures. [Citations.]’ ” (Id. at pp. 1214–1215.)

An article we quoted in Mar described a brochure of the belt’s 

manufacturer, Stun Tech, as follows: “One of the great advantages, the company 

says, is its capacity to humiliate the wearer. ‘After all, if you were wearing a 

contraption around your waist that by the mere push of a button in someone else’s 

hand could make you defecate or urinate yourself,’ the brochure asks, ‘what would 

that do to you from the psychological standpoint?’ And if the shock ever has to be 

administered? ‘One word —,’ brags the brochure, ‘DEVASTATION!’ ” (Schulz, 

Cruel and Unusual Punishment (Apr. 24, 1997) 44 N.Y. Review of Books 51, 51; 

see Mar, supra, 28 Cal.4th at p. 1227, fn. 8.) The Indiana Supreme Court has 

banned the use of stun belts in the courtrooms of that state altogether, concluding 

that other forms of restraint “can do the job without inflicting the mental anguish 

that results from simply wearing the stun belt and the physical pain that results if 

the belt is activated.” (Wrinkles v. State (Ind. 2001) 749 N.E.2d 1179, 1195.)

While mindful that trial judges must have broad discretion to deal with 

“disruptive, contumacious, stubbornly defiant defendants” (Illinois v. Allen (1970) 

397 U.S. 337, 343), we observed in Mar that the use of a stun belt to maintain 

control over the accused during trial “has not been without problems or 

controversy.” (Mar, supra, 28 Cal.4th at p. 1205.) The belt has been abused, as 

when one California trial judge ordered a defendant to be shocked for verbally 

interrupting her. (Id. at p. 1223, fn. 6, citing Hawkins v. Comparet-Cassani (9th 

Cir. 2001) 251 F.3d 1230.) There have been “a disturbing number of accidental 
4

activations,” including at least one instance in a California courtroom “resulting in 

the defendant’s hospitalization.” (Mar, at pp. 1228, 1229, fn. 9.) Most 

importantly, the “ ‘ “total psychological supremacy” ’ ” that the stun belt is 

designed to achieve “may impair the defendant’s ability to think clearly, 

concentrate on the testimony, communicate with counsel at trial, and maintain a 

positive demeanor before the jury.” (Id. at p. 1226.)

Against this backdrop, the court today concludes that any error in requiring 

defendant to wear a stun belt throughout this capital trial was harmless beyond a 

reasonable doubt. I respectfully disagree with this conclusion and, in particular, 

with two aspects of the court’s reasoning.

First, even though it is undisputed by the parties that the trial court erred in 

forcing defendant to wear the stun belt, today’s opinion resolves defendant’s claim 

on the basis of harmless error without actually finding that the trial court erred. 

The court instead offers the vague locution that “[i]n light of the People’s 

concession at oral argument that the trial court erred under Mar, supra, 28 Cal.4th 

1201, we proceed directly to the issue of prejudice.” (Maj. opn., ante, at p. 19.) 

Does this mean the court accepts the Attorney General’s concession on the merits? 

Or does it mean the court is merely assuming error, as we often do, in order to 

resolve the issue on harmless error grounds? The court does not say. By tiptoeing 

around the issue, today’s opinion fails to confront the seriousness of the error and 

may be read to suggest that there is some question as to whether error occurred at 

all — even though, as both parties recognize and as I explain herein, the error in 

this case is at least as apparent as similar errors in other cases finding inadequate 

justification for physical restraints during trial. The court’s refusal to find error on 

this record sows unnecessary doubt about the stringent standards that govern the 

use of restraints in the courtroom.
5

Second, the court concludes that “the People have satisfied their burden 

under Chapman, supra, 386 U.S. 18, to show that any federal errors are harmless 

beyond a reasonable doubt.” (Maj. opn., ante, at p. 25.) I agree the error was 

harmless at the guilt phase, but I cannot agree it was harmless at the penalty 

retrial. Wearing a stun belt carries a substantial risk of altering a defendant’s 

demeanor, and a defendant’s demeanor is often one of the most important 

considerations for the jury in deciding whether a capital defendant deserves to live 

or die. (See Riggins v. Nevada (1992) 504 U.S. 127, 143–144 (Riggins) (conc. 

opn. of Kennedy, J.).) As discussed below, the record here provides reason to 

worry about this risk. Moreover, the penalty determination in this case was a close 

issue. The first jury, which saw and heard the entirety of the guilt phase evidence, 

hung at the penalty phase, with nine jurors willing to go either way and one or two 

jurors opposed to death. The second jury was empaneled only for the penalty 

retrial. We cannot say with any confidence what verdict it would have reached 

absent the stun belt error.

Today’s ruling simply cannot be squared with Chapman’s principle that the 

burden lies with “the beneficiary of a constitutional error to prove beyond a 

reasonable doubt that the error complained of did not contribute to the verdict 

obtained.” (Chapman, supra, 386 U.S. at p. 24.) The court holds that “reversal of 

a judgment is unwarranted when the record on appeal is devoid of evidence that 

the unjustified use of . . . a stun belt had any adverse effect.” (Maj. opn., ante, at 

p. 14.) But under Chapman, reversal is unwarranted not when the record is devoid 

of evidence that the error had an adverse effect, but only when the state has shown 

beyond a reasonable doubt that the error did not have an adverse effect. Today’s 

opinion effectively puts the burden on defendant to demonstrate that the erroneous 

use of the stun belt was prejudicial. The court even goes so far as to supply, on the 

state’s behalf, an argument for harmless error that the state itself never made. (See 
6

post, at pp. 40–41.) In essence, the court inverts Chapman’s burden allocation in 

the very manner that four justices of the high court warned against in Gamache.

(See Gamache, supra, 562 U.S. at p. __ [131 S.Ct. at p. 593] (statement of 

Sotomayor, J.).) At most, the court’s analysis of the record in this case establishes 

that it is uncertain whether defendant was prejudiced at the penalty retrial, not that 

the state has shown beyond a reasonable doubt that defendant was not prejudiced. 

To conclude otherwise, as the court does, confirms that “the allocation of the 

burden of proving harmlessness can be outcome determinative in some cases.” 

(Id. at p. __ [131 S.Ct. at p. 593].)

To observers of this court, it is no mystery that harmless error doctrine has 

played a major role in the outcomes of California capital appeals. Unfortunately, 

today’s decision is not unique in our jurisprudence; it is only the most recent 

instance in which this court has misapplied Chapman. (See post, at pp. 45–48.) 

Here, a man was unlawfully forced to have a 50,000-volt electric shock device 

strapped around his waist while a jury sat in judgment as to whether he should live 

or die for his crimes. It is reasonably possible that the stun belt adversely affected 

his demeanor, and we cannot know what decision the jury would have made 

absent this error. Because the court’s refusal to find prejudicial error in this case

erodes the applicable standards for both error and prejudice, I respectfully dissent.

I.

When used for courtroom security, a stun belt “ ‘is worn underneath the 

prisoner’s clothing’ ” (Mar, supra, 28 Cal.4th at p. 1214), so it may be presumed 

to be out of the jury’s sight. Nevertheless, the legal standards governing the use of 

stun belts have their origins in concerns applicable to the use of visible restraints 

such as shackles. I begin by reviewing the development of those standards in state 

and federal law, and then apply them to the facts of this case.
7

A.

“A trial court has broad power to maintain courtroom security and orderly 

proceedings.” (People v. Hayes (1999) 21 Cal.4th 1211, 1269; see Illinois v. 

Allen, supra, 397 U.S. at p. 343.) But this power is not unlimited. The 

constitutional prohibition on forcing a criminal defendant to wear visible physical 

restraints during trial without special justification “has deep roots in the common 

law.” (Deck v. Missouri (2005) 544 U.S. 622, 626 (Deck) [citing Blackstone and 

other early authorities]; see People v. Duran (1976) 16 Cal.3d 282, 288 (Duran)

[same].) Although originally motivated by concern for the physical suffering 

caused by chains or other restraints, the constitutional rule today reflects “three 

fundamental legal principles.” (Deck, at p. 630.)

“First, the criminal process presumes that the defendant is innocent until 

proved guilty. [Citation.] Visible shackling undermines the presumption of 

innocence and the related fairness of the factfinding process.” (Deck, supra, 544 

U.S. at p. 630.) “Second, the Constitution, in order to help the accused secure a 

meaningful defense, provides him with a right to counsel. [Citations.] The use of 

physical restraints diminishes that right. Shackles can interfere with the accused’s 

‘ability to communicate’ with his lawyer. [Citation.] Indeed, they can interfere 

with a defendant’s ability to participate in his own defense . . . .” (Id. at p. 631.) 

“Third, judges must seek to maintain a judicial process that is a dignified process. 

The courtroom’s formal dignity, which includes the respectful treatment of 

defendants, reflects the importance of the matter at issue, guilt or innocence, and 

the gravity with which Americans consider any deprivation of an individual’s 

liberty through criminal punishment. And it reflects a seriousness of purpose that 

helps to explain the judicial system’s power to inspire the confidence and to affect 

the behavior of a general public whose demands for justice our courts seek to 
8

serve. The routine use of shackles in the presence of juries would undermine these 

symbolic yet concrete objectives.” (Ibid.)

The first concern, the presumption of innocence, is not a factor during the 

penalty phase of a capital case. But in light of the second and third concerns, 

along with “the ‘ “severity” ’ and ‘ “finality” ’ of the sanction” and “the ‘acute 

need’ for reliable decisionmaking when the death penalty is at issue,” courts may 

not place defendants in visible restraints during either the penalty phase or the 

guilt phase of a capital trial without a “case specific” determination that “reflect[s] 

particular concerns, say, special security needs or escape risks, related to the 

defendant on trial.” (Deck, supra, 544 U.S. at pp. 632–633.)

1.

Consistent with Deck, California case law has long recognized limitations 

on the use of physical restraints on criminal defendants during trial. (See Mar, 

supra, 28 Cal.4th at pp. 1216–1218.) In People v. Harrington (1871) 42 Cal. 165 

(Harrington), this court said that “any order or action of the Court which, without 

evident necessity, imposes physical burdens, pains and restraints upon a prisoner 

during the progress of his trial, inevitably tends to confuse and embarrass his 

mental faculties, and thereby materially to abridge and prejudicially affect his 

constitutional right of defense . . . .” (Id. at p. 168.) There, finding “no pretense of 

necessity for the manacles and chains upon the defendants during their trial,” we 

reversed the convictions. (Id. at p. 169.)

In Duran, we declared “our continued adherence to the Harrington rule” in 

light of the “possible prejudice in the minds of the jurors, the affront to human 

dignity, the disrespect for the entire judicial system which is incident to 

unjustifiable use of physical restraints, as well as the effect such restraints have 

upon a defendant’s decision to take the stand.” (Duran, supra, 16 Cal.3d at 

p. 290.) Duran “reaffirm[ed] the rule that a defendant cannot be subjected to 
9

physical restraints of any kind in the courtroom while in the jury’s presence, 

unless there is a showing of a manifest need for such restraints.” (Id. at pp. 290–

291, fn. omitted.) We further concluded that “in any case where physical 

restraints are used those restraints should be as unobtrusive as possible, although 

as effective as necessary under the circumstances.” (Id. at p. 291.)

Duran went on to specify that “[t]he showing of nonconforming behavior 

in support of the court’s determination to impose physical restraints must appear 

as a matter of record, and, except where the defendant engages in threatening or 

violent conduct in the presence of the jurors, must otherwise be made out of the 

jury’s presence. The imposition of physical restraints in the absence of a record 

showing of violence or a threat of violence or other nonconforming conduct will 

be deemed to constitute an abuse of discretion.” (Duran, supra, 16 Cal.3d at 

p. 291.) Applying these principles in Duran, we found an abuse of discretion: 

“No reasons for shackling the defendant appear on the record. There is no 

showing that defendant threatened to escape or behaved violently before coming 

to court or while in court. The fact that defendant was a state prison inmate who 

had been convicted of robbery and was charged with a violent crime did not, 

without more, justify the use of physical restraints.” (Id. at p. 293.)

In subsequent cases, we have emphasized that in deciding whether to 

impose restraints, “the court is obligated to base its determination on facts, not 

rumor and innuendo.” (People v. Cox (1991) 53 Cal.3d 618, 652 (Cox); see ibid.

[finding shackling unwarranted where the record “does not contain a single 

substantiation of violence or the threat of violence on the part of the accused”].) 

We have also stressed that “it is the trial court, not law enforcement personnel, that 

must make the decision an accused be physically restrained in the courtroom. A 

trial court abuses its discretion if it abdicates this decisionmaking authority to 

security personnel or law enforcement. [Citations.]” (People v. Hill (1998) 17 
10

Cal.4th 800, 841, fn. omitted (Hill); see id. at p. 842 [finding shackling unjustified 

where the trial court “deferred to the sheriff’s department’s decision that shackles 

were necessary” and “fail[ed] to determine independently whether, in its view, 

there existed a manifest need to place defendant in restraints”].) Likewise, “ ‘[t]he 

imposition of restraints in a proper case is normally a judicial function in which 

the prosecutor plays no necessary part. . . . [I]t is the function of the court, not the 

prosecutor, to initiate whatever procedures the court deems sufficient in order that 

it might make a due process determination of record that restraints are necessary.’ 

(Duran, supra, 16 Cal.3d at p. 293, fn. 12.)” (Id. at pp. 841–842.)

In Mar, we had our “first occasion . . . to address the use of a stun belt in 

courtrooms in California.” (Mar, supra, 28 Cal.4th at p. 1205.) Because “the stun 

belt posed an imminent risk of both serious injury and humiliation,” we held that 

the principles set forth in Duran governing the use of visible restraints apply 

equally to the use of a stun belt worn underneath a defendant’s clothing. (Mar, at 

p. 1219.) We explained: “In light of the nature of the device and its effect upon 

the wearer when activated, requiring an unwilling defendant to wear a stun belt 

during trial may have significant psychological consequences that may impair a 

defendant’s capacity to concentrate on the events of the trial, interfere with the 

defendant’s ability to assist his or her counsel, and adversely affect his or her 

demeanor in the presence of the jury. In addition, past cases both in California 

and in other jurisdictions disclose that in a troubling number of instances the stun 

belt has activated accidentally, inflicting a potentially injurious high-voltage 

electric shock on a defendant without any justification. The potential for 

accidental activation provides a strong reason to proceed with great caution in 

approving the use of this device.” (Id. at p. 1205.) Accordingly, we concluded 

that a defendant may not be forced to wear a stun belt unless there is an on-therecord showing of manifest need based on the trial court’s own determination of 
11

the facts and independent judgment under the circumstances. (Id. at pp. 1219–

1223.) Because “the trial court [in Mar] never made, nor purported to make, a 

finding or determination that there was a ‘manifest need’ to impose the stun belt 

upon defendant because he posed a serious security threat in the courtroom,” we 

found an abuse of discretion. (Id. at p. 1222; see ibid. [use of the stun belt resulted 

from an “apparently unilateral decision” by the bailiff or jail officials].)

We recently summarized the governing principles for use of a stun belt as 

follows: “(1) there must be a showing of manifest need for the stun belt; (2) the 

defendant’s threatening or violent conduct must be established as a matter of 

record; and (3) it is the function of the court to initiate whatever procedures it 

deems necessary to make a determination on the record that the stun belt is 

necessary. The court must make an independent determination based on facts, not 

rumor or innuendo, and must not merely rely on the judgment of jail or court 

security personnel. [Citations.]” (People v. Howard (2010) 51 Cal.4th 15, 28 

(Howard).) Although the trial in the case now before us predates Mar, we said in 

Mar and in subsequent cases that the manifest need standard for use of a stun belt

applies to trials conducted before Mar. (Mar, supra, 28 Cal.4th at pp. 1222–1223; 

see, e.g., People v. Virgil (2011) 51 Cal.4th 1210, 1270–1271; People v. Lomax

(2010) 49 Cal.4th 530, 561; People v. Gamache, supra, 48 Cal.4th at pp. 366–

367.) For trials conducted after Mar, the requirements are even more stringent, as 

trial courts must take into account several additional considerations specific to 

stun belts before forcing a defendant to wear one. (See Mar, at pp. 1226–1230.)

2.

In light of Mar, the standards governing the use of a stun belt during trial 

are settled as a matter of California law. The issue is not entirely settled, however, 

as a matter of federal constitutional law.
12

Many courts have adopted federal constitutional standards similar to those 

we set forth in Mar. In United States v. Durham (11th Cir. 2002) 287 F.3d 1297 

(Durham), the court observed that “stun belts plainly pose many of the same 

constitutional concerns as do other physical restraints, though in somewhat 

different ways.” (Id. at p. 1306.) First, a stun belt “seemingly poses a far more 

substantial risk of interfering with a defendant’s Sixth Amendment right to confer 

with counsel than do leg shackles. The fear of receiving a painful and humiliating 

shock for any gesture that could be perceived as threatening likely chills a 

defendant’s inclination to make any movements during trial — including those 

movements necessary for effective communication with counsel.” (Id. at p. 1305.) 

Second, a stun belt could have an “adverse impact” on a “defendant’s Sixth 

Amendment and due process rights to be present at trial and to participate in his 

defense. Wearing a stun belt is a considerable impediment to a defendant’s ability 

to follow the proceedings and take an active interest in the presentation of his case. 

It is reasonable to assume that much of a defendant’s focus and attention when 

wearing one of these devices is occupied by anxiety over the possible triggering of 

the belt. A defendant is likely to concentrate on doing everything he can to 

prevent the belt from being activated, and is thus less likely to participate fully in 

his defense at trial.” (Id. at pp. 1305–1306, fn. omitted.) Finally, “stun belts have 

the potential to be highly detrimental to the dignified administration of criminal 

justice. . . . Shackles are a minor threat to the dignity of the courtroom when 

compared with the discharge of a stun belt, which could cause the defendant to 

lose control of his limbs, collapse to the floor, and defecate on himself.” (Id. at 

p. 1306.) The Eleventh Circuit adopted substantive and procedural standards 

almost identical to those we established in Mar and held that the district court in 

Durham “abused its discretion” in ordering a stun belt because it “did not, on the 

record, consider any less restrictive alternatives” and did not articulate “on the 
13

record” a “rationale for imposing this highly intrusive method of restraint.” 

(Durham, at p. 1308; see id. at p. 1312 (conc. opn. of Tjoflat, J.).)

A number of other jurisdictions, applying federal constitutional law, have 

reached similar results. (See United States v. Wardell (10th Cir. 2009) 591 F.3d 

1279, 1293–1294 [holding that “ ‘[t]he use of stun belts, depending somewhat on 

their method of deployment, raises all of the traditional concerns about the 

imposition of physical restraints’ ” and that a district court must make “a 

defendant-specific determination of necessity resulting from security concerns”]; 

Wrinkles v. Buss (7th Cir. 2008) 537 F.3d 804, 813–815 [finding defense counsel’s 

failure to object to stun belt where there was no “individualized justification” for 

imposing it to be deficient performance under first prong of Strickland v. 

Washington (1984) 466 U.S. 668]; United States v. Miller (6th Cir. 2008) 531 F.3d 

340, 344–346 (Miller) [holding that district court erred “[b]y deferring to the 

Marshals’ judgment” instead of making “individualized determinations or specific 

findings” to justify use of stun belt]; Gonzalez v. Pliler (9th Cir. 2003) 341 F.3d 

897, 901–902 (Gonzalez) [finding stun belt error where the “decision was 

apparently made by the bailiff, not the trial judge,” the record was devoid of 

evidence that the defendant posed a security problem, and the trial court failed to 

consider less restrictive alternatives]; Mobley v. State (Tenn. 2013) 397 S.W.3d 

70, 101 [requiring “particularized findings” that include “whether there is a less 

onerous but adequate means of providing security”]; Illinois v. Allen (Ill. 2006) 

856 N.E.2d 349, 353–354 (Allen) [holding that “the use of electronic stun belts in 

the courts of this state is warranted only where there has been a showing of 

manifest need for the restraint” and finding that the trial court erred because “it 

simply deferred to the judgment of the sheriff”]; Hymon v. Nevada (Nev. 2005) 

111 P.3d 1092, 1098–1099 [adopting the standards of Durham, Gonzalez, and Mar

as a matter of federal constitutional law]; Weaver v. State (Fla. 2004) 894 So.2d 
14

178, 195 [stun belt must be “reasonably necessary to ensure order and safety in the 

courtroom,” and trial court must consider whether “alternative forms of restraint 

. . . are less prejudicial or viable”].)

Notwithstanding this substantial body of authority, the United States 

Supreme Court has yet to provide definitive guidance on the use of stun belts, and 

as a consequence, a number of courts have upheld their use under less stringent 

standards on habeas or plain error review (see, e.g., Earhart v. Konteh (6th Cir. 

2009) 589 F.3d 337, 349; United States v. Fields (5th Cir. 2007) 483 F.3d 313, 

356–357; Mungo v. United States (D.C. 2010) 987 A.2d 1145, 1149–1150; State v. 

Bowen (Ore. 2006) 135 P.3d 272, 279; Reynolds v. State (Ala.Crim.App. 2010) 

114 So.3d 61, 82) or as a matter of state law (see State v. Benson (Ariz. 2013) 307 

P.3d 19, 28; Young v. State (Ga. 1998) 499 S.E.2d 60, 61). The high court last 

considered the issue of physical restraints during trial almost a decade ago in 

Deck, supra, 544 U.S. 622, which set forth rigorous standards for the use of visible

restraints. Since then, courts have divided on the applicability of Deck to a stun 

belt worn underneath a defendant’s clothing and shielded from the jury’s view. 

(Compare Miller, supra, 531 F.3d at p. 345 [concluding on plain error review that 

a concealed stun belt raises the “ ‘same fundamental issues’ ” as those considered 

in Deck] and Allen, supra, 856 N.E.2d at p. 352 [“the Deck Court’s stated reasons 

which prompt due process scrutiny in visible restraint cases . . . may be applied 

with like force to stun belts which are not necessarily visible to the jury”] with 

Mungo, supra, 987 A.2d at pp. 1149–1150 [concluding on plain error review that 

Deck does not entail that “a stun belt qualifies as a type of physical restraint whose 

use is subject to [Deck’s] strictures” or that “on-the-record findings are required 

before stun belts may be used”] and Benson, supra, 307 P.3d at pp. 28–29 

[distinguishing Deck where “the record reflects that the stun belt . . . [was] not 

visible to the jury”].) For the reasons stated in Durham and Mar, the better view is 
15

that a requirement of individualized on-the-record justification applies not only to 

visible restraints but also to stun belts as a matter of federal constitutional law.

B.

In this case, two trial judges entered two separate orders requiring 

defendant to wear a stun belt: the first for the duration of the guilt phase and the 

first penalty phase, and the second for the penalty phase retrial. On appeal, 

defendant contends that each order violated his rights under the California 

Constitution and the United States Constitution. The record clearly indicates that 

neither order was supported by a proper finding of manifest need.

1.

Before the guilt phase, defendant submitted a motion objecting to physical 

shackling. In response, the prosecutor requested a stun belt as an alternative to 

shackling, arguing that a stun belt was not a physical restraint within the meaning 

of Duran. (See People v. Garcia (1977) 56 Cal.App.4th 1349, 1356 (Garcia), 

disapproved by Mar, supra, 28 Cal.4th at p. 1219.) At a hearing on March 30, 

1999, the prosecutor said, “I feel very strongly about this defendant having a react 

belt during this trial.” The trial court inquired whether defendant’s objection 

would apply to a stun belt. Defense counsel replied, “My position would be that 

Mr. Jackson has demonstrated his ability to be responsible in the courtroom and 

that we don’t need anything.”

The court then ruled as follows: “I tell you what we will do, if we have two 

deputies[,] and they try to give two deputies on murder cases, we will not have the 

react belt. . . . I have evidence in the Statement of Aggravation that [defendant] 

did make a threat, he has engaged in violence in custody, and there is some — I 

don’t have a clear record of it but there is certainly hints from the probation report 

that he had when he was in [the California Youth Authority] and there is also 

information apparently from the CDC 115s that he has posed some threat to other 
16

people. [¶] And it seems to me in a courtroom context if things don’t go the right 

way there might be a problem with him. . . . [¶] I think you ought to tell the 

sergeant it would be my strong preference to have a second deputy sitting back 

there so we can avoid this problem. Tell them if it’s not, then I will have a react 

belt, and it’s my understanding you have to have a second deputy then anyway.” 

The courtroom deputy confirmed that if the court ordered defendant to wear the 

stun belt, a second deputy would be provided to monitor the belt. The court then 

told the deputy, “Tell the sergeant if you can, please, that if he forces me to order 

the react belt in order to get a second deputy here I will do that.”

The prosecutor objected to the court’s ruling on the ground that “there is 

really no showing required for a react belt, because it’s not a restraint. It’s been 

held they are not even a restraint on the defendant.” The court nevertheless 

confirmed its decision, commenting: “If there is [sic] problems going on with 

intimidation of witnesses or something else is occurring we will deal with it at that 

point. But at this point, given Deputy Young’s confidence that he can handle the 

situation with a second deputy, I think it would be inappropriate to have the react 

belt.”

The trial court continued to explain its reasoning, stating: “This is not an 

easy case . . . to make a decision on because I have allegations — of course, I am 

at somewhat of a loss because these things haven’t been proved, but I think I have 

to assume from the starting point that there may be some basis for these things.” 

The court continued: “Sure he isn’t causing a problem now because he is always 

handcuffed and dressed in orange . . . . [H]e is in a situation where he really can’t 

cause much problems. [¶] On the other hand, . . . I haven’t had a problem with 

him in court. He has been cooperative. He hasn’t mouthed off in any way. And 

the cases are clear that if I could avoid shackling him or handcuffing him or 

anything like that I should do that. So I don’t intend to do that.”
17

Finally, the court restated its decision: “[W]hat I’m going to do is call 

Captain Moreland, who is the person over in the jail, and tell him that I need to 

have a second deputy, if you can’t provide it I will need to order the react belt, 

which then will require a second deputy because there is always a deputy that 

monitors the react belt.”

A week later, on April 6, 1999, the court announced that defendant would 

be required to wear a stun belt for the duration of trial. The court explained, “I 

could not be assured of a second officer without having the REACT Belt.”

On this record, it is clear that the trial court’s order was an abuse of 

discretion. The trial court made no determination that the stun belt was necessary 

for courtroom security. While noting that defendant “has engaged in violence in 

custody,” the court acknowledged that there was no “clear record” defendant 

posed a security threat, that defendant “has been cooperative” and “hasn’t 

mouthed off in any way,” that “I haven’t had a problem with him in court,” and 

that the contrary indications consisted of “allegations” that “haven’t been proved.” 

Moreover, the court said “it would be inappropriate to have the react belt” in light 

of its judgment that any threat posed by defendant could be handled by the 

presence of a second deputy in the courtroom. The trial court ultimately decided 

to order the stun belt not because it had made a finding that the belt was necessary 

to restrain defendant, but because it “could not be assured of a second officer 

without having the REACT Belt.” As a result, defendant was guarded by two 

deputies and forced to wear a stun belt during trial.

When ordering restraints, “[a] trial court abuses its discretion if it abdicates 

[its] decisionmaking authority to security personnel or law enforcement.” (Hill, 

supra, 17 Cal.4th at p. 841; see Miller, supra, 531 F.3d at pp. 344–346; Gonzalez, 

341 F.3d at pp. 901–902; Allen, supra, 856 N.E.2d at pp. 353–354.) From this 

principle, it follows that a trial court abuses its discretion when it permits such 
18

personnel to make their presence contingent on the court’s decision to order the 

use of restraints. It is well established that “a court should impose the least 

restrictive measure that will satisfy the court’s legitimate security concerns.” 

(Mar, supra, 28 Cal.4th at p. 1206; see Durham, supra, 287 F.3d at p. 1308.) 

Here, the trial court determined that having a second officer in the courtroom 

would have been adequate. Because the court’s decision to order the stun belt was 

driven by the sheriff’s department’s staffing policy rather than by any finding of 

manifest need, it was an abuse of discretion.

2.

Before the penalty retrial, defendant was again ordered to wear a stun belt, 

this time by a second judge who had just begun to preside over the case. At a 

hearing on October 21, 1999, the prosecutor initiated discussion of the issue and 

asked the court to order “[t]he zapping belt, the react belt.” In response, the court 

observed, “I’ve been informed that there was a need for such by the sheriff’s 

department and my deputy.” At that point, defense counsel said: “Well, I would 

object to the belt, not only as I believe it’s unnecessary, but it’s extremely 

uncomfortable for the defendant. I would ask that the Court use the leg brace on 

him. It fits underneath the clothing. I think that’s ample restriction on his 

movement and more than an adequate means of securing him in this courtroom.

He hasn’t done anything in the past to exhibit any kind of unruly behavior or any 

disrespect to the Court or any staff. I just think it’s unnecessary.”

The court responded: “It’s my understanding that although there has not 

been any issue in the courtroom, there has been sufficient issues out of the 

courtroom that give rise to considerable concern for the safety of the public and 

the safety of deputies who would be called upon to attend to the security of the 

defendant and the people in attendance. . . . Unfortunately, my bailiff who 

brought the subject to me originally is not with us this morning.” The court 
19

continued: “He knew something of the background of the defendant, and I didn’t 

ask him to go into any detail when he broached the subject the day before 

yesterday.”

The prosecutor proceeded to argue, as she had at the guilt phase, that a stun 

belt was unlike other physical restraints and that the court was not required to 

make any special finding before ordering defendant to wear it. When the trial 

court said it was not aware that the belt had been uncomfortable to wear, defense 

counsel responded: “The trial days are long, and what my concern is is that the 

belt is uncomfortable. It’s a large object that’s placed on the kidney area, the liver 

area on his back. It makes it difficult to sit back. And I believe that because of the 

fact this is [sic] capital case, every caution and concern should be made to protect 

the rights of the defendant. I’m worried about any unconscious grimacing or 

exhibitions of discomfort that Mr. Jackson might make that might be misconstrued 

by the jury as a reaction to witness testimony or anything like that. But we did in 

the last trial try to alleviate that discomfort by giving him a pillow to kind of even 

out the back so when he sat back, he wouldn’t be putting all the pressure onto that 

react unit that’s strapped to him. That caused a little bit of relief, but I don’t think 

significant.”

The court then said: “[F]rom the little I’ve seen, it appears that the 

defendant is sufficiently violent that it’s not a matter of we’re concerned about so 

much his escape, which would be the subject of the leg restraint . . . .” The court 

continued: “[H]ere we’re concerned about the violent nature of his responses to 

people in authority. And that just is not sufficiently addressed by a leg brace. . . . 

It will not keep him from attacking members of the public or the attachés and his 

own counsel . . . . [¶] . . . I’m not about to have this [be] a matter of something 

that we wish we would have done in retrospect which would have avoided some 

serious injury.”
20

Finally, after observing that there was no reason to shackle defendant if the 

stun belt was an available alternative, the court ruled as follows: “[S]ince the 

Court is opposed to shackling and since the Court feels that the leg brace is, in the 

opinion of the Court, insufficient to secure the safety of the public, the attachés 

and so on, counsel, from violent attacks by the defendant, the use of the react belt 

is approved . . . .”

This order was also an abuse of discretion. The information on which the 

second trial judge relied was precisely the sort that case law has found insufficient. 

In raising a safety concern, the trial court made reference to “sufficient issues out 

of the courtroom” and “the violent nature of [defendant’s] responses to people in 

authority” without ever identifying what the specific issues or incidents were. 

Further, rather than “mak[ing] its own determination of the ‘manifest need’ for the 

use of such restraint,” the trial court “rel[ied] solely on the judgment of jail or 

court security personnel in sanctioning the use of such restraints.” (Mar, supra, 28 

Cal.4th at p. 1218.) The court acknowledged that “there has not been any issue in 

the courtroom” and did not point to any on-the-record evidence that defendant 

posed a security threat during trial. Instead, the trial court relied on unidentified 

information it had been told in off-the-record conversations with the sheriff’s 

department and the bailiff. By the court’s own account, those conversations were 

not in-depth; the bailiff “knew something of the background of the defendant,” but 

the court “didn’t ask him to go into any detail.” (See Cox, supra, 53 Cal.3d at 

p. 652 [“the court is obligated to base its determination on facts, not rumor and 

innuendo”].) In sum, the record does not “demonstrate that the trial court 

independently determined on the basis of an on-the-record showing of defendant’s 

nonconforming conduct that ‘there existed a manifest need to place defendant in 

restraints.’ ” (Mar, supra, 28 Cal.4th at p. 1218; see Durham, supra, 287 F.3d at 
21

p. 1308.) Thus, I would conclude that the trial court erred under state and federal 

law in forcing defendant to wear a stun belt during the penalty retrial.

3.

Today’s opinion neither agrees nor disagrees with the analysis above. The 

court simply says: “In light of the People’s concession at oral argument that the 

trial court erred under Mar, supra, 28 Cal.4th 1201, we proceed directly to the 

issue of prejudice.” (Maj. opn., ante, at p. 19.) I am not sure what this sentence is 

supposed to mean, but it certainly leaves the reader with the impression that the 

court, by refusing to say it accepts the Attorney General’s concession, is not fully 

convinced that use of the stun belt was error.

Although it is not rare for our court to decline to resolve an issue on the 

merits when it can be resolved on the basis of harmless error, this practice is 

typically reserved for issues that present a close question, where the risk of an 

incorrect ruling or unintended consequences may counsel restraint. In this case, 

the trial court’s errors in ordering the stun belt are no less obvious than the similar 

errors found in Mar, Durham, Miller, Gonzalez, and Allen. (See ante, at pp. 11–

14.) Indeed, after reciting defendant’s arguments on this issue (maj. opn., ante, at 

pp. 18–19), today’s opinion does not even bother to state any counterarguments, 

for there are none that could withstand scrutiny under well-established law. Any 

hesitation the court may have about finding error is simply unexplained. The 

court’s refusal to find error under these circumstances sows unnecessary doubt 

about the rigorous standards that govern the use of restraints in the courtroom. 

Even if this were unintended, the upshot remains that a violation of the right to be 

free of unjustified restraints during trial has gone unrecognized. We should not 

allow due process of law to be silently eroded in this way.
22

II.

I agree with today’s decision that the stun belt was not prejudicial at the 

guilt phase because the belt’s potential effect on defendant’s demeanor was not 

relevant to the jury’s determination of the objective facts comprising his crimes 

and because defendant does not contend he would have testified or otherwise 

aided his defense at the guilt phase had the court not ordered the belt. However, I 

cannot agree that the stun belt error was harmless beyond a reasonable doubt at the 

penalty retrial, where it is reasonably possible that the stun belt adversely affected 

defendant’s demeanor in a way that contributed to the jury’s verdict. In reaching a 

contrary result, the court effectively assigns to defendant the burden of proving 

that the error was prejudicial, thereby inverting Chapman’s requirement that the 

state demonstrate lack of prejudice beyond a reasonable doubt. (Chapman, supra, 

386 U.S. at p. 24; see Gamache, supra, 562 U.S. at p. __ [131 S.Ct. at p. 593] 

(statement of Sotomayor, J.).) This case illustrates that the conceptual and 

institutional difficulties inherent to harmless error analysis call for strict adherence 

to established legal standards in assessing prejudice, especially when it comes to

errors in the penalty phase of a capital trial.

A.

To illuminate what is problematic about today’s decision, I begin by 

bringing into focus the nature of harmless error analysis and the importance of the 

legal standards that guide it.

At bottom, harmless error inquiry mediates a basic tension in the law. On 

one hand, few if any trials are entirely free from error, and an appellate court 

would impair the basic functioning of the criminal justice system if it were to 

reverse a conviction whenever some slight misstep occurred. This is a lesson 

learned from experience. Until the beginning of the last century, a rule of nearautomatic reversal prevailed in criminal matters such that, “ ‘as one trial judge put 
23

it . . . [,] courts of review ‘tower[ed] above the trials of criminal cases as 

impregnable citadels of technicality.’ ” (Kotteakos v. United States (1946) 328 

U.S. 750, 759.) As a result, “criminal trials became a game for sowing reversible 

error in the record, only to have repeated the same matching of wits when a new 

trial had been thus obtained.” (Ibid.) It was in response to such problems that 

many jurisdictions, including California, adopted measures to limit reversals of 

judgments only to cases where substantial errors had occurred. (Id. at pp. 759–

760; see Cal. Const., art. VI, § 16; People v. O’Bryan (1913) 165 Cal. 55, 63–66.)

On the other hand, an appellate court runs two related risks when it 

evaluates the effect of an error to determine whether it warrants reversal. First, to 

say that a conviction may stand in spite of underlying error is at odds with the 

norm of legality that justifies the state’s imposition of criminal punishment in the 

first place. A declaration that an error is harmless is, in essence, a conclusion that

even though a legal right has been violated, there will be no remedy for that 

violation. As former D.C. Circuit Chief Judge Harry Edwards has put it, “each 

time we employ the imaginary tonic of harmless error, we erode an important legal 

principle. When we hold errors harmless, the rights of individuals, both 

constitutional and otherwise, go unenforced.” (Edwards, To Err Is Human, But 

Not Always Harmless: When Should Legal Error Be Tolerated? (1995) 70 N.Y.U. 

L.Rev. 1167, 1170 (Edwards).) Divorcing legal rights from remedies in this 

fashion may encourage, or at least fail to discourage, future violations by 

undermining the “deterrent force of a reversal.” (Ibid.) 

Second, when an appellate court engages in harmless error inquiry, it risks 

invading the province of the jury. A court trying to determine what would have 

happened in a counterfactual proceeding in which the error at issue did not occur 

may end up, consciously or not, conducting an inquiry into a defendant’s guilt or 

innocence, a question that our system of justice reserves for the jury. (See 
24

Apprendi v. New Jersey (2000) 530 U.S. 466, 476–484; Sullivan v. Louisiana

(1993) 508 U.S. 275, 280.) The risk of an appellate court usurping the jury’s role 

becomes especially great when harmless error analysis focuses not on whether 

error might have affected the jury’s decisionmaking, but on whether there was 

overwhelming evidence to support the result. As Chief Justice Traynor explained, 

“It is one thing for an appellate court to determine that a verdict was or was not 

affected by error. It is quite another for an appellate court to become in effect a 

second jury to determine whether the defendant is guilty.” (Traynor, The Riddle 

of Harmless Error (1970) p. 21 (Traynor); see Neder v. United States (1999) 527 

U.S. 1, 31–32 (conc. & dis. opn. of Scalia, J.); Sullivan, at p. 28; Edwards, supra, 

70 N.Y.U. L.Rev. at pp. 1185–1199; Field, Assessing the Harmlessness of Federal 

Constitutional Error — A Process in Need of a Rationale (1976) 125 U. Pa. 

L.Rev. 15.)

These two risks arise in unique and potentially troubling ways when a 

reviewing court assesses the prejudicial impact of errors in the penalty phase of a 

capital trial. To state the obvious, it is no small thing for a court of law to affirm a 

sentence of death while holding that the defendant’s legal rights were violated in 

the sentencing proceeding. This court has recognized as much in holding that an 

exacting “reasonable possibility” standard of harmless error review — which is 

“ ‘the same, in substance and effect,’ as the harmless-beyond-a-reasonable-doubt 

standard of Chapman” — specially applies when evaluating any error that occurs

during the penalty phase of a capital trial. (People v. Cowan (2010) 50 Cal.4th 

401, 491; see People v. Gonzalez (2006) 38 Cal.4th 932, 961; People v. Ashmus

(1991) 54 Cal.3d 932, 990; People v. Brown (1988) 46 Cal.3d 432, 448 (Brown).) 

Our less stringent “reasonable probability” standard applicable to ordinary state 

law errors (People v. Watson (1956) 46 Cal.2d 818, 837) is “simply insufficient to 

ensure ‘reliability in the determination that death is the appropriate punishment in 
25

a specific case.’ ” (Brown, at p. 448; see Deck, supra, 544 U.S. at p. 632 [“The 

Court has stressed the ‘acute need’ for reliable decisionmaking when the death 

penalty is at issue.”].)

Moreover, we have long “recognized a fundamental difference between 

review of a jury’s objective guilt phase verdict, and its normative, discretionary 

penalty phase determination” in a capital trial. (Brown, supra, 46 Cal.3d at 

p. 447.) The nature of the task assigned to the jury at the penalty phase of a capital 

trial makes it particularly difficult to analyze identified error for harmlessness. “A 

capital penalty jury . . . is charged with a responsibility different in kind from . . . 

guilt phase decisions: its role is not merely to find facts, but also — and most 

important — to render an individualized, normative determination about the 

penalty appropriate for the particular defendant . . . .” (Id. at p. 448; see Woodson 

v. North Carolina (1976) 428 U.S. 280.) In light of the jury’s “vast discretion” in 

making this decision and the endless variety of factors that may affect its judgment 

(Brown, at p. 447), a counterfactual assessment of whether an error did not 

influence the jury can be “extremely speculative or impossible.” (Clemons v. 

Mississippi (1990) 494 U.S. 738, 754; cf. Traynor, supra, at p. 73 [“[A]n appellate 

court cannot possibly determine what factors influenced a jury to impose the death 

penalty. Any error, unless it related only to the proof of some fact otherwise 

indisputably established, might have tipped the scales against the defendant.”]; 

Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine 

Misunderstood and Misapplied (1995) 28 Ga. L.Rev. 125, 126, 149–150.) It bears 

emphasis that “this court is [not] entitled legally to make the determination of 

whether appellant is to live or be put to death. The determination of what penalty 

shall be imposed rests exclusively with the jury.” (People v. Hamilton (1963) 60 

Cal.2d 105, 138; cf. Ring v. Arizona (2002) 536 U.S. 584, 614 (conc. opn. of 
26

Breyer, J.) [“the Eighth Amendment requires that a jury, not a judge, make the 

decision to sentence a defendant to death”].)

B.

There is no easy solution for navigating these tensions either in the mine 

run of harmless error cases or in cases involving error in the penalty phase of a 

capital trial. But appellate courts can mitigate the risks associated with harmless 

error review by complying strictly with the standards established by law to guide 

such review. Rigorous adherence to these standards serves to maintain the crucial 

role of appellate review in promoting adherence to the law, to restrain reviewing 

courts from invading the province of the jury, and to preserve jury verdicts that 

may be deemed untainted by error based on disciplined application of a legally 

specified confidence level rather than an appellate judge’s ad hoc intuitions of 

guilt, innocence, or just punishment.

As today’s opinion acknowledges, the Chapman harmless error standard 

applies to defendant’s federal constitutional claims. (Maj. opn., ante, at p. 25.) 

Chapman has two principal features. First, a finding of harmless error requires a 

showing “beyond a reasonable doubt” that the error did not affect the jury’s 

verdict. (Chapman, supra, 386 U.S. at p. 24.) The reasonable doubt standard has 

long been understood to indicate “the very high level of probability required by 

the Constitution” to deprive an individual of life or liberty. (Victor v. Nebraska

(1994) 511 U.S. 1, 14.) The requirement is not one of absolute certainty. (See id.

at p. 17 [“A fanciful doubt is not a reasonable doubt.”]; Pen. Code, § 1096 

[reasonable doubt “ ‘is not a mere possible doubt’ ”].) But the standard is, and is 

intended to be, very stringent; it is not satisfied so long as there is a doubt “based 

upon ‘reason.’ ” (Jackson v. Virginia (1979) 443 U.S. 307, 317.) The stringency 

of the standard reflects not only its protective function but also its amenability to 

principled application. Under Chapman, a reviewing court need not calibrate its 
27

certitude to some vaguely specified probability; instead, the court must be 

convinced the error was harmless to the maximal level of certainty within the 

realm of reason, a level that admits no reasonable doubt.

Second, the burden of proving beyond a reasonable doubt that the error did 

not affect the jury’s verdict lies with “the beneficiary of the error,” namely, the 

state. (Chapman, supra, 386 U.S. at p. 24; see Deck, supra, 544 U.S. at p. 635; 

United States v. Dominguez Benitez (2004) 542 U.S. 74, 81, fn. 7; Arizona v. 

Fulminante (1991) 499 U.S. 279, 295–296; Satterwhite v. Texas (1988) 486 U.S. 

249, 256.) Under Chapman, it is not the defendant’s burden to show that the error 

did have adverse effects; it is the state’s burden to show that the error did not have 

adverse effects. Because it may be difficult to determine whether a particular error 

contributed to the jury’s verdict given the counterfactual nature of the inquiry, “the 

allocation of the burden of proving harmlessness can be outcome determinative in 

some cases.” (Gamache, 562 U.S. at p. __ [131 S.Ct. at p. 593] (statement of 

Sotomayor, J.).)

The significance of this burden allocation has been confirmed by high court 

precedent since Chapman. In Riggins, the high court reversed a capital conviction 

where the defendant was unconstitutionally forced to take antipsychotic drugs 

during the course of his trial. (Riggins, supra, 504 U.S. at p. 138.) In deciding 

that the error was prejudicial, the high court made no finding that the medication 

actually affected the defendant’s outward appearance, testimony, ability to follow 

the proceedings, or communication with counsel; the court simply said such 

effects were “clearly possible.” (Id. at p. 137.) While acknowledging that “the 

precise consequences of forcing antipsychotic medication upon Riggins cannot be 

shown from a trial transcript,” the high court held that Riggins need not 

“demonstrate how the trial would have proceeded differently” in order to prevail. 

(Ibid.) Riggins reversed the conviction upon observing that “[e]fforts to prove or 
28

disprove actual prejudice from the record before us would be futile, and guesses 

whether the outcome of the trial might have been different if [the defendant had 

not been unlawfully medicated] would be purely speculative.” (Ibid.)

The high court’s decision in O’Neal v. McAninch (1995) 513 U.S. 432 

(O’Neal) likewise underscores that the state bears the burden of demonstrating the 

absence of prejudice and that this burden allocation can be dispositive. In O’Neal, 

the defendant had been convicted in state court of murder and other crimes, but the 

Sixth Circuit on habeas review held that the trial court had given a misleading jury 

instruction in violation of the Constitution. The question before the high court was 

whether an error may be deemed harmless in “the special circumstance in which 

record review leaves the conscientious judge in grave doubt about the likely effect 

of an error on the jury’s verdict. (By ‘grave doubt,’ we mean that, in the judge’s 

mind, the matter is so evenly balanced that he feels himself in virtual equipoise as 

to the harmlessness of the error.)” (Id. at p. 435.) O’Neal held that in such cases 

“the petitioner must win” (id. at p. 437), relying significantly on Chapman’s rule 

that “ ‘constitutional error . . . casts on someone other than the person prejudiced 

by it a burden to show that it was harmless’ ” (id. at p. 438, quoting Chapman, 

supra, 386 U.S. at p. 24). O’Neal thus confirms that an error cannot be found 

harmless under Chapman even when a reviewing court is not convinced but is 

genuinely unsure that there is a reasonable possibility that the error affected the 

verdict. The burden is on the state, not the defendant, to dispel the uncertainty.

C.

In the present case, a straightforward application of Chapman leads to the 

conclusion that the death judgment must be reversed. Not only did defendant 

expressly complain about the stun belt; the record also gives rise to reasonable 

concern about the belt’s effect on defendant’s demeanor, an important 

consideration for the jury in a capital penalty proceeding. Further, the 
29

prosecution’s case for death at the penalty retrial was not overwhelming, and the 

first penalty phase, which set forth no less persuasive a case for death, resulted in a 

hung jury. These considerations are more than sufficient to prevent us from 

concluding beyond a reasonable doubt that the stun belt error did not affect the 

penalty verdict.

As context for examining the particulars of this case, it bears mention that 

less than five years ago, in People v. Stevens (2009) 47 Cal.4th 625 (Stevens), we 

described the use of stun belts for purposes of courtroom security as an 

“exceptional practice[]” that is “inherently prejudicial.” (Id. at pp. 632, 644.) 

Stevens held that “the stationing of a courtroom deputy next to a testifying 

defendant is not an inherently prejudicial practice that must be justified by a 

showing of manifest need.” (Id. at p. 629.) In reaching this conclusion, we drew a 

contrast between the presence of security officers in the courtroom and “visible 

shackling, stun belts, or other affronts to human dignity” that are “[i]nherently 

prejudicial practices.” (Id. at p. 644.) In this context, the term “inherently 

prejudicial” does not mean that erroneous use of a physical restraint requires 

automatic reversal. But it does mean that the use of a stun belt carries a 

“substantial risk of prejudice” and “an inordinate risk of infringing upon a criminal 

defendant’s right to a fair trial.” (Id. at p. 632; accord, Durham, supra, 287 F.3d at 

p. 1305.) This substantial risk of prejudice underscores the heavy burden the state 

must meet to demonstrate that the stun belt error was harmless beyond a 

reasonable doubt.

As we said in Mar, “requiring an unwilling defendant to wear a stun belt 

during trial may have significant psychological consequences that may . . . 

adversely affect his or her demeanor in the presence of the jury.” (Mar, supra, 28 

Cal.4th at p. 1205.) This concern is borne out in the record here. From the 

beginning, defendant repeatedly complained about the stun belt. On April 6, 1999, 
30

when defendant was first fitted with the device at the guilt phase, defense counsel 

observed that it prevented his client from leaning back and that “it’s going to be 

very uncomfortable.” Defendant said, “It’s punching up in my side.” Defendant 

was also worried about setting off the belt inadvertently. As the attending deputy 

stated in the course of trying to reposition the device, “I think he’s concerned it’s 

going to activate it, but just by leaning on it, it won’t activate it.” The deputy said 

that “[t]he belt is designed to be worn around the waist tightly” and that according 

to the belt’s instructions, “[i]t needs to be near the kidney.” Eventually, defendant 

was fitted with a pillow to cushion the belt, and he said, “That’s a little better.” 

Still, defendant continued to complain about the tightness of the belt, and the trial 

court observed, “It really is bulky. I can see how it would be uncomfortable.”

Defense counsel reiterated these concerns on October 21, 1999 before the 

penalty phase retrial, stating: “Well, I would object to the belt, not only as I 

believe it’s unnecessary, but it’s extremely uncomfortable for the defendant.” 

When the trial judge (who was new to the case) said, “I have not been aware . . . 

that there has been that much of an uncomfortable feeling for the defendant by 

reason of the react belt,” defense counsel pushed back and expressed concern 

about the stun belt’s potential effect on defendant’s demeanor: “The trial days are 

long, and what my concern is is that the belt is uncomfortable. It’s a large object 

that’s placed on the kidney area, the liver area on his back. It makes it difficult to 

sit back. . . . I’m worried about any unconscious grimacing or exhibitions of 

discomfort that Mr. Jackson might make that might be misconstrued by the jury as 

a reaction to witness testimony or anything like that. But we did in the last trial try 

to alleviate that discomfort by giving him a pillow to kind of even out the back so 

when he sat back, he wouldn’t be putting all the pressure onto that react unit that’s 

strapped to him. That caused a little bit of relief, but I don’t think significant.”
31

In addition to defense counsel’s statement, the record elsewhere reveals 

reasonable grounds for concern that the stun belt may have “impair[ed] the 

defendant’s ability to . . . maintain a positive demeanor before the jury.” (Mar, 

supra, 28 Cal.4th at p. 1226.) On May 20, 1999, during the first penalty phase, the 

defense moved to preclude the prosecution from commenting on defendant’s 

courtroom demeanor. In granting the motion, the trial court said: “The only real 

issue is lack of emotion at this point.” Today’s opinion says this observation “read 

in context” reflects no concern related to the belt. (Maj. opn., ante, at p. 21.) But 

when one reads the full transcript, one finds nothing to suggest that defendant’s 

lack of emotion was, as the court speculates, merely an impassive response to the 

testimony of the prosecution’s witnesses rather than a foreseeable effect of 

wearing the stun belt. It is hardly unreasonable to think that lack of emotion may 

be one effect of being forced to wear an electric shock device that is susceptible to 

accidental activation and designed to achieve “ ‘ “total psychological 

supremacy” ’ ” through the threat of “ ‘debilitating pain.’ ” (Mar, at pp. 1215, 

1226.) I suspect most people, with such a device strapped around the waist, would 

sit as still and impassively as they possibly could in order to avoid activating it. (I 

would hesitate to even sneeze.)

The possibility of prejudice resulting from modification of a defendant’s 

demeanor during a capital sentencing proceeding is not insignificant. “As any trial 

attorney will attest, serious prejudice could result if [an extraneous influence] 

inhibits the defendant’s capacity to react and respond to the proceedings and to 

demonstrate remorse or compassion. The prejudice can be acute during the 

sentencing phase of the proceedings, when the sentencer must attempt to know the 

heart and mind of the offender and judge his character, his contrition or its 

absence, and his future dangerousness. In a capital sentencing proceeding, 

assessments of character and remorse may carry great weight and, perhaps, be 
32

determinative of whether the offender lives or dies.” (Riggins, supra, 504 U.S. at 

pp. 143–144 (conc. opn. of Kennedy, J.); see Sundby, The Capital Jury and 

Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty

(1998) 83 Cornell L.Rev. 1557.) Our own cases have repeatedly held that a 

defendant’s courtroom demeanor is relevant to the jury’s determination of the 

defendant’s character in the penalty phase of a capital trial. (See People v. 

Valencia (2008) 43 Cal.4th 268, 307–308 [collecting cases].) And we have said it 

is not improper for a trial court to observe that “ ‘[t]he defendant was emotionally 

calm during the entire trial’ ” in denying a motion to modify a death verdict 

because “[a] defendant’s demeanor may reflect remorse, or otherwise arouse 

sympathy in either jury or judge,” and is therefore “relevant” to the sentencing 

decision. (People v. Williams (1988) 44 Cal.3d 883, 970, fn. 50, 971–972.)

The stun belt’s effect on defendant’s demeanor may have been especially 

significant at one crucial point during the penalty retrial. On November 17, 1999, 

the prosecution alerted the court that defendant had engaged in some “verbal and 

non-verbal communication” with members of his family. The court advised 

defendant that “the bailiff will take actions if you do it again.” Defendant could 

have reasonably interpreted this statement as a warning that the bailiff would 

activate the stun belt if defendant were to engage in any further verbal or 

nonverbal communication with his family. Immediately following this exchange, 

defendant’s mother testified. It is reasonable to believe that the jury would have 

found it particularly off-putting if defendant had remained expressionless while his 

mother recounted the extensive emotional, physical, and sexual abuse she had 

suffered in front of defendant, as well as the beatings that defendant had suffered 

in trying to protect her. As defense counsel observed in closing argument, the 

mother’s testimony caused defendant’s brother Antione, a Gulf War veteran, to 

“run from the courtroom crying.” If there was one moment in the penalty phase 
33

when the jury might have expected defendant to visibly demonstrate his capacity 

for empathy or compassion, it was during his mother’s testimony — right after the 

trial court had warned him that “the bailiff will take actions” if he engaged in any 

verbal or nonverbal communication with members of his family.

Finally, the weakness of the prosecution’s case for death makes it even 

more reasonable to believe that the stun belt error may have affected the jury’s 

verdict. The most significant and objective indicator of that weakness is the fact 

that the first penalty phase jury found the case to be very close and was ultimately 

unable to reach a verdict. A jury’s inability to reach a verdict is often indicative of 

weakness in the prosecution’s case and probative of an error’s prejudicial effect. 

(See, e.g., Kyles v. Whitley (1995) 514 U.S. 419, 554; Krulewitch v. United States

(1949) 336 U.S. 440, 445; Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041, 

1056, fn. 18; United States v. Beckman (8th Cir. 2000) 222 F.3d 512, 525; United 

States v. Tubol (2d Cir. 1999) 191 F.3d 88, 97; People v. Figueroa (1986) 41 

Cal.3d 714, 722; People v. Ross (2007) 155 Cal.App.4th 1033, 1055; People v. 

Lee (2005) 131 Cal.App.4th 1413, 1430.) The first jury expressly confirmed that 

the penalty decision was close in a note it sent to the trial court on May 27, 1999

shortly before the court declared a mistrial. That note indicated there were nine 

jurors who believed the issue was close enough that they were willing to go either 

way and one or two jurors who were firmly against imposing death.

Although the murder of Monique Cleveland (Monique) may well be the 

kind of crime worthy of a death sentence, the first jury’s hesitation to impose 

death suggests it may have been unsure whether defendant was the one who 

actually shot Monique. (Cf. Enmund v. Florida (1982) 458 U.S. 782, 794 [noting 

juries’ reluctance to impose the death penalty “for accomplice liability in felony 

murders”].) No one who testified at the trial had witnessed Monique’s murder. 

Two of the prosecution’s main witnesses, Kevin Jackson and Donald Profit, 
34

testified that defendant said he shot Monique, but neither was present at the crime. 

The third main witness, Robert Cleveland (Robert), “began losing consciousness 

and was only vaguely aware of hearing additional gunshots” after he had been 

shot. (Maj. opn., ante, at p. 4.) Further, both Robert’s testimony and Kevin 

Jackson’s indicated that one or more of defendant’s confederates had entered the 

Clevelands’ house before Monique was shot. The first jury’s uncertainty is 

reflected in another note it sent to the trial court on May 27, 1999, asking about the 

role that lingering doubt could play in its deliberations. In light of the evidence 

presented, it is reasonable to suspect that the jury had lingering doubt as to 

whether defendant shot Monique, an issue that was irrelevant at the guilt phase but 

obviously relevant at the penalty phase.

The evidence at the penalty retrial did not present a more compelling case 

for death. If anything, the prosecution’s case was weaker. The first jury heard 

three versions of the crimes — one from Donald Profit, another from Kevin 

Jackson, and a third from Robert Cleveland, a surviving victim who had suffered 

gunshot injuries to his face, upper back, and abdomen. The second jury heard 

only Kevin Jackson’s testimony. In addition to being a convicted felon and an 

admitted drug dealer, Kevin Jackson was not present at the shooting and, to the 

jury’s knowledge, was testifying pursuant to a deal with the prosecution. His 

testimony was based on a story defendant had told him while they smoked 

marijuana together a few days after the shooting.

There was little new evidence at the penalty retrial. The prosecution 

submitted a redacted autopsy photograph of a one-month-old embryo found in 

Monique’s womb. The photograph is rather clinical and “is neither gory nor 

particularly disturbing.” (Maj. opn., ante, at p. 37.) The prosecution also put on 

testimony by Correctional Sergeant Vern Nichols, who described an incident in 

which defendant and two other inmates refused an officer’s order to “get down.” 
35

“One of the three inmates told the officer, ‘Fuck you. We don’t have to get 

down,’ but Nichols was not sure whether it had been defendant.” (Id. at p. 8.) 

This evidence “was not especially prejudicial, particularly since the guard 

acknowledged that the three inmates were not a ‘direct threat’ to him, and the 

prosecution made no mention of the incident in its closing argument.” (Id. at 

p. 42.) Finally, the prosecution put on testimony by Officer Damon Aoki, who, 

after arresting defendant, heard defendant say he would have shot Aoki “if he had 

had a gun.” Although this statement was admissible to show defendant’s 

consciousness of guilt (id. at p. 31), defendant’s guilt was not in doubt. Officer 

Aoki’s testimony thus had limited value at the penalty retrial. (See id. at p. 31

[“Despite presenting this testimony to the jury, the prosecution made no mention 

of it during closing arguments.”].)

The witnesses for the defense, meanwhile, expanded on the testimony they 

had given in the first penalty phase. Defendant’s brother Antione added that their 

mother had abused them when they were children. Defendant’s mother added that 

she had forced defendant to participate in a gang-related fight and that she had 

been raped in front of him on multiple occasions. It was during this powerful 

testimony by defendant’s mother — testimony that the jury might reasonably have 

expected to elicit an emotional response from defendant — that the trial court’s 

error in forcing defendant to wear the stun belt may have been most prejudicial.

In sum, there is a reasonable possibility that the unlawful use of the stun 

belt adversely affected defendant’s demeanor and in turn influenced the jury’s 

decision to impose death. On this record, I am unable to conclude that the stun 

belt error was harmless beyond a reasonable doubt.

D.

The court today holds otherwise based on a different reading of the record. 

Its harmless error analysis consists of three contentions: First, any time defendant 
36

complained about the stun belt, his complaints were adequately addressed. 

Second, any time defendant was not complaining about the stun belt, we must 

infer that the stun belt did not adversely affect him. Third, the record affirmatively

demonstrates the absence of prejudice. None of these contentions withstands 

scrutiny.

As to the first, the court would have us believe that the pillow provided to 

defendant and the adjustments made to the placement and tightness of the stun belt 

on defendant’s body were sufficient to address his complaints at the start of the 

guilt phase and again at the start of the penalty retrial. (Maj. opn., ante, at pp. 20, 

23.) But this rendition is belied by statements at the penalty retrial that the court 

simply ignores, statements informed by defendant’s actual experience of wearing 

the belt throughout the guilt phase and first penalty phase. (See ante, at pp. 18–19, 

30.) I quote them again here: On October 21, 1999, defense counsel objected to 

the stun belt at the penalty retrial, saying “it’s extremely uncomfortable for the 

defendant.” When the trial court said, “I have not been aware . . . that there has 

been that much of an uncomfortable feeling for the defendant by reason of the 

react belt,” defense counsel pressed the point: “The trial days are long, and what 

my concern is is that the belt is uncomfortable. It’s a large object that’s placed on 

the kidney area, the liver area on his back. It makes it difficult to sit back. . . . But 

we did in the last trial try to alleviate that discomfort by giving him a pillow to 

kind of even out the back so when he sat back, he wouldn’t be putting all the 

pressure onto that react unit that’s strapped to him. That caused a little bit of 

relief, but I don’t think significant.” The trial court again provided defendant with 

a pillow but took no other steps to address defendant’s complaints. Thus, 

defendant was no better off during the penalty retrial than he had been during the 

guilt phase and first penalty trial — as defense counsel put it, “extremely 

uncomfortable.”
37

Further, the court discounts the attending deputy’s observation on April 6, 

1999 that defendant was worried about accidental activation (“I think he’s 

concerned [leaning back is] going to activate it”). The court says that “the defense 

offered no indication that defendant actually had this worry” and that 

“[t]hroughout the duration of both trials, the defense never once stated or 

suggested that the threat of electric shock affected defendant’s mental state or that 

the belt caused him to experience mental stress or impairment.” (Maj. opn., ante, 

at p. 20.) Apparently the court would have us believe that the deputy’s 

observation of defendant’s concern about accidental activation lacks reasonable 

credibility because defendant did not state the concern himself or through counsel. 

If common sense were not enough to refute this suggestion, one need only consult 

our opinion in Mar, where we prominently discussed the risk of accidental 

activation not once, not twice, not thrice, but six different times as “a strong reason 

to proceed with great caution in approving the use of this device.” (Mar, supra, 28 

Cal.4th at p. 1205; see id. at pp. 1206, 1219, 1226, 1228–1229; see also Durham, 

supra, 287 F.3d at p. 1306 [“It is reasonable to assume that much of a defendant’s 

focus and attention when wearing one of these devices is occupied by anxiety over 

the possible triggering of the belt. A defendant is likely to concentrate on doing 

everything he can to prevent the belt from being activated, and is thus less likely to 

participate fully in his defense at trial.”].)

The court’s treatment of defendant’s concern about accidental activation is 

symptomatic of its second thesis, that silence equals acquiescence for purposes of 

harmless error analysis. The court assigns great significance to the fact that “the 

defense made no mention at either trial of the stun belt’s potential or actual effects 

on defendant’s mental state” and to defendant’s “complete failure to mention the 

stun belt or its effects in any of his various motions for a mistrial, a new guilt trial, 

and a new penalty trial.” (Maj. opn., ante, at p. 23.) But why would we expect 
38

defendant to have continued complaining about the effects of the belt after his 

objections to wearing it had proven fruitless? By the time defendant was forced to 

wear the belt during the penalty retrial, the trial court had already rebuffed his 

objections twice — the second time notwithstanding defense counsel’s statement 

that it had been “extremely uncomfortable” for defendant to wear the belt 

throughout the guilt phase and first penalty phase. Perhaps defendant believed, 

reasonably, that he had already made a sufficient record. Perhaps defendant 

believed, reasonably, that under the only authority at the time (see Garcia, supra, 

56 Cal.App.4th at p. 1356, disapproved by Mar, supra, 28 Cal.4th at p. 1219), 

there was no point in complaining further.

Further, the court says the record provides no indication that defendant’s 

lack of emotion resulted from wearing the stun belt or that he feared activation of 

the stun belt when the trial court warned, right before his mother’s testimony, that 

“the bailiff will take actions” if he engaged in verbal or nonverbal communication 

with his family. (Maj. opn., ante, at p. 21.) But these possibilities are surely 

reasonable. They are no less reasonable than the court’s own conjectures that the 

stun belt did not contribute to defendant’s lack of emotion and that defendant did 

not construe the trial court’s warning as a reference to the stun belt.

More fundamentally, the court’s one-sided inferences from silence in the 

record effectively place the burden on defendant to have made a record 

demonstrating prejudice from the stun belt error. Indeed, the court says as much 

when it declares that “reversal of a judgment is unwarranted when the record on 

appeal is devoid of evidence that the unjustified use of . . . a stun belt had any 

adverse effect.” (Maj. opn., ante, at p. 14.) That is plainly not the law. In 

Riggins, the dissent argued that the defendant was not legally incompetent and that 

“[t]he record does not reveal any other form of unfairness relating to the purported 

side effects of [the forced medication]. Riggins has failed to allege specific facts 
39

to support his claim that he could not participate effectively in his defense. He has 

not stated how he would have directed his counsel to examine or cross-examine 

witnesses differently. He has not identified any testimony or instructions that he 

did not understand. The record, moreover, does not even support his assertion that 

[the medication] made him worse off.” (Riggins, supra, 504 U.S. at pp. 149–150 

(dis. opn. of Thomas, J.).) But the high court in Riggins disclaimed any need for 

the defendant to prove “actual prejudice” and reversed the conviction on the 

ground that prejudice was “clearly possible.” (Id. at p. 137.)

Similarly, in Mar, we said “[i]t is not explicitly apparent from the transcript 

of the proceedings what effect the stun belt had on the content of defendant’s 

testimony or on his demeanor while testifying.” (Mar, supra, 28 Cal.4th at 

p. 1213.) The record showed only that the defendant was “nervous while 

testifying,” which “is, of course, not unusual for a defendant, or any witness,” and 

that defendant at one point expressed concern about accidental activation. (Id. at 

p. 1224; see id. at p. 1232 (dis. opn. of Brown, J.).) Yet, in reversing the 

conviction, we said that “in view of the nature of a stun belt and the debilitating 

and humiliating consequences that such a belt can inflict,” “it is reasonable to 

conclude that defendant’s being required to wear the stun belt had at least some 

effect on his demeanor while testifying.” (Id. at pp. 1224–1225.)

The Eleventh Circuit in Durham likewise found prejudicial stun belt error 

on a record that contained only nonspecific assertions by defense counsel that 

wearing the belt would induce “ ‘extreme fear’ ” that “chills the exercise of the 

defendant’s trial rights, including altering his outward appearance and affecting 

his decision whether or not to testify, his ability to follow the proceedings, the 

substance of his communication with counsel, and his ability to actively cooperate 

with and assist counsel.’ ” (Durham, supra, 287 F.3d at pp. 1310–1311 (conc. 

opn. of Tjoflat, J.).) Nothing in the record indicated that any of these concerns 
40

actually came to pass during the trial. Yet the court reversed the conviction 

because “[t]he government ha[d] not demonstrated that Durham’s defense was not 

harmed by” the stun belt. (Id. at p. 1309.) Applying Chapman, the court said it is 

not “sufficient for the government to argue that the defendant cannot name any 

outcome-determinative issues or arguments that would have been raised had he 

been able to participate at trial. Not only does such an argument impermissibly 

transfer the burden of proof back to the defendant, but it also would eviscerate the 

right in all cases where there is strong proof of guilt.” (Ibid.)

As Riggins, Mar, and Durham illustrate, silence in the record with respect 

to actual prejudice does not dispel a reasonable possibility of prejudice, especially 

when the error is one that carries a “substantial risk” of prejudice. (Durham, 

supra, 287 F.3d at p. 1305; Stevens, supra, 47 Cal.4th at p. 632.) To say that 

“reversal of a judgment is unwarranted when the record on appeal is devoid of 

evidence that the [error] had any adverse effect” (maj. opn., ante, at p. 14) is to 

effectively place the burden on defendant to demonstrate actual prejudice. In this 

respect, today’s opinion contravenes Chapman.

The court’s third and last resort is its remarkable claim that the record 

“affirmatively demonstrat[es] the assessment of defense counsel that the jurors’ 

consideration of defendant’s courtroom demeanor would have a favorable effect 

on their penalty determination.” (Maj. opn., ante, at p. 22.) According to the 

court, this assessment may be inferred from defense counsel’s insistence on two 

special jury instructions proposed in a May 25, 1999 filing at the first penalty trial 

and again in a November 18, 1999 filing at the second penalty trial. Here is what 

the two proposed instructions say: (1) “PROPOSED PENALTY PHASE 

INSTRUCTION NO. 10 [¶] Mitigating factors are not necessarily limited to those 

adduced from specific evidence offered at the sentencing hearing such as character 

testimony. A juror might be disposed to grant mercy based on other factors, such 
41

as a humane perception of the developed during trial.” (2) “PROPOSED 

PENALTY PHASE INSTRUCTION NO. 11 [¶] If a mitigating circumstance or 

an aspect of the defendant’s background or his character called to the attention of 

the jury by the evidence or its observation of the defendant arouses mercy, 

sympathy, empathy, or compassion such as to persuade you that death is not the 

appropriate penalty, you may act in response thereto and impose a sentence of life 

without possibility of parole.” At the May 24, 1999 and November 18, 1999 

hearings on these proposed instructions, the parties and the trial court regarded 

them as essentially the same.

As an initial matter, this is an argument entirely of the court’s own 

invention, as the Attorney General nowhere relied on this aspect of the record to 

demonstrate harmless error. The court’s reliance on this argument seems a rather 

questionable way to adjudicate whether the state has carried its burden of proving 

the absence of prejudice beyond a reasonable doubt. (See Chapman, supra, 386 

U.S. at p. 24.)

In any event, it is no wonder that the Attorney General never made this 

argument in her briefing or at oral argument. From the text of the two proposed 

instructions and from the transcripts of the two hearings on those instructions, it is 

clear that defense counsel sought to inform the jury that if its observation of 

defendant aroused mercy, sympathy, empathy, or compassion, then it could 

consider this factor in choosing life over death. Defense counsel gave no 

indication that he believed the jury would find defendant’s courtroom demeanor to 

be mitigating. As defense counsel explained at the November 18, 1999 hearing, 

he was simply seeking to enumerate for the jury as many potentially mitigating 

factors as he could. The court’s assertion that “the only reasonable inference” is 

that the stun belt did not negatively affect defendant’s demeanor (maj. opn., ante, 

at p. 22) would be more convincing if the proposed instructions had merely told 
42

the jury it was free to consider defendant’s demeanor in its sentencing decision —

and left it at that. But a proposed instruction that says the jury may take demeanor 

into account if the jury finds it to be mitigating does not firmly indicate that 

defense counsel believed defendant’s demeanor would weigh in his favor. Rather, 

the conditional language of the proposed instruction, coupled with defense 

counsel’s opposition to any prosecutorial comment on defendant’s demeanor, 

suggests that defense counsel saw a downside risk to the jury’s consideration of 

demeanor. Indeed, the protective tilt of the proposed instructions was why the 

prosecutor opposed the instructions and why the trial court at the penalty retrial 

refused to give them. The court’s reliance on this sole aspect of the record as 

“affirmatively demonstrating” the absence of prejudice (id. at p. 22) serves only to 

underscore the lengths to which the court must go to reach its holding today.

Finally, the court’s harmless error analysis is laced with string cites 

purporting to show that “reversal of a judgment is unwarranted when the record on 

appeal is devoid of evidence that the unjustified use of shackles or a stun belt had 

any adverse effect.” (Maj. opn., ante, at p. 14, italics added; see id. at pp. 14–15, 

24–25.) But this conflation of shackles and stun belts elides an important 

distinction.

Most of the cases cited by the court involved traditional physical restraints 

like shackles, leg restraints, or handcuffs. We have consistently found the use of 

such restraints to be harmless where the jury never saw the restraints and where no 

evidence suggests they affected the defendant’s decision to testify or any other 

aspect of the defense. (See People v. Foster (2010) 50 Cal.4th 1301, 1322 

(Foster); People v. Letner and Tobin (2010) 50 Cal.4th 99, 155 (Letner); People v. 

Ervine (2009) 47 Cal.4th 745, 773–774; People v. Wallace (2008) 44 Cal.4th 

1032, 1051; People v. Combs (2004) 34 Cal.4th 821, 838–839; People v. Anderson

(2001) 25 Cal.4th 543, 596; Cox, supra, 53 Cal.3d at p. 652.) These cases stand to 
43

reason because the principal vector of prejudice when it comes to shackles, leg 

restraints, or handcuffs is its visibility to the jury, which erodes the presumption of 

innocence.

By contrast, “the greatest danger of prejudice [from improper use of a stun 

belt] arises from the potential adverse psychological effects of the device upon the 

defendant rather than from the visibility of the device to the jury.” (Mar, supra, 

28 Cal.4th at p. 1225, fn. 7.) No case law suggests that traditional restraints have 

the potential to achieve the “ ‘ “total psychological supremacy” ’ ” over the 

defendant that a stun belt is designed to achieve. (Id. at p. 1226.) Indeed, this 

court in Letner quoted Mar’s graphic description of what a stun belt does to a 

person when activated and said “[t]here is no evidence that the leg brace worn by 

Letner created a remotely comparable level of potential pain, injury, and 

humiliation, such that Letner’s ability to concentrate and participate in the trial 

proceedings similarly might have been affected.” (Letner, supra, 50 Cal.4th at 

p. 156.) Thus, our cases finding the invisible use of traditional restraints harmless 

in the absence of affirmative evidence that the defense was impaired do not 

suggest an equivalent rule for stun belts.

Our cases that have found erroneous use of a stun belt to be harmless 

likewise do not support today’s holding. In People v. Manibusan (2013) 58 

Cal.4th 40, the defendant expressly agreed to wear the belt, so it is unsurprising 

we found any error to be harmless in the absence of evidence showing an adverse 

effect. (Id. at pp. 85–86; accord, Stanford v. State (Ga. 2000) 528 S.E.2d 246, 

249–250 [finding harmless error where the defendant did not object to wearing a 

stun belt and the record did not show prejudice]; State v. Johnson (Ohio 2006) 858 

N.E.2d 1144, 1179–1180 [same].) In People v. Virgil, supra, 51 Cal.4th 1210, we 

held that the trial court did not err in ordering the use of a stun belt, and we did not 

engage in harmless error analysis. (Id. at p. 1271.) In Foster, the defendant did 
44

not object to the stun belt, and we deemed the issue forfeited. (Foster, supra, 50 

Cal.4th at pp. 1321–1322.)

That leaves Howard, supra, 51 Cal.4th 15, the case on which the court 

principally relies. (Maj. opn., ante, at p. 22.) But our finding of harmless error in 

that case turned “[m]ost significantly” on our observation that “at sentencing 

defendant made an extended statement to the court regarding his mental state 

during trial. He made no reference to a stun belt or its effects on his demeanor 

while testifying. Instead, defendant claimed his testimony had been affected by 

antipsychotic medication.” (Howard, at p. 29.) We concluded that “the record 

affirmatively dispels any notion that [the defendant] was prejudiced” because the 

stun belt “had no appreciable effect on him, even by his own account.” (Id. at 

pp. 28, 30; see id. at p. 30, fn. 6 [“[T]he concern that defendant may have been 

psychologically affected by a stun belt in this case was put to rest by his own 

statements to the court about his mental state during trial.”].) Because the record 

here does not include any fact remotely similar to the fact we found dispositive in 

Howard, it strains credulity to say that the record in this case, as in Howard,

“affirmatively dispels any notion of prejudice.” (Maj. opn., ante, at p. 24.)

In sum, today’s opinion dismisses any possibility of prejudice at the penalty 

retrial as “pure conjecture.” (Maj. opn., ante, at p. 21.) Even though defendant 

repeatedly complained about the belt, even though he naturally worried about 

accidental activation, even though the trial court observed “lack of emotion” in his 

demeanor, even though the trial court warned right before his mother testified that 

“the bailiff will take actions” if he engaged in any verbal or nonverbal 

communication with his family, and even though the first jury hung at the penalty 

phase, the court says it is certain beyond a reasonable doubt that the jury would 

have reached the same verdict absent the stun belt error. Now that is pure 
45

conjecture — and it is conjecture based on reasoning plainly at odds with 

Chapman.

III.

Observers of this court have long noted the prominent role of harmless 

error doctrine in our death penalty jurisprudence. One study of 215 capital cases 

decided by this court between 1986 and 1996 reported that the court found guilt 

phase error in 55% of the cases and penalty-phase error in 74% of the cases, but 

found 93% of guilt phase errors and 85% of penalty-phase errors to be harmless, 

producing a reversal rate of 3.8% for guilt verdicts and 11% for death verdicts. 

(Kamin, Harmless Error and the Rights/Remedies Split (2002) 88 Va. L.Rev. 1, 

70.) By contrast, 33% of the death sentences meted out nationally from 1986 

through 1996 have been overturned on appeal or collateral review, and the reversal 

rate is even higher for death judgments prior to 1986. (U.S. Dept. Justice, Bur. of 

Justice Statistics, Capital Punishment, 2001 – Statistical Tables (2013) p. 19, 

table 16, available at http://www.bjs.gov/content/pub/pdf/cp11st.pdf [as of Mar. 3, 

2014]; see Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973–

1995 (2000) 78 Tex. L.Rev. 1839, 1850 [reporting that state and federal courts 

nationwide found prejudicial error in 68% of capital cases between 1973 and 

1995].)

Unfortunately, the dubious reasoning in today’s decision is not an isolated 

lapse in our harmless error jurisprudence. For example, just as the court here 

supplies an argument on the state’s behalf that the state itself never made in 

confronting its burden to demonstrate harmless error (ante, at p. 41), the court in 

another case recently found the omission of a reasonable doubt instruction to be 

harmless under Chapman despite the state’s concession in its answer brief that the 

error required reversal. (People v. Aranda (2012) 55 Cal.4th 342, 379, 383 (conc. 

& dis. opn. of Liu, J.) (Aranda).)
46

In addition, the court’s willingness to infer no reasonable possibility of 

prejudice where the record is silent or indeterminate as to actual prejudice is a 

recurring maneuver in our harmless error doctrine. Consider, for example, the 

reasoning in People v. Whitt (1990) 51 Cal.3d 620 (Whitt). The defendant in Whitt

had taken the witness stand during the penalty phase of his capital trial. In 

response to two questions posed by defense counsel — “Do you want to live?” and 

“Why do you deserve to live?” — the prosecutor objected, and the trial court 

sustained the objections. (Id. at p. 646.) This court held that the trial court’s 

rulings, by denying the defendant an opportunity to plead for his life before the 

jury, “violated his federal constitutional right to have the sentencer consider all 

relevant mitigating evidence.” (Id. at p. 647.) But the court went on to find the 

error harmless under Chapman: “In this case, though the question ‘Why do you 

deserve to live?’ might produce a significant answer, the phraseology is so 

inherently broad, and the range of conceivable answers so vast, that we cannot 

know whether defendant’s actual response might have influenced the penalty 

determination.” (Id. at p. 648.) Reversal was not warranted under these 

circumstances, this court concluded, because the defendant had not made a record 

of what he would have said and thus prejudice could not be assessed. (Ibid.) As 

to Chapman’s mandate that the burden is on the state to prove the error was 

harmless beyond a reasonable doubt, the court said “the ‘state-burden’ language in 

Chapman does not literally mean that an appellate court must reverse the judgment 

because the prosecution has failed to place evidence in the record showing that the 

error was harmless. Rather, Chapman . . . [means that] where federal 

constitutional error occurs and prejudice can be assessed from the record, there is 

a strong presumption that the defendant was prejudiced.” (Id. at p. 649, italics 

added.)
47

Three justices dissented. Justice Mosk explained that the court’s “analysis 

rests on an implied premise that the burden of proof as to prejudice rests on the 

person complaining of the error. But as the very words of Chapman demonstrate, 

that premise is radically unsound: ‘Certainly error, constitutional error, . . . casts 

on someone other than the person prejudiced by it a burden to show that it was 

harmless . . . . [T]he beneficiary of a constitutional error [is required] to prove 

beyond a reasonable doubt that the error complained of did not contribute to the 

verdict obtained.’ (386 U.S. at p. 24.)” (Whitt, supra, 51 Cal.3d at p. 666 (conc. 

& dis. opn. of Mosk, J.).) “The People simply fail to carry that burden. Because 

of the error, we cannot know what specific answers defendant might have given or 

what precise force those answers might have carried. The void in the record is 

indeed disturbing. But it is the People that created the void. And it is the People 

that must bear the responsibility.” (Ibid.) Justice Kennard similarly explained: 

“To condition an evaluation of federal constitutional error on a defendant’s offer 

of proof, as the majority does, relieves the beneficiary of the error (the 

prosecution) of the obligation to demonstrate that the error did not affect the 

verdict, and impermissibly shifts to the defendant the burden of proving 

prejudice.” (Id. at pp. 671–672 (conc. & dis. opn. of Kennard, J.); see also id. at 

pp. 668–669 (conc. & dis. opn. of Broussard, J.).)

Whitt was not wrong to say that “the ‘state-burden’ language in Chapman

does not literally mean that an appellate court must reverse the judgment because 

the prosecution has failed to place evidence in the record showing that the error 

was harmless.” (Whitt, supra, 51 Cal.3d at p. 649.) The state’s burden in a 

harmless error inquiry is not a traditional evidentiary burden of production. As the 

high court has observed, harmless error inquiry “does not involve a judge who 

shifts a ‘burden’ to help control the presentation of evidence at a trial, but rather 

involves a judge who applies a legal standard (harmlessness) to a record that the 
48

presentation of evidence is no longer likely to affect.” (O’Neal, supra, 513 U.S. at 

p. 436.)

However, to say that the prosecution bears no burden of production is not to 

say that reversal is unwarranted whenever a defendant who objected to the error 

has not made a record from which a reviewing court may assess prejudice. Whitt

found harmless error on the rationale that “we cannot know whether defendant’s 

actual response might have influenced the penalty determination” (Whitt, supra, 

51 Cal.3d at p. 648); in other words, the trial court’s error might or might not have 

affected the verdict. If the infirmity of this reasoning were not already evident in 

light of Chapman, it is surely evident in light of O’Neal, where the high court, 

relying on Chapman, made clear that an error cannot be found harmless where 

“the matter is so evenly balanced that [the court] feels [itself] in virtual equipoise 

as to the harmlessness of the error.” (O’Neal, supra, 513 U.S. at p. 435.) 

Similarly, in Riggins, the high court reversed a capital conviction where “[e]fforts 

to prove or disprove actual prejudice from the record before us would be futile, 

and guesses whether the outcome of the trial might have been different [without 

the error] would be purely speculative.” (Riggins, supra, 504 U.S. at p. 137.) 

Whitt misapplied Chapman and cannot survive the high court’s subsequent 

precedent. And yet, this court continues to cite Whitt for the proposition that no 

cognizable prejudice can result from the erroneous exclusion of potentially 

mitigating testimony at the penalty phase of a capital trial unless the defendant can 

show from the record that the testimony would have affected the verdict. (See, 

e.g., People v. Earp (1999) 20 Cal.4th 826, 891–892, citing Whitt, at p. 648.) The 

court’s opinion in this case is cut from the same cloth.

IV.

Today’s decision confirms that “[a]ppellate judges . . . are often reluctant to 

open the way to a new trial, given not only the risk of draining judicial resources 
49

but also the risk that a guilty defendant may go free” or escape just punishment. 

(Traynor, supra, at p. 50.) Yet “[t]he very reluctance of judges to confront such 

risks . . . serves to condone errors that may affect a judgment and thus engenders a 

still more serious risk, the risk of impairing the integrity of appellate review.” 

(Ibid.) The Chapman rule — both its reasonable doubt standard and its allocation 

of the burden of persuasion — has long endured as the proper accommodation of 

these competing risks. When a reviewing court fails to faithfully apply the 

standard, it compromises the fairness of the proceeding, usurps the jury’s function, 

and weakens the role of appellate review in deterring future errors.

Regrettably, today’s decision is only the most recent instance in which this 

court has deviated from Chapman’s mandate. The deviations have occurred in 

capital cases (see, e.g., Gamache, supra, 562 U.S. at p. __ [131 S.Ct. at p. 592] 

(statement of Sotomayor, J.); Whitt, supra, 51 Cal.3d at pp. 666–668 (conc. & dis. 

opn. of Mosk, J.)) as well as noncapital cases (see Aranda, supra, 55 Cal.4th at 

p. 377 (conc. & dis. opn. of Liu, J.)). Given the precedential force of these 

decisions, it is reasonable to worry that Chapman will continue to mean something 

different in the courts of California than what the high court has repeatedly said it 

means.

Today’s opinion signals a retreat from the rigorous standards governing the 

use of stun belts and similar devices. It also deviates from the degree of accuracy 

and reliability that is required when a jury is entrusted to make the most 

consequential decision allowed to be made in a court of law. For these reasons, I 

respectfully dissent from the court’s judgment upholding the sentence of death. In 

all other respects, I join the court’s opinion.

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jackson

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S086269

Date Filed: March 3, 2014

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Edward Webster and Russell Schooling

__________________________________________________________________________________

Counsel:

Gilbert Gaynor, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Adrianne S. 

Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gilbert Gaynor

Law Office of Gilbert Gaynor

P.O. Box 41159

Santa Barbara, CA 93140-1159

(805) 962-5842

Adrianne S. Denault

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2287