IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA MARTIN MIRACLE,

Defendant and Appellant.

S140894

Santa Barbara County Superior Court

1200303

December 3, 2018

Chief Justice Cantil-Sakauye filed the opinion of the court, in 

which Justices Chin, Corrigan, Cuéllar, Kruger and Ikola*

concurred. 

Justice Liu filed a dissenting opinion.

 

* Associate Justice of the Court of Appeal, Fourth Appellate District, 

Division Three, assigned by the Chief Justice pursuant to article VI, section 

6 of the California Constitution.
1

PEOPLE v. MIRACLE

S140894

Opinion of the Court by Cantil-Sakauye, C. J.

Defendant Joshua Martin Miracle pleaded guilty to the

first degree murder of Elias Raymond Silva (Pen. Code, §§ 187, 

subd. (a), 189; further undesignated statutory references are to 

the Penal Code), and to assault with a deadly weapon, a knife, 

on Jaime Alfaro Lopez (§ 245, subd. (a)(1)). He admitted two 

special circumstances: that he intentionally killed Silva by 

means of lying in wait (§ 190.2, subd. (a)(15)), and that he 

intentionally killed Silva while defendant was an active 

participant in a criminal street gang and the murder was 

carried out to further the activities of the gang (§ 190.2, subd. 

(a)(22)). In connection with the murder of Silva, he admitted 

the allegations that he personally used a deadly or dangerous 

weapon, a knife, (§ 12202, subd. (b)(1)), and that the murder 

was committed for the benefit of, at the direction of, or in 

association with a criminal street gang, with the specific intent 

to promote, further, and assist in criminal conduct by gang 

members (§ 186.22, subd. (b)(1)). In connection with the

assault on Lopez, he admitted the allegations that he 

personally used a deadly or dangerous weapon, a knife, 

(§ 12202, subd. (b)(1)), and that he personally inflicted great 

bodily injury (§ 12202.7, subd. (a)). At the penalty trial, the 

jury returned a verdict of death. This appeal is automatic. 

(Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the 

judgment.
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Opinion of the Court by Cantil-Sakauye, C. J.

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I. STATEMENT OF FACTS

A. Evidence of the Charged Crimes

1. Murder of Elias Silva

Because defendant pleaded guilty to the charges and 

allegations, evidence related to the crimes was submitted at 

the penalty phase to establish the circumstances of the crimes. 

(§ 190.3, subd. (a).) 

Elias Silva was killed on Saturday night or Sunday 

morning (October 2 or 3, 2004) in Robert Galindo’s apartment. 

Galindo agreed to testify pursuant to an agreement that he 

plead guilty to voluntary manslaughter in connection with the 

death of Silva. As described below, defendant and Robert 

Ibarra spent several days in Galindo’s apartment, coerced and 

threatened Galindo to lure Silva to the apartment, and then 

stabbed Silva 48 times. 

Galindo and Ibarra had been friends for about three 

years, and in the days before Silva was killed, they consumed

methamphetamine together in Galindo’s apartment. Galindo 

was also friends with Danny Ramirez, who had arranged with 

Galindo to come to Galindo’s apartment on Thursday night, 

September 30, to give Silva a tattoo. When Ramirez arrived at 

the apartment, defendant was with him. Galindo had not met 

defendant before that evening. Silva also came to the 

apartment, and he and Ramirez discussed the tattoo, but

apparently agreed to do the tattoo the next day. Ramirez then 

asked if he and defendant could stay at Galindo’s apartment 

overnight. 

The morning of Friday, October 1, while Galindo was 

showering, Silva came by the apartment and picked up 

Ramirez, leaving Galindo, Ibarra, and defendant in the 
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apartment. Galindo asked defendant why he was still there, 

and defendant told him Ramirez would come back for him. 

Ibarra left the apartment Friday night, but Galindo let

defendant stay, because Galindo assumed Ramirez would 

eventually come back to get defendant. 

On either Friday or Saturday, Galindo went to see Silva, 

bothered by the fact that when Silva came to the apartment to 

discuss the tattoo, he did not say “hi” to Galindo like he usually 

did. When Galindo asked Silva to explain, Silva told him that 

defendant was no good and that Galindo should get him out of 

his apartment. 

Saturday morning, Ibarra returned to the apartment. 

During the day, defendant and Ibarra spent a substantial 

amount of time in Galindo’s bathroom, consuming 

methamphetamine. Ibarra left the apartment at some point, 

and when he returned at around 8:30 or 9:00 p.m., the mood in 

the apartment changed. Ibarra was “wired,” “antsy,” in “a very 

hyper mood.” Galindo inquired regarding the purpose of a 

duffel bag Ibarra brought back with him, and Ibarra said it 

was for Ibarra’s and defendant’s clothes. Galindo heard 

defendant talking about needing to take care of a “rat,” which 

Galindo understood to refer to someone who was cooperating 

with law enforcement. 

At some point, either defendant or Ibarra asked Galindo 

to call Silva, who sold methamphetamine, to bring drugs to the 

apartment. Galindo did not have a telephone, so he used 

Ibarra’s mobile phone. Galindo called Silva, and Silva told 

Galindo that he did not want to have anything to do with 

“them,” and that Galindo should “get them out of your house.” 

Thereafter, Ibarra told Galindo to call Silva again. Because 
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Ibarra’s telephone had to be charged, Ibarra suggested that 

Galindo go to a payphone to make the call. 

Galindo left, but did not call Silva. When he returned to 

his apartment, defendant and Ibarra were in the bathroom, 

apparently consuming more methamphetamine. Defendant 

and Ibarra asked Galindo to call Silva again. Galindo then 

called wrong numbers a few times on Ibarra’s telephone, and 

acted like he was calling Silva. Defendant and Ibarra told him 

to keep trying, and at some point, Galindo said he would go out 

to get some cigarettes and would try calling from the payphone 

again. When Galindo returned, Ibarra continued to urge him 

to call, and Galindo told him that he had left voicemail 

messages. 

At this point, defendant was in the kitchen, taping the 

loose handle on a butcher knife from Galindo’s kitchen. 

Defendant and Ibarra continued to tell Galindo to call Silva, 

and Galindo responded that he had already called Silva too 

many times. Ibarra was becoming more persistent about 

calling Silva, and both defendant and Ibarra were becoming 

agitated with Galindo. Galindo asked, “Why are you doing this 

to me?” Ibarra told him to “just shut the fuck up and call him.” 

Galindo then said he would go to the payphone and call Silva 

one more time, but he did not call Silva. 

When Galindo returned, his furniture had been moved 

from the living room to the kitchen area, leaving more open 

space in the living room. Galindo asked why his belongings 

had been moved, and Ibarra told him to shut up and call Silva. 

Defendant then brought out the butcher knife, stood behind 

Galindo, put his arm around Galindo, and held the knife by 

Galindo’s throat or upper chest. Defendant told Galindo, “You 
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5

need to call.” In addition, defendant wanted to listen to 

Galindo’s call because he and Ibarra did not believe that 

Galindo was calling Silva. Yelling back and forth ensued, and 

Galindo was crying. Defendant told Galindo, “I don’t care what 

you say to him to get him over here, you just need to get him 

over here.” 

Galindo called Silva and left a message that Galindo’s 

cousins were in town, they wanted to party, and Silva should 

bring some drugs. Within a few minutes, Silva called back, 

and Galindo spoke to Silva while defendant continued to hold a 

knife to him. After confirming that his cousins were still there, 

Galindo told Silva to meet him in the back. Galindo had never 

before told Silva to meet him in the back, and he thought Silva 

might guess that something was amiss. When Silva called 

again and said he was two minutes away, defendant told 

Galindo not to go out, and instead to meet Silva at the 

apartment door. Silva called again, asked why Galindo did not 

come out, and said he was coming to the door. 

Ibarra then stood in a position to be the first person Silva 

would see when the door opened. Defendant stood behind 

Galindo to make sure Galindo opened the door. As Silva 

started to enter, Ibarra pulled him inside. Defendant pushed 

Galindo to the side, rushed at Silva, and helped Ibarra drag 

him into the center of the room. When defendant pushed 

Galindo to the side, defendant still had the knife in his hand. 

Defendant closed the door and told Galindo to lock it, but 

Galindo left the apartment to look for Silva’s “homeboys.” 

Galindo did not find them. He then went to look for his 

roommate Phillip, because Ibarra had said that he was going to 

kill anyone who came through the apartment door. About 20 
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6

or 25 minutes after leaving the apartment, Galindo headed 

back to the apartment, and saw a trail of blood drops and 

bloody footprints in the direction of the parking lot where Silva 

would have parked his car. Galindo returned to his apartment, 

and discovered broken furniture and Silva lying in blood. 

Galindo fled again, looking for Phillip. 

Deputy Sheriff Lawrence Hess and a second deputy 

arrived at the apartment in response to a later 911 call. They 

saw a trail of blood leaving the apartment, and when they 

entered the apartment, they saw that furniture had been 

moved and tipped over, there was a “large amount of blood in 

the living room area,” and Silva’s body was on the carpet. 

Defendant and Ibarra were arrested in San Diego, 

driving Silva’s car. Ibarra had a puncture or stab-type wound 

to his leg, and there appeared to be a fresh blood stain on the 

floor of the car. Photographs taken after defendant was 

arrested showed “ESG” tattooed on the back of defendant’s 

head, and a number of small tattoos on his chest. 

The parties stipulated that Silva was stabbed 48 times. 

Photographs of many of the stab wounds were admitted, 

including a photograph of Silva’s heart with a stab wound in it. 

Lisa Hemman, a senior identification technician in the 

forensics unit of the Santa Barbara County Sheriff’s 

Department, identified various objects found in a duffel bag in 

the apartment, including a hammer or hatchet-looking item, 

two tarps, plastic sheeting, duct tape, pliers, and a workman’s 

knife. Galindo identified Ibarra in a videotape, purchasing 

items at a Home Depot. A receipt from the Home Depot 

reflected the purchase of a poly sheet, vinyl gloves, and a tarp. 

Hemman also identified in photographs wounds on the side 
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Opinion of the Court by Cantil-Sakauye, C. J.

7

and front of Silva’s neck, and numerous other injuries, most 

consisting of puncture or stabbing wounds. 

Finally, Detective Gary Siegel testified as a gang expert. 

In his opinion, the murder of Silva was for the benefit of the 

Eastside Gang. 

2. Assault with a Deadly Weapon on Jaime Lopez

Jaime Lopez testified that he was a member of the 

Eastside Gang, and that the “ESG” tattoo on the back of 

defendant’s head stood for “Eastside Gang.” He admitted

driving to a Circle K store on September 23, 2004, but stated 

that he did not see defendant there, and did not remember 

telling a grand jury that he saw defendant in the parking lot. 

Lopez further testified that he did not know how he got a stab 

wound on his back or a cut over his eye, and that he did not 

say anything to the contrary to the investigating detective, 

Gary Siegel. 

Detective Siegel testified that Lopez and defendant were 

members of the Eastside Gang, and that Lopez told him that 

defendant stabbed him on September 23, 2004, at a Circle K

store. He also testified that Lopez was very worried about the 

ramifications of testifying. Finally, Siegel testified that, in his 

opinion, the assault on Lopez was for the benefit of the 

Eastside Gang. 

B. Other Evidence

The People presented testimony concerning a violent

incident in the holding cell at the courthouse and two violent 

incidents in the county jail. They also presented a stipulated 

list of more than two dozen incidents of violence or threats by 

defendant from 1993 to 2005. This evidence is described below, 
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in connection with the discussion of defendant’s contention 

that he was subjected to excessive restraints in the courtroom. 

In addition, James Nalls, an investigator with the 

district attorney’s office, testified that he heard defendant 

make the following statements while in the courtroom on 

October 25, 2005. “I believe in accepting the consequences of 

my actions, good or bad, and maintaining my princip[les]

regardless of the cost, including death. I feel that if I’m willing 

to kill I should also be willing to die.” He also heard defendant 

state, “I didn’t show any mercy, so I’m not going to ask for any 

mercy.” Similarly, on August 9, 2005, Nalls heard defendant 

state during a telephone conversation, “The way I see it, if I’m 

willing to kill I should be willing to die, too.” 

Silva’s widow, Deanna Garcia testified that she and Silva

were together for 12 years, and had three children, ages nine, 

five, and three. Their children missed their father and asked 

about him every day. She tries to be strong for their children. 

Silva’s mother, Suzanne Silva, testified that she was close to 

her son. He had left behind his life with the Goleta 13 gang in 

Santa Barbara. He had a good job at the University of 

California, Santa Barbara, and spent time with his children, 

taking them fishing and camping. The events had been very 

hard for her grandchildren. She missed her son very much. 

Defendant’s advisory counsel engaged in some crossexamination, but defendant did not present any evidence at 

the penalty phase and declined to make a closing argument. 

At a pretrial hearing on October 25, 2005, defendant 

personally described at length his reasons for not presenting 

mitigating evidence, including the point that the jury may 

decide that he does not deserve the death penalty because he 
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9

was not making excuses for his actions and was willing to 

accept responsibility. His advisory counsel then asked him to 

make clear for the record that he was not seeking the death 

penalty and would be pleased if the jury sentenced him to life 

without the possibility of parole. Defendant responded, “It 

would be correct to assume that I’m not seeking the death 

penalty.” On November 21, 2005, the trial court held an in 

camera hearing with defendant and his advisory counsel to 

review all of the mitigating evidence obtained by the defense, 

and to confirm that defendant did not want the evidence 

presented. 

II. PRETRIAL PROCEEDINGS

As described more fully below, defendant sought to plead 

guilty to the capital murder charge and to admit a special 

circumstance allegation from the outset of the proceedings in 

March 2005. When his appointed counsel was unwilling to 

consent to a guilty plea, defendant asserted his right to 

represent himself. (See Faretta v. California (1975) 422 U.S. 

806 (Faretta).) The trial court granted defendant’s motion, and 

appointed advisory counsel to assist him. Advisory counsel 

reviewed all of the evidence with defendant, and eventually 

concluded that entering an unqualified guilty plea to the 

murder charge and admitting the special circumstance 

allegations was an intelligent tactic to try to avoid a death 

sentence. The trial court confirmed that advisory counsel had 

effectively acted throughout his appointment as counsel to 

defendant. The court allowed defendant to plead guilty to the 

capital charge and to admit the two special circumstance 

allegations. 
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Opinion of the Court by Cantil-Sakauye, C. J.

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A. Procedural History

Defendant’s first appearance in court following the grand

jury indictment was in early March 2005, when he agreed to 

continue his arraignment to later that month. At the later 

hearing, defendant’s counsel, Michael Carty, informed the 

court that defendant intended to make a motion to represent 

himself, and that defendant was aware that the court might 

want to research the implications of his proceeding in propria 

persona in a capital case. The trial court cautioned defendant 

regarding the serious and complex nature of the case, directed 

Carty to discuss all of the implications with defendant, and 

continued the matter. Carty disclosed that he had discussed 

the issue with defendant for three hours, and was of the 

opinion that defendant was capable of making that decision

under Faretta. (Faretta, supra, 422 U.S. at p. 835.) The trial 

court asked defendant to confer further with Carty, and to 

consider what the court had said. 

In early April, Carty informed the court that defendant 

had indicated to him on multiple occasions that he intended to 

plead guilty at the earliest possible time to counts 1 (murder) 

and 2 (attempted murder), and to admit at least one of the 

special circumstance allegations. Carty further disclosed that 

he had discussed with defendant section 1018, which prohibits 

a plea of guilty to a capital offense unless the defendant 

appears with counsel who consents to the plea. Although 

defendant wanted his counsel to consent to the plea that day, 

Carty declined to do so, principally because he was still 

reviewing the grand jury transcript and investigating 

witnesses. Therefore, Carty did not believe he could ethically 

support a change in defendant’s plea that day. He further 

explained that because he would not support defendant’s 
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desire to plead guilty that day, it was defendant’s wish to 

proceed with his motion to represent himself. Carty reiterated 

that he found no evidence of a mental incapacity that would 

preclude defendant’s self-representation. 

Carty then advised the court that if it granted 

defendant’s motion to represent himself, the court would be 

called upon to provide defendant with advisory counsel. He 

further informed the court that it was required “to set the 

scope and the functions of advisory counsel. . . . And I think 

that the Court ought to authorize advisory counsel to be 

involved in the change of plea so that you could satisfy Penal 

Code Section 1018.” In response to questioning by the court, 

Carty confirmed that the court could set the terms of the 

appointment of advisory counsel to require advisory counsel’s 

consent in order to enter a guilty plea. 

The court then obtained defendant’s confirmation that he

wanted to enter a guilty plea. Defendant further confirmed 

that he was comfortable with Carty’s representation of him, 

but because Carty was not willing to consent at that point in 

time to a guilty plea and an admission of the special 

circumstance allegations, defendant wanted to represent 

himself. Carty stated that his primary objection to defendant’s 

desire to plead guilty and admit the special circumstance 

allegations was that this course would make him eligible for 

the death penalty. The court explained to defendant that 

counsel was still reviewing the grand jury transcript and other 

materials, and was not yet in a position to consent to or oppose 

a guilty plea. The court further stated that if it granted a 

Faretta motion and appointed advisory counsel, “I can 

condition the appointment of advisory counsel on compliance 

with Penal Code Section 1018 which requires consent of that 
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advisory counsel.” The court declined to take defendant’s

guilty plea or admissions to the special allegations, stating 

that the case was “far too serious,” and that defendant’s 

counsel needed more time to review the record. 

Defendant responded that he wanted “to pursue the 

Faretta motions with the conditions Carty stipulated before.” 

Carty then stated that defendant “has very strong opinions 

about what type of evidence should be presented on his behalf 

at the penalty phase,” which would “pose a real problem to 

counsel. Because case law says that a defendant cannot 

prohibit counsel from presenting mitigation evidence over the 

objection of the defendant, that decision is placed entirely with 

trial counsel.” He further explained that “[a] facet of this 

Faretta decision is allowing Mr. Miracle to present or to limit 

evidence at the penalty phase that he’s never going to get me, 

or probably any other ethical lawyer, to go along with unless 

there’s some sort of agreement reached, and I think that Mr. 

Miracle is concerned that he wants to control what sort of 

mitigation evidence is presented with Judge or jury. That 

argues, I believe, for the Faretta position, the pro per position, 

and I’ve discussed that with Mr. Miracle at length.” The court 

reiterated that it would not rule on defendant’s motion to 

represent himself until Carty finished reviewing the entire

record. 

In mid-April, at the continued arraignment hearing, 

Carty stated that he had reviewed all relevant materials, had 

discussed his review with defendant, and would not consent to 

a guilty plea or admission of the special allegations. He 

explained that “the question is not limited to whether or not he 

should admit guilt or enter guilty pleas to the charged count 

and admit the special allegations, a big part of the picture has 
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to do with Mr. Miracle’s very strong preferences as to what 

material, if any, should be permitted at the penalty phase on 

the case, and whether or not he should cooperate with 

investigation and any expert witnesses that might be used in 

mitigation.” He stated that he did not want to “reveal 

confidential communications, but Mr. Miracle and I cannot 

agree on the presentation of penalty phase material.” Carty

added that he did not think defendant would be able to find an 

attorney who would agree not to present evidence in 

mitigation. The trial court then explained to defendant that he 

had a right to have counsel represent him at the guilt phase, 

and could then decide to represent himself at the penalty 

phase. Defendant confirmed that he understood that 

possibility, and Carty confirmed that he had explained that 

approach to defendant. In addition, Carty had provided 

defendant with a copy of section 1018 and had spent hours 

discussing its impact on defendant’s options. Carty also stated 

that defendant wanted to make an unequivocal request to 

proceed in propria persona at both phases of the trial. 

The court then turned to defendant, who confirmed that 

he wanted to represent himself, that he had reviewed the 

indictment with his attorney, and that he understood the 

nature of the charges and potential penalty. In response to 

further questioning, defendant stated that he had been 

through the court system in other cases, but he had never 

represented himself and had no legal training. With respect to 

his understanding of how the court system works, he felt he 

could become familiar with each stage as the case proceeded

and educate himself. He stopped regularly attending school at 

about age 11, when he was first sent to juvenile hall, and did 

not thereafter attend a full school year. He attended school at 
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the California Youth Authority beginning at age 14, taking 

both high school and college classes, and he could read and 

write. 

Defendant stated that he wanted to represent himself 

because Carty was interfering with his desire to plead guilty,

and Carty disagreed with defendant regarding the mitigating 

evidence to be presented. Defendant explained that he did not 

intend to cooperate with any professional investigators or 

psychologists, and did not intend to present any defense. The 

court asked defendant whether he understood that even if he 

represented himself, state law prohibited a plea of guilty, so he 

would not be able to avoid a trial. Defendant responded that 

he had been led to believe that if the court appointed an

“assistant counsel,” and that counsel was willing to consent to 

a guilty plea, that consent would be “just as legitimate as” 

Carty’s consent. The court responded that it was highly 

unlikely that advisory counsel would be in a position to consent 

to a guilty plea and admission of special allegations, so there 

would be a trial regardless of whether he represented himself. 

The court asked if he understood that he would be better off 

having counsel, and defendant disagreed, noting that he did 

not intend to offer any defense. 

Carty stated that defendant “has the mental capacity to 

waive the constitutional rights to counsel, he realizes the 

probable risk and consequences of his action, and his decision 

is voluntary and intelligent.” Carty further stated that he 

could not formally oppose defendant’s request to represent 

himself, but he had “spent hours and hours with Mr. Miracle

suggesting to him that this Faretta motion is ill-advised.” The 

court agreed that it was ill-advised, but granted the Faretta

motion. It stated that it would “appoint stand-by counsel, 
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sometimes called advisory counsel, to assist you.” It added 

that it was for the court to determine the parameters of 

counsel’s role, and that the issue was one that “we can explore 

in terms of exactly what role advisory counsel will play.” After 

the court twice referred to stand-by counsel, Carty stated that 

he had explained to defendant the difference between stand-by 

and advisory counsel, and that defendant was seeking advisory 

counsel. The court then inquired whether Carty might serve 

as advisory counsel, but he asked not to be appointed in light of 

defendant’s opposition to his continued representation. Carty 

observed that another attorney, Joe Allen, had considerable 

experience with respect to homicide and death penalty issues, 

and the court appointed Allen as advisory counsel in late April. 

Over the following weeks, as the court addressed the 

issue of the extent to which defendant would be allowed to 

review discovery materials that included witnesses’ names and 

contact information, Allen took an active role in the 

proceedings. The court took note of Allen’s active role, but

informed defendant that it would be directing its comments to 

defendant, and that defendant should respond to the court. 

Thereafter, however, defendant continued to look to Allen to 

represent him. When confusion regarding the court’s order 

concerning redaction and the defense investigator’s access to 

the materials arose, defendant asked the court to allow Allen 

to explain the matter to the court, and the court agreed. Allen 

then handled most of the discussions concerning the 

circumstances under which defendant would be allowed to 

review the materials. When the court explained to defendant 

that the decision regarding expenditures for investigative 

tasks was up to defendant, defendant asked whether he could 

give Allen permission to spend the investigative funds as Allen 
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saw fit, as defendant did not “want to be bothered with that.” 

Allen stated that defendant, the defense investigator, and 

Allen had been working together well in this regard, and the 

court responded that it wanted to make it clear to defendant 

that he was representing himself. 

At the continued arraignment in mid-June, defendant 

stated that he wanted to plead guilty to all of the charges and 

to admit the special allegations. The court reiterated that it 

could not accept a guilty plea from him, and Allen stated that 

he had not found any case law related to whether the 

concurrence of advisory counsel to a guilty plea would satisfy 

section 1018. Defendant asked the court it if would be inclined 

to accept his plea with advisory counsel’s consent, and the 

court stated it was not prepared to do so. It further explained 

that if defendant wanted to expedite the process, he could do so 

by asking for “a court trial within a relatively short period of 

time. And you can testify at your own trial. You can say to the 

Court whatever you desire. You’re also entitled to have a jury 

trial, you can ask for that jury trial within sixty days of today. 

You can tell the jury whatever you wish to that might assist 

them in making a determination as to your guilt or innocence.” 

It added that by choosing to represent himself, he had more 

limited options than he might have had with appointed counsel 

“at some point in time.” 

Defendant then asked if he could waive his right to 

continue to represent himself and have Allen appointed to 

represent him so that he could proceed with the arraignment. 

The court said it would not take that action that day. It stated 

that it had taken his decision to represent himself seriously, 

that they had discussed it and defendant had indicated why he 

wanted to represent himself. “You can’t just . . . flip back and 
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forth between representing yourself and having someone 

represent you. You now have advisory counsel and he’s there 

to advise you as you feel it necessary, but you’re representing 

yourself. I’m giving you your options now as an attorney and 

as a defendant. As an attorney representing yourself and as a 

defendant.” 

The court clarified that it was not suggesting that it 

would not allow defendant to withdraw his in propria persona

status in the future if he was sincere in wanting the assistance 

of counsel, but if his intent was “to play games with the Court, 

or to seek some other objective other than to have counsel 

appointed to assist you in preparing a competent defense, then, 

you know, we’re in a different posture. I may not grant that 

request.” The court then asked defendant why he wanted 

Allen to represent him when he had repeatedly indicated he 

wanted to represent himself. Allen interjected that the 

question elicited information related to defense strategy and 

defendant’s approach, and should occur in chambers. The 

court asked Allen if defendant wanted him appointed as 

counsel so Allen could concur in his guilty plea. Allen 

confirmed that was defendant’s purpose, and said he could not 

discuss in the presence of the prosecution defendant’s reasons 

or why Allen’s position was different from Carty’s with respect 

to whether counsel should agree to a guilty plea. 

The court then held an in camera hearing, at which Allen 

stated that he had discussed with defendant his reasons for 

wanting to plead guilty and to admit the special allegation of 

lying in wait. Allen stated that defendant was “correct in two 

fundamental points that are motivating his desire to enter this 

set of guilty pleas and admissions.” First, defendant believed 

that the evidence against him was very strong, and that it was
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highly likely that a judge or jury would find him guilty and 

find the special allegations to be true, but “[f]or reasons 

connected with his personal beliefs and outlook on life, he is 

not interested in plea bargaining with the District Attorney’s 

office.” Allen explained that defendant wanted the record to 

reflect that he had “not received any guarantees of any kind of 

consideration, leniency, or anything else in exchange for the 

plea. That the plea is what he wants to do to take 

responsibility for what he feels he did.” Second, defendant

believed that his acceptance of responsibility through his plea 

and admissions was his best strategy for avoiding a death 

sentence, and Allen agreed that this strategy, “even though it’s 

highly risky, is the best strategy available on the facts of his 

particular case.” Allen further explained, “obviously if that 

acceptance of responsibility is something less than completely 

free and unconditional it loses its moral strength as an 

argument . . . .” 

With respect to his ethical situation, Allen stated that if 

a client’s motive “makes no sense or is contrary to the client’s 

best interests, then you have an ethical obligation not to 

cooperate,” but here, given the strength of the evidence, Allen

thought a jury would be irritated that it had to “hear several 

weeks of, essentially, uncontestable evidence.” He stated that 

the evidence was “extremely strong,” and “the likelihood of a 

conviction is extremely high.” He also informed the court that 

he had tried about 65 murder cases, including 15 which 

potentially involved a death penalty, and had tried three 

capital penalty phases. He added, “I think I understand what 

I’m doing when I appraise the evidence in Mr. Miracle’s case. 

[¶] Mr. Miracle doesn’t have on the guilt phase a reasonable 

defense to any, except as I say, one minor allegation, which if it 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

19

were resolved in his favor wouldn’t change the capital charge 

or any of the allegations connected to it.” The trial court 

responded that the trial would not appear pointless if 

codefendant Ibarra pursued a jury trial. 

Allen then explained defendant’s intentions with respect 

to Ibarra: defendant felt that he dragged Ibarra into 

defendant’s plan, and that defendant had led them to killing 

the victim; Ibarra had no intent to kill the victim, but 

defendant pulled Ibarra too far for him to back out. Defendant 

wanted to describe to the prosecutor and Ibarra’s attorneys 

what defendant’s testimony would be at Ibarra’s trial, and 

wanted to testify at Ibarra’s trial. Defendant felt that his 

obligation to take responsibility for his actions included 

accepting responsibility for what he led Ibarra to do, and that 

pleading guilty without any consideration would cause his 

testimony to have more weight with the factfinder in Ibarra’s 

trial. Finally, Allen stated that he wanted defendant to testify 

in Ibarra’s trial prior to the penalty phase in defendant’s trial, 

and that he would “argue very strongly” in defendant’s penalty 

phase that defendant’s “willingness to tell the truth and help 

Mr. Ibarra” was also a point in favor of a sentence of life 

without the possibility of parole rather than a sentence of

death. 

The court then inquired whether the defense 

contemplated a jury trial at the penalty phase. Defendant said 

he did not, and explained that his only reason for pleading 

guilty was because he thought he was responsible, and he 

“want[ed] to do the right thing and take responsibility and 

offer exonerating testimony on behalf of Mr. Ibarra.” He added 

that he “just want[ed] to make clear that . . . using that as 

mitigating evidence at the penalty trial is not my motive for 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

20

pleading guilty.” The court sought to clarify that it was not 

defendant’s main motive, and that the fact of his plea would be 

used at the penalty phase. Defendant responded, “[t]ell you 

the truth, I’m not concerned about it at all.” Allen interjected 

that “[i]t would be fair to say that it is a very important factor 

for me in agreeing to go along with this proposal.” 

The court then attempted to clarify how the case would 

proceed. It stated that if it appointed Allen to represent 

defendant, and if Allen consented to defendant’s guilty pleas 

and admissions of special allegations, the court would not let 

defendant represent himself at the penalty phase. Defendant 

stated that he wanted to waive his right to a jury trial at the 

penalty phase, and not to offer any mitigating evidence at that 

phase. He added that “I just don’t believe in doing that, I 

believe the right thing for me to do is take responsibility.” The 

court pointed out to defendant that Allen had indicated that he 

intended to present mitigating evidence, including the fact of 

defendant’s admission. Defendant did not respond, but Allen 

explained that he had advised defendant that he was willing to 

help present an argument based on defendant’s acceptance of 

responsibility, and that there might be other evidence that 

could be presented, but that defendant “has a very strong 

desire to limit that.” 

The court then explained to defendant that if it allowed 

defendant to withdraw his decision to represent himself, and 

thereby allow Allen to concur in his decision to plead guilty, 

the court would not allow him to represent himself at the 

penalty phase, and counsel would present mitigating evidence 

that might exceed what defendant wanted presented. It stated 

it would continue the matter for two weeks to allow defendant 

and Allen to think about whether Allen should be appointed to 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

21

represent defendant. Defendant asserted that the court was 

interfering with his right to take responsibility for his actions. 

The court responded that it was bound by state law regarding 

the entry of a guilty plea. Defendant then asked the court to 

research the possibility of accepting defendant’s plea with the 

consent of advisory counsel. The court reiterated its view that 

defendant could plead guilty only with the consent of appointed 

counsel. The arraignment was continued for two weeks during 

which time Allen and defendant would review the rest of the 

evidence. 

At the next hearing, in late June, the court asked 

defendant if he wanted to proceed with the arraignment, and 

defendant asked if he could have Allen address the court. 

Allen reiterated defendant’s desire to plead guilty and to admit 

the special allegations, and argued, among other points, that

there was a conflict between section 1018, which prohibits a 

defendant from pleading guilty to a capital offense without the 

consent of counsel, and the right under the Sixth Amendment 

to represent oneself. After articulating his legal arguments, 

Allen stated that if defendant could not establish the right to 

enter a guilty plea while representing himself, his second 

choice would be to have Allen represent him. The court stated 

that it was troubled by the reference to a second choice or

preference, because the court had explained to defendant that 

he could not plead guilty if he represented himself, and had 

also explained that defendant could not go back and forth 

between representing himself and having legal representation. 

It indicated that it would probably grant a request to appoint 

Allen as his counsel, but would not then allow defendant to 

represent himself again if he did not like how Allen was 

representing him at either stage. The court then granted 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

22

Allen’s request to brief the court regarding defendant’s rights 

under Faretta. 

In mid-July, Allen filed a brief in which he argued that 

defendant had a right to plead guilty and admit the special 

circumstance allegations with the consent of his advisory 

counsel, “at least where the record shows that advisory counsel 

is fully informed of the facts and the law, and has the 

experience and training to function as appointed defense 

counsel on a capital case. . . . The concurrence of advisory 

counsel under such circumstances fulfills all the policy 

objectives and protects against miscarriages of justice, to 

exactly the same extent as if defendant were ‘represented’ by 

counsel.” Alternatively, he argued that the right of selfrepresentation recognized in Faretta takes precedence over the 

restrictions of section 1018. 

At the next hearing, a few days later, defendant 

confirmed that he still desired to plead guilty to the capital 

charge and all other charges except the charge of attempted 

murder. The court acknowledged defendant’s brief concerning 

his asserted right to plead guilty, and addressed the role of 

advisory counsel, stating that a court may expand the roles 

and responsibilities of an advisory counsel at the request of the 

defendant. It also stated that it was clear over the preceding 

several weeks that defendant had desired Allen to play a more 

active role, and Allen interjected that he was “happy to 

perform that expanded role at Mr. Miracle’s request.” The 

court then explained that during trial, Allen’s role would be 

limited in order to avoid conflicts concerning the presentation 

of the case, but these risks were not present during pretrial 

proceedings. Therefore, the court concluded, it could permit 

Allen to have a more active role prior to trial. 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

23

The court then turned to section 1018, noting that it

prohibits a guilty plea in a capital case without the consent of 

counsel. It stated that it wanted “to be very clear in terms of 

the role that Mr. Allen is assuming in terms of duties and 

responsibilities at this stage of the proceedings because I want 

to make sure that we comply with the spirit of Penal Code 

Section 1018.” It asked Allen whether he was willing, “at least 

up to this point in the proceedings, . . . to accept the duties and 

responsibilities of counsel for Mr. Miracle within the meaning 

of Penal Code section 1018?” Allen responded, “Absolutely,” 

and added that he had discharged those duties during his 

service as advisory counsel. Allen stated that “[w]e have 

explored all the facts relating to the capital charge and I’m 

satisfied that Mr. Miracle’s decision is a tactically intelligent 

one. It’s not only voluntary and intelligent on his part in that 

he understands what his legal alternatives are, but it’s an 

intelligent one in that I think it plays a proper role in an 

intelligent penalty phase strategy.” He explained that he was 

referring to the matters discussed in the in camera hearing

held in mid-June. 

The court asked counsel if he would characterize his 

representation of defendant up to that point “as being one of 

counsel and not advisory counsel in terms of the duties and the 

functions that you’ve performed for him, and the assistance 

that you’ve provided to him.” Allen responded that he had 

“spent the same time and diligence and explored the same 

information and issues to the same extent as if I had been 

appointed to represent him.” The court confirmed with Allen 

that his statement was “with particular reference to the spirit 

of Penal Code Section 1018.” The court also confirmed that 

Allen understood that his conduct to date would be examined, 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

24

for purposes of determining whether he provided effective 

assistance of counsel, in the same manner as if he were 

appointed counsel. Finally, defendant confirmed that he 

continued to desire to represent himself, stated that he 

accepted what the trial court described as Allen’s “greatly 

expanded role,” and added that he had encouraged Allen to 

take on the expanded role. 

The court then stated that “the label that I’m going to 

continue to use with respect to you, Mr. Allen, will be advisory 

counsel. But I don’t want there to be any ambiguity in the 

record, and I don’t think there is, in terms of the greatly 

expanded role that you’ve assumed in discharging 

responsibilities as the functional equivalent as of counsel for 

Mr. Miracle.” The court then continued the arraignment for 

two weeks to make certain that Allen and defendant had 

reviewed all of the discovery, and to give them additional time 

to think about the decision to enter pleas and admissions. 

Allen stated that he would review the plea form with 

defendant at the jail. 

Defendant entered his plea at a hearing in late July. 

Defendant was present, as was Allen, his advisory counsel. 

The court reiterated that at a prior hearing in mid-July, the 

court wanted to ensure that defendant and Allen had reviewed 

all of the District Attorney’s materials and all of the discovery. 

Allen confirmed that he had met with the prosecutor and was 

satisfied that he had received all of the discovery. In addition, 

defendant confirmed that he had reviewed all of the materials 

along with Allen. 

The court asked defendant if it was still his desire to 

enter a guilty plea to Count 1, the murder of Elias Silva, and to 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

25

admit all of the special allegations. Defendant stated that was 

still his desire. The court asked Allen if he was prepared to 

consent to the guilty plea and the admissions to the special 

allegations, and he responded, “Yes.” Allen also confirmed that 

he was doing so unequivocally, and that he had explained to 

defendant the consequences of pleading guilty and admitting 

the special allegations. The court asked defendant if he was 

proceeding without any equivocation, without any question in 

his mind that he wanted to enter a guilty plea to the capital 

charge, and he responded, “Yes.” Defendant also confirmed 

that he had thoroughly discussed this course with Allen. The 

court then stated that it was “going to accept the consent to the 

guilty pleas as is required by Penal Code section 1018.” 

As the prosecutor was about to review the felony plea 

form and waiver of rights form with defendant, the court 

stated, for the benefit of “anyone who is reading this 

transcript,” that at least part of Allen’s justification for 

consenting to the plea was articulated at the earlier in camera

hearing. After the prosecutor asked Allen to indicate on the 

waiver form that defendant was proceeding in propria persona 

and was represented by advisory counsel, the court interjected 

that “anyone reviewing last week’s transcript and proceeding 

would certainly understand that your role as advisory counsel 

at least through this proceeding today is really the role of 

counsel. We’re not relieving or withdrawing Mr. Miracle’s pro 

per status. He’s entitled to that and he retains it both now and 

in future proceedings. [¶] But your role as advisory counsel 

has been greatly expanded. In effect, you’re proceeding as 

counsel to Mr. Miracle. You’ve represented on the record . . . 

in the last couple proceedings and today that you’ve been 

treating your role as advisory counsel as if you were appointed 
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Opinion of the Court by Cantil-Sakauye, C. J.

26

counsel; is that correct?” Allen responded, “And by the same 

standards of behavior, exactly. That’s correct, your Honor.” 

The prosecutor then confirmed with defendant that “you’re 

represented by your advisory counsel Joe Allen.” 

In the course of reviewing his plea and waiver of rights, 

defendant confirmed that he was pleading guilty to the murder 

charge, and admitting two special circumstance allegations, 

murder committed by means of lying in wait and murder by an 

active participant in a criminal street gang to further the 

activities of a criminal street gang. (§ 190.2, subd. (a)(15), 

(22).) He also admitted enhancements for use of a deadly 

weapon (§ 12022, subd. (b)(1)) and commission of the murder 

while he was an active participant in a criminal street gang to 

further activities of the criminal street gang (§ 186.22, subd. 

(b)(1)). The court found that “the plea and admissions are 

knowing, intelligent, and made understandably and that they 

are free and voluntary.” At the late July hearing, defendant 

pleaded not guilty to count two, the attempted murder charge. 

On September 8, 2005, the court granted the prosecutor’s 

motion to amend the second count to allege assault with a 

deadly weapon (§ 245, subd. (a)(1)), a knife, rather than 

attempted murder. Defendant then changed his plea on the 

second count to guilty, and admitted the allegations that he 

personally used a knife and personally inflicted great bodily 

injury.

B. Validity of Defendant’s Guilty Plea

Defendant contends through counsel on appeal that his 

plea of guilty to the capital charge was precluded by section

1018, which provides in pertinent part: “No plea of guilty of a 

felony for which the maximum punishment is death, or life 
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Opinion of the Court by Cantil-Sakauye, C. J.

27

imprisonment without the possibility of parole, shall be 

received from a defendant who does not appear with counsel, 

nor shall that plea be received without the consent of the 

defendant’s counsel. . . . This section shall be liberally 

construed to effect these objects and to promote justice.” 

We have previously upheld section 1018’s prohibition on 

the entry of a guilty plea to a capital offense without the 

consent of counsel. (People v. Chadd (1981) 28 Cal.3d 739 

(Chadd).) In Chadd, the defendant wished to plead guilty, but 

his counsel would not consent, observing that defendant 

desired to commit suicide. The trial court ruled that if it found 

the defendant competent to act as his own attorney under 

Faretta, supra, 422 U.S. 806, it would accept his guilty plea 

without the consent of the defendant’s counsel of record. It 

thereafter found him competent, and allowed him to plead 

guilty to the charges and to admit the special circumstance 

allegations. 

On appeal, the Attorney General urged the court to 

construe section 1018 to allow a capital defendant to choose to 

represent himself and enter a guilty plea. We noted that this 

scenario was “entirely hypothetical: although he well knew of 

his right to do so, defendant never made an unequivocal 

request to discharge [his counsel] Mr. Pitkin and represent 

himself, and hence was never granted that status; on the 

contrary, with defendant’s agreement Mr. Pitkin continued to 

act as his counsel throughout the proceedings. [Citation.] We 

will not, of course, adjudicate hypothetical claims or render 

purely advisory opinions.” (Chadd, supra, 28 Cal.3d at p. 746.) 

Despite our observation, we articulated two additional reasons 

for rejecting the contention. First, section 1018 plainly stated 

“that no guilty plea to a capital offense shall be received 
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Opinion of the Court by Cantil-Sakauye, C. J.

28

‘without the consent of the defendant’s counsel.’ ” (Ibid.) 

Second, the proposed interpretation would render the statute’s 

third sentence, which allows noncapital defendants to waive 

counsel and plead guilty, redundant. (Id. at p. 747; see also 

§ 1018 [“No plea of guilty of a felony for which the maximum 

punishment is not death or life imprisonment without the 

possibility of parole shall be accepted from any defendant who 

does not appear with counsel unless” specified conditions are 

met], italics added.)

In the alternative, the Attorney General contended the 

statute was unconstitutional. He appeared to concede that the 

state could entirely bar guilty pleas in capital cases, but 

argued that the state could not impose the lesser restriction of 

requiring consent of counsel. More particularly, he asserted 

that a requirement of consent “disturbs the ‘uniquely personal’ 

nature of the defendant’s decision to plead guilty, denies him 

his ‘fundamental right’ to control the ultimate course of the 

prosecution, and destroys the constitutionally established 

relationship of counsel as the defendant’s ‘assistant’ rather 

than his master.” (Chadd, supra, 28 Cal.3d at p. 747.) We 

responded that this contention “fails to recognize the larger 

public interest at stake in pleas of guilty to capital offenses.” 

(Ibid.; see id. at pp. 747-754 [analyzing issue].)

We considered section 1018 again in People v. Alfaro

(2007) 41 Cal.4th 1277, in which counsel for the defendant 

declined to consent to her desire to enter an unconditional 

guilty plea. Like the defendant in Chadd, Alfaro did not 

invoke her right to self-representation. (Id. at p. 1298.) On 

appeal, she asserted that she sought to plead guilty to support 

her strategy at the penalty phase of demonstrating remorse, in 

contrast to the defendant in Chadd, supra, 28 Cal.3d 747, who 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

29

sought to commit suicide. We did not decide whether our 

reasoning in Chadd would apply to the asserted facts, because 

the record did not substantiate her claim. The record reflected 

that she sought to plead guilty because she feared for the 

safety of her family and herself if, through her defense, she 

implicated a particular person in the crime. Her counsel 

believed that the evidence she sought to avoid presenting 

“would mitigate her culpability for the murder.” (Id. at 

p. 1301.) Therefore, “defendant’s plea would have cast doubt 

on potentially critical mitigating evidence. A guilty plea 

entered under such circumstances might very well lead to the 

erroneous imposition of the death penalty — precisely the 

outcome section 1018 is intended to prevent.” (Ibid.) 

The facts in the present case are distinguishable from 

those in Chadd and Alfaro. Here, when defendant’s counsel 

would not consent to a guilty plea and defendant pursued selfrepresentation, his counsel proposed that the trial court 

appoint advisory counsel, authorize such counsel to participate 

in evaluating the appropriate plea, and require such counsel’s 

consent to a guilty plea. Following his appointment, 

defendant’s advisory counsel reviewed all of the discovery with 

defendant and concluded that pleading guilty was defendant’s

best strategy for avoiding the death penalty. Thereafter, the 

court clarified that advisory counsel’s duties and 

responsibilities encompassed the duties of counsel under 

section 1018. Advisory counsel confirmed that he had accepted 

and discharged those duties and responsibilities, repeated that 

he thought a guilty plea was an intelligent strategy, and 

further stated that he had performed in the same manner as if 

he had been appointed counsel. The trial court characterized 

the role advisory counsel had assumed as “the functional 
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Opinion of the Court by Cantil-Sakauye, C. J.

30

equivalent” of counsel. Finally, in accepting defendant’s guilty 

plea, the court reiterated and advisory counsel confirmed that 

he had been acting as he would if he had been appointed 

counsel. 

Defendant contends that his advisory counsel’s consent 

could not satisfy the requirements of section 1018 because 

there is a clear line between representation by counsel and 

self-representation. He is correct that a defendant may not 

both represent himself and be represented by counsel. (People 

v. Bloom (1989) 48 Cal.3d 1194, 1218-1219 [rejecting claim 

that a motion to proceed in propria persona sought only 

cocounsel status].) However, “trial courts retain the discretion 

to permit the sharing of responsibilities between a defendant 

and a defense attorney when the interests of justice support 

such an arrangement.” (People v. Moore (2011) 51 Cal.4th 

1104, 1120.) Although a self-represented defendant is 

responsible for his defense, “the court is not foreclosed from 

permitting a greater role for counsel assisting a Faretta

defendant, so long as defendant’s right to present his case in 

his own way is not compromised.” (People v. Hamilton (1989) 

48 Cal.3d 1142, 1164, fn. 14.) 

We have recognized several forms of hybrid 

representation, including “advisory counsel, in which the 

attorney actively assists the defendant in preparing the 

defense case by performing tasks and providing advice

pursuant to the defendant’s requests, but does not participate 

on behalf of the defense in court proceedings.” (People v. 

Moore, supra, 51 Cal.4th. at p. 1119, fn. 7.) When a trial court 

assigns responsibilities to advisory counsel, “the defendant is 

entitled to expect professionally competent assistance within 

the narrow scope of advisory counsel’s proper role.” (People v. 
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Opinion of the Court by Cantil-Sakauye, C. J.

31

Lawley (2002) 27 Cal.4th 102, 145; see People v. Hamilton,

supra, 48 Cal.3d at pp. 1164-1165, fn. 14 [a self-represented 

defendant may raise ineffective assistance claims that “arise 

directly from assisting counsel’s breach of the limited authority 

and responsibilities counsel has assumed”]; see also McKaskle 

v. Wiggins (1984) 465 U.S. 168, 182 [“Even when he insists 

that he is not waiving his Faretta rights, a pro se defendant’s 

solicitation of or acquiescence in certain types of participation 

by counsel substantially undermines later protestations that 

counsel interfered unacceptably”].) These principles reflect 

that when an attorney is assigned responsibilities as advisory 

counsel, he or she performs as the defendant’s counsel for those 

purposes. 

Defendant contends that the language of section 1018 is 

clear, unambiguous, and not reasonably susceptible to a 

construction that allows advisory counsel to satisfy the 

statutory requirements imposed on counsel. We disagree. The 

operative portion of section 1018 provides that a capital 

defendant who seeks to plead guilty must “appear with 

counsel” and have “the consent of the defendant’s counsel.” As 

discussed above, advisory “counsel” may be appointed to 

handle responsibilities associated with the defense of a case 

and is expected to perform the assigned responsibilities in a 

professionally competent manner. On its face, the operative 

portion of section 1018 does not foreclose an interpretation of 

“counsel” that encompasses advisory counsel who has been 

assigned to fulfill the responsibilities of counsel under section 

1018.

The dissent observes that the phrase “ ‘right to counsel’ ” 

as used elsewhere in section 1018 must “mean[] the right ‘to be 

represented by counsel’ ” because the constitutional “ ‘right to 
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Opinion of the Court by Cantil-Sakauye, C. J.

32

counsel’ ” sweeps only that far. (Dis. opn. of Liu, J., post, at 

p. 2, quoting § 1018; id. at p. 3). True enough. But it does not 

follow that the meaning of the word “counsel” is equally 

circumscribed. The constitutional “right to counsel” may 

contemplate only a particular kind of counsel, but as a 

linguistic matter, the word “counsel” (standing alone or in 

other contexts) may carry a more expansive meaning. (See, 

e.g., McKaskle v. Wiggins (1984) 465 U.S. 168, 181-183 [using 

“counsel” as a shorthand for “standby counsel”].) So the 

phrase “appear with counsel,” as used throughout section 1018, 

is susceptible to a broader interpretation than the dissent 

suggests –– even if the phrase “right to counsel” does not 

encompass advisory counsel.

Moreover, “a statute must be construed, if reasonably 

possible, in a manner that avoids a serious constitutional 

question.” (People v. Engram (2010) 50 Cal.4th 1131, 1161.) 

We are presented in this case with a defendant who invoked 

his right to represent himself and whose best strategy to avoid 

the death penalty was arguably a guilty plea. As we discussed 

in Chadd, supra, 28 Cal.3d 739, 751, the high court in Faretta,

supra, 422 U.S. 806, recognized the right of a pro se defendant 

to make a defense. Interpreting the operative portion of 

section 1018 to bar defendant from pleading guilty would raise 

a serious question about whether section 1018 is compatible 

with defendant’s constitutional rights under Faretta. By 

contrast, if “counsel” is construed to include advisory counsel, 

then section 1018 did not forbid defendant’s plea, and we need 

not resolve whether it could have done so constitutionally.

Assigning the responsibilities of counsel under section 

1018 to advisory counsel in the case of a defendant who has 

exercised the right to self-representation is not inconsistent 
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Opinion of the Court by Cantil-Sakauye, C. J.

33

with the purposes of section 1018. “ ‘[S]ection 1018 is obviously 

designed to protect defendants by assuring that such a serious 

step is a fully informed and competent one, taken only after 

consideration with and advice by counsel.’ ” (Chadd, supra, 

28 Cal.3d at p. 749.) In addition, the amendment that added 

the requirement that counsel consent did so to provide “a 

further independent safeguard against erroneous imposition of 

a death sentence.” (Id. at p. 750.) By evaluating a case and 

advising the defendant with respect to his or her desire to 

plead guilty, advisory counsel safeguards against an illconsidered entry of a guilty plea. Therefore, we conclude that 

the term “counsel” in the operative portion of section 1018 is 

susceptible of a construction that includes advisory counsel —

and adopt that construction.

2

 

2 As noted, the word “counsel” appears in portions of 

section 1018 not applicable here. Although we ordinarily 

construe terms to have the same meaning throughout a 

statute, there is no categorical requirement that “ ‘identical 

words used in different parts of the same act’ ” must have the 

same meaning. (General Dynamics Land Systems, Inc. v. Cline

(2004) 540 U.S. 581, 595; see also People v. Hernandez (1981) 

30 Cal.3d 462, 468.) Accordingly, we express no opinion 

concerning whether other portions of section 1018 can or 

should be construed similarly — let alone how the term 

“counsel” should be construed in other contexts. (Cf. People v. 

Lightsey (2012) 54 Cal.4th 668, 692-699 [holding that statute 

requiring representation by counsel during competency 

proceedings did not violate defendant’s right to selfrepresentation and concluding, without identifying any serious 

constitutional question to be avoided, that the statutory 

requirement was not satisfied by appointment of advisory 

counsel].) 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

34

This case well-illustrates that accepting the consent of 

advisory counsel is compatible with the interests served by 

section 1018. The court appointed Allen to be defendant’s 

advisory counsel and assigned him the responsibility to 

evaluate whether defendant should be allowed to plead guilty 

to the murder charge and to admit the special circumstance 

allegations. Allen, whom the court described as “a very 

experienced criminal defense lawyer” and “[m]aybe the most 

experienced that we have in Santa Barbara County,” advocated 

on behalf of defendant with respect to his access to discovery 

materials and the assistance of an investigator. He reviewed 

all of the discovery with defendant and evaluated the strength 

of the evidence. He presented his views and defendant’s views 

to the court, and the court explored those reasons with 

advisory counsel and defendant. After months of discussions, 

when the trial court finally allowed defendant to plead guilty 

and admit the special circumstance allegations, it confirmed 

with advisory counsel that he had performed as he would if he 

had been appointed as counsel. This process assured that 

defendant’s plea was fully informed by advisory counsel’s 

evaluation of the case, and the process served as a safeguard 

against an erroneous judgment. That defendant conducted the 

penalty phase differently than counsel may have (see dis. opn. 

of Liu, J., post, at pp. 5, 13) casts no doubt on the reliability of 

defendant’s conviction nor on the truth of the special 

circumstance allegations that made him eligible for the death 

penalty. And section 1018 does not require that the attorney 

who consents to a plea may do so only if he or she retains 

control over the balance of the proceedings; nothing in section 

1018 prohibits a capital defendant who has pleaded guilty from 
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Opinion of the Court by Cantil-Sakauye, C. J.

35

substituting counsel or electing self-representation at the 

penalty phase.3

III. PENALTY TRIAL

Defendant contends that the restraints placed on him 

during the penalty trial and the denial of any writing 

instrument violated his right to participate in his own defense, 

and his rights to due process, a fair trial, and a reliable 

sentencing determination under the Fifth, Sixth, Eighth, and 

Fourteenth Amendments and the correlative state 

constitutional provisions.

A. Proceedings Concerning Defendant’s Restraints

Prior to jury selection, county counsel filed on behalf of 

the Santa Barbara County Sheriff’s Department a motion for 

an order that defendant be physically restrained during the 

trial “by having both of his hands handcuffed within a lockbox, 

and to a waist chain, and having both of his legs attached to 

leg shackles.” The sheriff’s department also planned to have 

additional officers in the courtroom. 

 

3 Our conclusion also resolves defendant’s contention that 

the failure to prohibit him from entering a guilty plea deprived 

him of his right under the Eighth Amendment to a reliable, 

nonarbitrary sentencing determination, and his due process 

liberty interest under the Fourteenth Amendment to the 

enforcement of state statutory rights. As explained above, the 

process followed by the trial court afforded defendant the 

assistance and advice of counsel contemplated by section 1018 

in connection with his desire to plead guilty, fulfilling the 

Legislature’s purpose of ensuring adequate assistance and 

avoiding arbitrary results.
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

36

The motion was supported by declarations of three 

corrections officers of the Santa Barbara County Sheriff’s 

Department, and copies of inmate discipline reports. Wendy 

Shannon’s declaration stated that in mid-October 2004, after 

defendant was searched and handcuffed in preparation for 

transport to court, he slipped one of his hands out of the 

handcuffs, held down another inmate, and repeatedly punched

him. Douglas Todaro’s declaration stated that in late April 

2005, defendant had to be extracted from his cell.4 “In order to 

subdue Inmate Miracle, the extraction team had to use 

chemical spray, a pepperball gun, and two shots from a 50,000-

volt TASER. Later that day, . . . [defendant] told [the 

declarant], ‘I will keep fighting you, until I kill you or until you 

kill me.’ [¶] Because of Inmate Miracle’s history of being 

aggressive with Corrections Officers, he is housed in a single 

person cell and is required to be moved by two Corrections 

Officers, and a Corrections Sergeant armed with a TASER, any 

time he is removed from his cell.” (Emphasis in original.) 

Trevor Carpenter’s declaration stated that in mid-May 2005, 

after defendant had refused to comply with Carpenter’s orders, 

defendant stated, “ ‘I’m glad that it’s you that fucked with me, 

cause I always wanted to slice you up.’ ” The next day, 

 

4 A recording of the April extraction was played at the 

hearing on the motion. Sergeant Tim Morgan, the supervisor 

of the special operations team that extracted defendant from 

his cell, testified that once the team moved defendant to 

another cell, defendant “repetitively asked who we were, that 

he was going to get us back, that he was going to, I want to say 

use a knife to get us, and I don’t remember the exact wording 

of slashing, or something of that nature.”
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

37

Carpenter moved defendant from his cell to a shower. As 

Carpenter removed defendant’s handcuffs, defendant pulled a 

razor blade from the waistband of his pants, “then turned on 

us and slashed out with the razor blade.” With the assistance 

of other corrections officers, Carpenter pushed defendant into 

the shower room. A team was assembled to extract defendant 

from the shower room, but defendant “complied with their 

instructions, and turned over a razor and two razor blades that 

had been broken out of razor handles and wrapped in tape.” 

At the hearing on the motion, Allen stated that county 

counsel had indicated that defendant could have his writing

hand free, but Allen was concerned that defendant could not 

hold paper steady while writing unless his other hand was 

free, and that having a hand shackled to his stomach for long 

hearings would be very uncomfortable. Allen also stated that 

defendant had been polite and well behaved in the courtroom. 

The court directed defendant to raise his arms, and observed 

that defendant would not be able to write with the lockbox on 

him. It then asked county counsel whether he was concerned 

about defendant having a sharp object for writing, and county 

counsel indicated that the risk could be mitigated with a short 

pencil. Before taking a break to allow defendant to read the 

motion, the court commented that based on what it had read, it 

was not inclined to allow defendant to have either hand free. 

Instead, short breaks could be taken when defendant wanted 

to communicate with Allen. Thereafter, county counsel stated 

that if the court concluded that defendant needed to have a 

hand free for writing, the sheriff’s department believed 

defendant could be adequately restrained with his nonwriting 

hand handcuffed to a waist belt and his legs shackled, with the 

presence of additional deputies near him. 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

38

Following these discussions and after a video recording of 

the April cell extraction was played for the trial court, county 

counsel urged that there was a manifest need for defendant to 

be shackled and for one hand to be cuffed and attached to a 

waist belt. He added that the sheriff’s department did not 

think these restraints could be concealed from the jury, given 

the position of the jury box in relation to defendant’s chair, and 

the fact that defendant intended to wear his jail uniform. 

Allen noted that although the recorded cell extraction was 

“fairly violent,” the court should keep in mind that the incident

had occurred in April, defendant had behaved like a 

“gentleman” in court, and it had been the officers, not 

defendant, who used force in the recorded incident. 

The court observed that there must be a manifest need

for shackling, and noted the concern about the visibility of 

shackles during the penalty phase. It stated that “by his own 

choice and decision, he’s going to be wearing jail clothing. So 

the jury is obviously going to know that he’s in shackles.” It 

explained to defendant, “You’ve attacked fellow inmates, you’ve 

attacked corrections officers, you’ve threatened to kill 

correction officers, you’ve actually either created, 

manufactured or found a razor blade and attempted to slash 

officers with a razor blade. So there is just no question 

whatsoever in my mind that there is an exceedingly compelling 

manifest need and special need for shackling in this case. 

There’s just absolutely no question about it.” It added that it 

was “quite concerned about putting any sort of an instrument 

in your hand that can be used in any form or fashion as a 

weapon, and at this point in the proceedings I’m not going to 

permit it.” It further noted that the courtroom was small; it 

estimated that defendant was about eight feet from the court 
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Opinion of the Court by Cantil-Sakauye, C. J.

39

reporter and about ten feet from the clerk. It ordered that 

defendant be shackled as proposed in county counsel’s motion, 

and stated that perhaps the issue could be revisited during the 

trial. With respect to defendant’s need to communicate with 

his advisory counsel, the court stated that he could whisper to 

him or more frequent breaks could be taken. 

Allen informed the court that the lockbox was 

“particularly uncomfortable for long periods of time,” and 

asked that defendant instead be placed in handcuffs “threaded 

through the waist chain.” County counsel responded that the 

lockbox would prevent defendant from escaping from his 

handcuffs. The court concluded that in light of the incident in 

which defendant escaped from his handcuffs and battered a 

fellow inmate, he should be in a lockbox while in the 

courtroom, and that if it was uncomfortable, breaks could be 

taken. 

Allen then informed the court that defendant suggested 

the alternative of an electric belt. County counsel observed

that the use of such belts was criticized in People v. Mar (2002) 

28 Cal.4th 1201, and the sheriff’s department had chosen not 

to obtain such belts. Allen responded that he thought a belt 

could be borrowed from Los Angeles County, and that this case 

differed from People v. Mar because defendant was requesting

a belt as a preferred alternative. In response to an inquiry 

from the court, Allen confirmed that he thought the court 

should allow defendant’s hands to be free if he wore an electric

belt. The court responded that it was concerned for Allen’s 

safety because he was in close proximity to defendant, so it 

would not permit defendant to have his hands free to write. 

Allen then asked the court to consider the approach taken in a 

prior case in which the defendant’s hands were free, but the leg 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

40

chain was fastened to the underpinnings of the table so that 

the defendant could not get up without taking the table with 

him. The court stated that if defendant wanted to make a 

written motion to change the restraints, the motion should 

focus on why oral communication between Allen and defendant 

was not effective. The discussion concluded with Allen stating 

for the record that he trusted defendant “absolutely not to hurt 

me. He knows I’m on his side, he knows I’m not going to 

betray him or do something evil to him. And I feel likewise 

about him.” 

At a subsequent pretrial hearing, Allen voiced his 

concern that defendant would be unable to take notes, and 

suggested adjustments in the shackles that might allow him to 

write. Following discussions, the court suggested that the 

defense investigator sit by defendant and write down whatever 

comments he made to her. Allen stated that the investigator 

would be happy to do that. The court stated that it would not 

allow defendant to have a pen or pencil, but it would take steps 

to insure defendant could have notes taken, including taking 

more frequent breaks. Allen then expressed concern that the 

shackling configuration caused defendant muscle cramps, and 

defendant added that “[t]his is a very stiff position for me to be 

in for any length of time.” County counsel suggested that the 

lockbox could be removed during breaks, and the court 

suggested that the way the lockbox was affixed could be varied 

over the course of a day. Defendant suggested fastening an eye 

bolt to the table and running his chain through it, which would 

allow him a greater range of motion. He stated that the

lockbox forced him to lean forward, and that his body, 

especially his neck, was stiff after one or two hours. Defendant 

confirmed that it helped to stand, and the court once again 
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Opinion of the Court by Cantil-Sakauye, C. J.

41

proposed that they take more frequent breaks. The court 

added that based on its observations of defendant over a 

number of days, it did not appear to the court that his 

discomfort rose to the level of a violation of his legal rights. 

With respect to defendant’s proposal to be bolted to the 

table, county counsel opined that the one-inch piece of wood 

would not hold defendant. The court added that it was 

concerned about what the jury would see if defendant were 

chained to the table. “You’ve chosen here to be in jail clothing, 

so they’re going to know you’re in custody, and they’re going to 

know that you’ve been convicted of first degree murder with 

special circumstances. To have handcuffs on your hands, and 

that’s really all that appears to look like to me, to have 

handcuffs on your hands and a chain around your legs I don’t 

think causes the sort of prejudice in the eyes of the jury that 

chaining you to a table might do.” In the court’s view, chaining 

him to the table would be like chaining a rabid dog to a fence. 

The court also observed that defendant could raise both hands

together, move his feet back together, and separate his knees. 

A week later, Allen asked to have the lockbox removed 

when defendant was in his cell during court breaks, because 

the box caused muscle cramps. The court stated that removal 

of the box was not necessary “in terms of the representation of 

himself,” and left it to the sheriff’s department to decide if the 

box could be moved without security concerns. The bailiff 

stated that they did not always have a key available, and a 

deputy stated that three bailiffs were required to unlock him 

and lock him again, which would hold up the proceedings. The 

court then stated, “I think that’s your answer.” 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

42

Two days later, defendant threatened corrections officers 

and acted violently when he was being moved from the holding 

cell to the courtroom, and he was returned to jail rather than 

brought to court. Voir dire was cancelled for the day. The next 

day, the court warned defendant that it was considering 

revoking his in propria persona status. Allen stated that 

defendant wanted to know if he could choose not to be present 

at some points in order to avoid being in restraints. The court 

expressed concern with his desire to avoid court, given that he 

was representing himself. The defense investigator stated that 

she had bought thermal shirts with thick wristbands to 

alleviate the pain, but defendant was not allowed to wear 

them. She had also obtained thicker socks and shoes that 

would be more comfortable. The court directed that defendant 

wear the shirt and wristbands to the next court session, unless 

county counsel wanted to explain to the court how these 

articles would impact security, and stated that it would 

address the issue of shoes later. 

The following week, a deputy described to the court 

defendant’s earlier misconduct in the courthouse holding cell, 

and stated that defendant’s grievance that day had been

related to discomfort from the shackles, which he claimed were 

too tight. County counsel informed the court that the proposed 

padding on defendant’s wrists, with long sleeves or wristbands, 

would substantially increase the risk of escape from the 

lockbox. He further reported that defendant was restrained 

with a new system that day, employing hand restraints at each 

side of the waist chain and another set of handcuffs attached at 

the front of the waist chain. He also had ankle cuffs attached 

by chain. If this setup was to be used rather than the more 

secure lockbox, counsel explained, an additional deputy would 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

43

be present. At the court’s request, defendant demonstrated his 

range of motion, and the court expressed concern “about any 

system of restraints that allows any possibility of violence 

occurring in this courtroom.” County counsel responded that 

the new configuration “would provide adequate, although less 

security than the lockbox,” and suggested that the court accept 

the new configuration, but further provide that “if there’s any 

further nonconforming behavior” by defendant, the lockbox 

would be used. The court agreed with this proposal, and also 

allowed defendant to wear thicker socks. 

In sum, defendant was shackled with a lockbox through 

all but one day of jury selection, and was shackled with triple 

handcuffs, a waist chain, and leg chains for the rest of the 

proceedings. The shackles were visible to the jury. The court 

instructed the jury that “[t]he fact that physical restraints 

have been placed on defendant . . . must not be considered by 

you for any purpose. You must not speculate as to why 

restraints have been used in determining the issues in this 

case. Disregard this matter entirely.”

B. Analysis of the Propriety of Defendant’s 

Restraints

“In general, the ‘court has broad power to maintain 

courtroom security and orderly proceedings’ [citation], and its 

decisions on these matters are reviewed for abuse of discretion. 

[Citation.] However, the court’s discretion to impose physical 

restraints is constrained by constitutional principles.” (People 

v. Lomax (2010) 49 Cal.4th 530, 558-559.) The federal 

“Constitution forbids the use of visible shackles during the 

penalty phase, as it forbids their use during the guilt phase, 

unless that use is ‘justified by an essential state interest’ —

such as the interest in courtroom security — specific to the 
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Opinion of the Court by Cantil-Sakauye, C. J.

44

defendant on trial.” (Deck v. Missouri (2005) 544 U.S. 622, 

624.) Similarly, “[u]nder California law, ‘a defendant cannot 

be subjected to physical restraints of any kind in the courtroom 

while in the jury’s presence, unless there is a showing of a 

manifest need for such restraints.’ ” (People v. Lomax, supra, 

49 Cal.4th at p. 559.) 

“ ‘[W]e will not overturn a trial court’s decision to 

restrain a defendant absent “a showing of a manifest abuse of 

discretion.” ’ [Citation.] To establish an abuse of discretion, 

defendants must demonstrate that the trial court’s decision 

was so erroneous that it ‘falls outside the bounds of reason.’ 

[Citations.] A merely debatable ruling cannot be deemed an 

abuse of discretion. [Citations.] An abuse of discretion will be 

‘established by “a showing the trial court exercised its 

discretion in an arbitrary, capricious, or patently absurd 

manner that resulted in a manifest miscarriage of justice.” ’ ” 

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 

390.)

Defendant does not establish that the trial court abused 

its discretion in finding a manifest need for the physical 

restraints based on security concerns particular to defendant. 

When the trial court made its initial ruling, it had before it 

evidence of four violent incidents while defendant was in 

custody. In October 2004, defendant had slipped out of one 

handcuff and attacked another prisoner. In April 2005, in 

separate incidents, he had to be extracted from his cell, and he 

attempted to attack another inmate. In May 2005, defendant 

stated that he wanted to slice a corrections officer, and the 

next day, he slashed at officers with a razor blade. Because of 

his aggressive behavior in jail, he was accompanied by two 

corrections officers and a sergeant with a Taser whenever he 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

45

was moved. The fact that these incidents occurred outside of 

the courtroom does not diminish their relevance or their

support for the trial court’s order. (People v. Hawkins (1995) 

10 Cal.4th 920, 944 [evidence need not show disruption in 

courtroom proceedings or attempt to escape; when there were 

“multiple instances of violent and nonconforming behavior 

while in jail, as well as an extensive background of criminal 

and violent activity, we will generally not second-guess the 

trial court’s decision”].) Finally, the trial court was aware that 

the shackles would be visible, and acknowledged this fact when 

it made its ruling.

5

 (See Deck v. Missouri, supra, 544 U.S. 622, 

629 [use of physical restraints “visible to the jury” must be 

justified].) 

Defendant contends the restraints were excessive. He 

cites county counsel’s statement that “we believe that with the 

combination of legs shackled together and Mr. Miracle’s nonwriting hand restraining to a waist belt, his writing hand could 

be free so long as there were additional deputies nearby.” The 

court inquired whether county counsel had any concern with 

respect to the fact that defendant would have a sharp object. 

Counsel responded, “We do have that concern, . . . and believe 

that we can mitigate that by providing him with, essentially, a 

golf pencil, a short object that wouldn’t be as effective as a 

stabbing weapon.” The trial court responded that it was “not 

 

5 The trial court observed when it made its ruling that 

defendant’s choice to wear prison clothes made it impossible to 

hide the shackles. With respect to his choice of clothing, 

defendant asserts only that the fact he “chose to appear in his 

prison clothes did not diminish the prejudicial effect of his 

shackles.”
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

46

inclined to allow Mr. Miracle to have any hand free based on 

what I’ve read.” When the possibility of giving defendant a golf 

pencil was raised again a few weeks later, the court stated that 

golf pencils “may be short, but I think they can be gripped 

enough to cause fairly significant damage or injury.” 

The trial court has broad discretion to evaluate the 

evidence and determine the appropriate security measures in 

the courtroom. (People v. Stevens (2009) 47 Cal.4th 625, 642.) 

The fact that the sheriff or county counsel believed that the 

risk of freeing one hand and giving defendant a writing 

instrument could be adequately mitigated by providing 

additional deputies and giving defendant a short pencil does 

not establish that the trial court abused its discretion in 

deciding that defendant’s hands should be restrained and he 

should not have any sharp object in his hand. 

Defendant also contends that restraining his hands and 

wrists interfered with his ability to participate in his defense. 

First, he cites a statement by Allen that it was very difficult for 

defendant to handle and read papers in his holding cell with 

the lockbox on. The discussion that followed, however, focused 

solely on whether defendant could write. The trial court 

examined the restraint, and noted that defendant’s hands and 

fingers were free, but agreed that he could not write with the 

lockbox on. Thereafter, the court suggested that the defense 

investigator could sit by defendant and transcribe his 

comments, and Allen stated that the investigator would be 

happy to do so. The record does not establish that defendant

could not review documents or dictate notes while the lockbox 

was on his wrists. In addition, at the hearing when the court 

decided to allow the use of three handcuffs instead of the 

lockbox, the trial court asked defendant to take his hands 
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Opinion of the Court by Cantil-Sakauye, C. J.

47

apart and move them up and down to demonstrate the 

additional range of motion. Following this demonstration, 

county counsel observed that defendant could raise the waist 

chain “some inches” and had “some arc with each hand.” 

Second, defendant asserts that he “had reason to believe 

his privileged, oral communications with Mr. Allen or [the 

defense investigator] would be overheard.” In support, he cites 

the trial court’s description of the courtroom as being small, 

with defendant seated “in very close proximity” to court 

personnel. The court’s comments, which noted that the bailiffs 

were “close by,” the court reporter was “probably eight feet 

away from you,” and the clerk was “probably ten feet away 

from you,” were made in the course of explaining why it would 

be dangerous to give defendant a pencil. There is no evidence 

that others would overhear if defendant whispered to the 

defense investigator or spoke to Allen and the investigator 

during breaks. 

Third, defendant focuses on the physical discomfort he 

experienced as a result of the shackles. The discomfort was 

apparently due in part to the fact that the sheriff’s department 

did not remove the lockbox while defendant was in a holding 

cell. In general, security arrangements in the custodial setting 

are determined by the officials who run the institution, not the 

court. (See People v. Roberts (1992) 2 Cal.4th 271, 307.) Here, 

however, the use of the lockbox in the holding cell arguably 

may be attributed to the trial court’s order, because the 

sheriff’s department apparently would not have used a lockbox 

absent the trial court’s order; the lockbox remained on due to 

the procedures required to remove it, not necessarily due to 

security concerns in the jail. 
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Opinion of the Court by Cantil-Sakauye, C. J.

48

Given the evidence presented to the trial court

concerning defendant’s violent behavior, the trial court’s 

decision to continue the use of the lockbox, despite the fact it 

would remain on defendant while he was in the holding cell,

was not an abuse of discretion. The trial court articulated its 

concrete concerns regarding the risk of allowing defendant to 

have a free hand. In addition, it noted that “just based on my 

observations in court and having watched you over a number of 

days it doesn’t appear to be that it’s the type of discomfort or 

pain that rises to the level of a violation of due process or a 

violation of your legal rights.” Finally, use of the lockbox was 

discontinued as of the last day of jury selection, and defendant 

did not thereafter complain of pain. He asserts it would have 

been futile to complain about the new configuration of 

shackles, but the record reflects that the court was open to 

considering adjustments to the security measures.

Even if any aspect of the security arrangements had been

excessive, defendant fails to establish prejudice under any 

standard.

6

 Prejudice may be shown if shackles impaired or 

 

6

“[W]here a court, without adequate justification, orders 

the defendant to wear shackles that will be seen by the jury, 

the defendant need not demonstrate actual prejudice to make 

out a due process violation. The State must prove ‘beyond a 

reasonable doubt that the [shackling] error complained of did 

not contribute to the verdict obtained.’ Chapman v. California,

386 U.S. 18.” (Deck v. Missouri, supra, 544 U.S. at p. 635.) 

The Attorney General observes that we have never held that 

excessive shackling alone establishes prejudice, and he 

contends that where there is adequate justification for 

restraints, and the claim is that the restraints are excessive, 

the Chapman standard does not apply. Instead, the Attorney 

General urges us to apply the Watson standard — whether “it 
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Opinion of the Court by Cantil-Sakauye, C. J.

49

prejudiced a defendant’s right to participate in the trial. 

(People v. Anderson (2001) 25 Cal.4th 543, 596 (Anderson).) As 

we have noted, defendant wore the lockbox only until the last 

day of jury selection. Five days before jury selection began, he 

informed the court that “I still have no intention of taking an 

active role in the selection of the jury.” The court observed 

that there might be times when Allen offered his opinion to 

defendant that some question should be asked of a prospective 

juror, and stated that “anytime you want a moment so that the 

two of you can talk I’ll give you that moment,” but in response 

to a question from the prosecutor, the court confirmed that it 

was not likely that the court would allow both Allen and 

defendant to engage in voir dire. As noted above, once use of 

the lockbox was discontinued, the shackles did not appear to 

cause pain or interfere with defendant’s participation. 

With respect to the fact the shackles suggested to the 

jury that defendant was a dangerous person, we note that the 

jury was presented with extensive and dramatic evidence of 

defendant’s violent conduct while incarcerated. Testimony was 

presented concerning three violent incidents that occurred in 

the seven months before jury selection was completed. In 

addition, the parties stipulated to a summary description of 27 

other incidents of violence or threats. This evidence of his 

violent tendencies, which is summarized below, was far 

 

is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the 

error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, it is 

clear beyond a reasonable doubt that no aspect of the shackling 

affected the judgment. Therefore, we need not resolve this 

contention.
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Opinion of the Court by Cantil-Sakauye, C. J.

50

stronger than any inference the jury might have drawn from 

the shackles regarding his dangerous character.

The most recent episode occurred in late November 2005, 

in the holding facility at the courthouse during the jury 

selection phase. Jesse Ybarra, a senior deputy with the Santa 

Barbara County Sheriff’s Department, testified that defendant 

was in an individual holding cell for his safety and the safety of 

others. When the officers were ready to transport him, they 

put shackles on him. When defendant complained that the 

shackles were too tight, Ybarra had an officer re-check them. 

That officer thought the shackles were on properly, and that

“Mr. Miracle was just playing a game to get the shackles real 

loose.” As the officers completed putting the shackles on 

defendant, defendant began swearing and threatening to hurt 

the officers. The officers then escorted him down the hallway 

to be taken to court. Ybarra testified that “we had a minimum 

of three people moving Mr. Miracle at one time, if not four, just 

due to safety and precautions . . . .” Defendant continued to 

yell loudly, use profanity, and make threats, and he was 

returned to his cell rather than taken to court.7 

Four days earlier, defendant’s misconduct led to a violent 

cell extraction. Defendant had put up a sheet that prevented 

 

7 On cross-examination, Ybarra confirmed that on the day 

of the incident defendant was complaining that he was in pain 

from the shackles. Ybarra further confirmed that adjustments 

had subsequently been made to address the issue, with the 

result that “everybody [was] getting along a little better . . . .” 

The problem on that particular day apparently had been that 

the waist chain was too tight, rather than that the lockbox was 

placed on defendant incorrectly. 
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51

officers from seeing him. Jeffrey Bradshaw, a corrections 

officer, testified that when he opened the outer door, he “felt a 

gush of liquid all over my body and Mr. Miracle said, ‘Get the 

fuck out of my cell.’ ” David Panel, a senior corrections officer 

at the jail, testified that defendant refused to come out of his 

cell peacefully, and “had actually prepared himself for battle. 

He had put a sheet around his property box lid . . . to block 

anything that may be coming his way. He used plastic . . . that 

he got from a sandwich bag or something, [to make] goggles 

. . . .” In addition, he tied the door shut with blankets and 

sheets. Defendant told staff that they were not allowed to go 

into his “private” cell. When defendant refused to lie down, 

Officer Panel fired numerous pepper balls at defendant’s legs, 

and then at defendant’s shoulders when defendant pulled up a 

mattress to protect his body. Panel continued to fire pepper 

balls as four officers entered the cell to try to restrain 

defendant. Defendant continued to fight, and Officer Panel 

entered the cell with a Taser. Using the drive stun, he stunned 

defendant for five seconds, and was able to get defendant’s 

right arm behind his back. He stunned defendant for two more 

seconds and got his other hand behind his back and cuffed him. 

The most dramatic evidence of defendant’s violent 

conduct was related to the cell extraction that occurred in April

2005.8 The jury was shown the recording of the incident, 

 

8 At one point in the proceedings, the prosecutor referred 

to the cell extraction video as being of an event in May, and the 

briefing refers to a video of an extraction in May, but the 

recorded extraction took place in April 2005.
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52

which had earlier been shown to the trial court in support of 

the motion for restraints. The recording reflected a very 

violent confrontation with six officers. As the recording was 

played, Officer Panel explained that defendant had put items 

on the window to his cell, obscuring the officers’ view. 

Approximately eight hours after negotiations were initiated 

with defendant, Panel administered a chemical agent through 

the slot in the cell. The chemical agent makes skin feel hot 

and attacks the mucous membranes of the mouth and nose. 

Defendant used a box lid to keep Panel from putting more of 

the chemical through the slot. In response, an officer used a 

baton to keep the slot from being blocked. The officers waited 

to allow the chemical to have some effect, and then opened the 

cell door. Defendant rushed out and attempted to strike 

officers, one of whom used a Taser against him. Handcuffs 

were placed on his wrists, and a hobble was placed on his legs 

so he could not kick or pull his feet apart. 

Finally, an investigator with the district attorney’s office 

read a stipulated list of 27 incidents in which defendant acted 

in a violent or threatening manner,9 and then read more 

 

9 The list identified the following incidents. (1) January 

1993, defendant fought with another inmate in a juvenile 

placement. (2) July 1993, defendant and other inmates 

attacked a rival gang member in a juvenile placement. 

(3) January 1994, defendant was involved in a gang fight in 

custody. (4) February 1994, defendant challenged another 

inmate to a fight. (5) August 1994, defendant threatened an 

inmate with violence. (6) August 1994, defendant threatened 

a rival gang member with violence. (7) August 1994, 

defendant fought with another inmate, and struggled and 

physically resisted when staff took him to his room. 
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53

 

(8) August 1994, defendant assaulted another inmate. 

(9) October 1994, defendant assaulted a corrections officer, 

and was convicted of felony battery on a peace officer with 

injury. (10) and (11) April 1995 and May 1995, defendant 

fought with another inmate at the California Youth Authority 

(CYA). (12) December 1995, defendant stated that he enjoys 

physical violence and physical altercations. (13) December 

1995, defendant committed battery on emergency personnel, 

and was convicted of felony assault causing great bodily injury 

on a youth counselor/peace officer at CYA. (14) August 1999, 

defendant attacked another inmate. (15) October 2000, 

defendant threatened a member of the staff of the Department 

of Corrections and Rehabilitation with bodily injury. 

(16) October 2000, defendant slipped handcuffs, attacked an 

inmate, and caused injury to the corrections officer who 

subdued him. (17) September 2001, defendant and two others 

attacked a fourth inmate. (18) November 2003, defendant 

committed spousal battery on his girlfriend, and pleaded guilty 

to willful infliction of corporal injury (§ 273.5). (19) May 2004, 

defendant was convicted of threatening a witness to an 

Eastside Gang crime. (20) October 2004, defendant slipped a 

handcuff while in line for the bus to court, and assaulted and 

injured another inmate in line, who was handcuffed. 

(21) October 2004, defendant stated to correctional officers in 

county jail, “if I’m going to do what I need to do, I don’t care 

what you fuckers do, this is my fucking house, you 

motherfuckers just work here.” (22) April 2005, defendant 

tried to attack another inmate in the county jail. (23) April 

2005, defendant barricaded himself in his cell, was extracted 

by pepper spray and force, and tried to assault correctional 

officers during extraction. (24) April 2005, defendant told 

corrections staff that he would keep fighting them until he 

killed all of them or they killed him. (25) May 2005, in the 

county jail, defendant threatened to “slice up” corrections staff. 

(26) May 2005, while being escorted to the shower, defendant 

tried to assault county jail corrections staff with razor blades 

he hid in his underwear. (27) August 2005, defendant stated 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

54

detailed descriptions of some of the incidents. The 27 

incidents, spanning from 1993 to August 2005, included the

incident in May 2005 involving razor blades. The evidence also 

reflected statements defendant made regarding his intention to 

kill all of the corrections staff, to “go off on random corrections 

officers,” and to build a reputation for when he was sent to 

prison. 

In advancing his argument that he was prejudiced by the 

shackling, defendant focuses on the evidence of the 

circumstances of the crime, particularly Ibarra’s role in the 

murder, and the fact that the jury sent the court a note with 

nine questions regarding the crimes and defendant’s 

background.

10 He contends that these factors demonstrate 

 

that he was willing to “go off on random corrections officers,” 

and was building his reputation to go with him to state prison. 

10 The questions from the jury were received by the court on 

December 19, 2005, and were not answered before the jury 

returned its verdict the same day. The jury’s questions were:

“1. Is there a document signed by Mr. Miracle that says he 

was the one who used the knife to kill Mr. Silva?

“2. What day was Mr. Miracle apprehended and where (city)?

“3. Can you give us Mr. Miracle’s age and the year he first 

started disobeying the laws? What was the offense?

“4. Can you give us some personal background on Mr. Miracle? 

(family life, schooling, his children [and] wife, if any, family 

support system)?

“5. Where does Mr. Gilrada [sic] (witness that Mr. Miracle had 

at knifepoint to his throat) work? What type of work does he 

do? Was he employed at the time of the murder?
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

55

that the jury might have returned a sentence of life without 

the possibility of parole absent the shackling. Certainly, the 

death verdict was not a foregone conclusion, but in light of the 

extensive and graphic evidence of defendant’s violence while 

incarcerated, the inference to be drawn from the shackling 

regarding defendant’s violent tendencies could not have made 

any difference in the jury’s evaluation of the evidence. 

Defendant also cites the prosecutor’s argument to the jury that 

defendant was dangerous, but as noted above, the evidence 

presented at the penalty trial that defendant was dangerous 

provided compelling support for the argument, regardless of 

whether defendant was in visible restraints. 

In sum, the trial court did not abuse its discretion in 

ordering the shackling used in this case, and defendant does 

not establish that the shackles impaired his ability to 

participate in the proceedings or prejudiced him in the eyes of 

the jury. (Anderson, supra, 25 Cal.4th at p. 596 [because the 

 

“6. What happens when you use crystal meth? How long does 

it impact a person? Does it agitate someone? Would a person 

know what they’re doing while under its influence?

“7. Will the testimony of this trial be used in the trial of Mr. 

Ybarra [sic]?

“8. You showed a video of Mr. Ybarra [sic] in a grocery store 

picking up various items. Were the items important to this 

case? Other than Gil stating it was Mr. Ybarra [sic] was there 

any other importance to this video?

“9. What holds more weight — what a witness states under 

oath or what a witness signs as to what happened to be the 

truth?” 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

56

physical restraints did not impair the fairness of the trial, they 

caused no prejudice].) 

IV. CHALLENGES TO CALIFORNIA’S JURY 

INSTRUCTIONS AND DEATH PENALTY STATUTE

Defendant raises a number of challenges to California’s 

death penalty scheme and standard jury instructions that, he 

acknowledges, we have previously considered and rejected. 

Because he identifies no reason to reconsider our prior 

holdings, we will briefly reiterate our relevant holdings below. 

“The death penalty is not unconstitutional for failing to 

meaningfully narrow the class of murderers eligible for the 

death penalty.” (People v. Henriquez (2017) 4 Cal.5th 1, 45

(Henriquez).)

“Section 190.3, factor (a), which permits the jury to 

consider the circumstances of a defendant’s crime in 

determining whether to impose the death penalty, does not 

license the jury to impose death in an arbitrary and capricious 

manner in violation of the Fifth, Sixth, Eighth, and Fourteenth 

Amendments to the United States Constitution.” (People v. 

Simon (2016) 1 Cal.5th 98, 149 (Simon).)

The death penalty is not unconstitutional on the ground 

that it does not require “findings beyond a reasonable doubt 

that an aggravating circumstance (other than Pen. Code, 

§ 190.3, factor (b) or factor (c) evidence) has been proved, that 

the aggravating factors outweighed the mitigating factors, or 

that death is the appropriate sentence.” (People v. Rangel

(2016) 62 Cal.4th 1192, 1235.) “This conclusion is not altered 

by the United States Supreme Court’s decisions in Apprendi v. 

New Jersey (2000) 530 U.S. 466 . . . and Ring v. Arizona (2002) 

536 U.S. 584 . . . .” (Simon, supra, 1 Cal.5th at p. 149.)
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

57

“The federal Constitution does not require that a burden 

of proof be placed on the prosecution at the penalty phase. 

[Citation.] Nor did the trial court err by failing to tell the jury 

that there was no burden of proof. [Citation.] ‘Unlike the guilt 

determination, “the sentencing function is inherently moral 

and normative, not factual” [citation] and, hence, not 

susceptible to a burden-of-proof quantification.” (Henriquez,

supra, 4 Cal.5th at p. 45.) 

“The federal Constitution does not require that the jury 

agree unanimously on which aggravating factors apply. 

[Citation.] This does not violate a capital defendant’s right to 

equal protection of the laws. ‘[C]apital and noncapital 

defendants are not similarly situated and therefore may be 

treated differently without violating constitutional guarantees 

of equal protection of the laws or due process of law.’ ” 

(Henriquez, supra, 4 Cal.4th at p. 45.)

“ ‘CALJIC No. 8.88 properly instructs the jury on its 

sentencing discretion and the nature of its deliberative 

process.’ [Citation.] Its instruction that ‘jurors may impose a 

death sentence only if the aggravating factors are 

“ ‘so substantial’ ” is not impermissibly vague or ambiguous.’ 

[Citation.] ‘CALJIC No. 8.88 is not constitutionally flawed 

because it “uses the term ‘warrants’ instead of ‘appropriate.’ ” ’ 

[Citation.] Nor is it ‘unconstitutional for failing to inform the 

jury that if the mitigating circumstances outweigh those in 

aggravation, it is required to return a sentence of life without 

the possibility of parole.’ ” (People v. Jones (2017) 3 Cal.5th 

583, 619-620 (Jones).)

“ ‘CALJIC No. 8.85 is both correct and adequate.’ 

[Citation.] Its inclusion of such adjectives as ‘extreme’ and 
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Opinion of the Court by Cantil-Sakauye, C. J.

58

‘substantial’ in the list of potential mitigating factors did not 

prevent the jury from considering mitigating evidence. 

[Citation.] The trial court properly instructed ‘the jury in the 

language of CALJIC No. 8.85 without deleting certain factors 

that were inapplicable to defendant’s case.’ [Citation.] The 

trial court had no obligation to advise the jury which 

sentencing factors were aggravating, which were mitigating, or 

which could be either aggravating or mitigating depending on 

the jury’s appraisal of the evidence.” (Jones, supra, 3 Cal.5th 

583, 620.) “The phrase ‘whether or not’ in section 190.3, 

factors (d)–(h) and (j) does not unconstitutionally suggest that 

the absence of a mitigating factor is to be considered as an 

aggravating circumstance.” (People v. Wall (2017) 3 Cal.5th 

1048, 1073; see People v. Cook (2006) 39 Cal.4th 566, 618.)

“We have repeatedly held that ‘ “[t]he trial court’s failure 

to [instruct] the jury that there is a presumption of life does 

not violate a defendant’s constitutional rights to due process, to 

be free from cruel and unusual punishment, to a reliable 

determination of his sentence, and to equal protection of the 

law under the Fifth, Eighth and Fourteenth Amendments to 

the federal Constitution.” ’ ” (People v. Cage (2015) 62 Cal.4th 

256, 293-294.) 

“The penalty phase jury is not required by the federal 

Constitution to make written findings. [Citation.] This 

conclusion is not altered by the high court’s decision in Hurst v. 

Florida (2016) 577 U.S. ___ [136 S.Ct. 616].” (Henriquez,

supra, 4 Cal.5th 1, 45-47.)

“The federal Constitution does not require intercase 

proportionality review.” (Henriquez, supra, 4 Cal.5th at p. 46.)
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

59

“ ‘California does not deny capital defendants equal 

protection of the law by providing certain procedural 

protections to noncapital defendants that are not afforded to 

capital defendants.’ ” (Henriquez, supra, 4 Cal.5th at p. 46.)

“ ‘International norms and treaties do not render the 

death penalty unconstitutional as applied in this state.’ ” 

(Henriquez, supra, 4 Cal.5th at p. 47.)

V. CUMULATIVE ERROR

Defendant contends the cumulative effect of errors 

requires reversal. We have found no errors. In addition, the 

only prejudice we have analyzed is the prejudice defendant 

claims exists with respect to his shackling, and we have 

concluded that he suffered no prejudice. 

VI. RESTITUTION FINE

The trial court ordered defendant to pay an aggregate 

amount of $3,401.12 to four victim restitution funds. It also 

ordered two restitution fines of $10,000 each, pursuant to 

sections 1202.4 and 1202.45. The fine imposed under section 

1202.4, which relates to postrelease supervision, was stayed. 

In a separate case arising from defendant’s conduct while in 

jail, the court ordered him to pay restitution fines of $2,400 

each pursuant to sections 1202.4 and 1202.45, with the fine 

under section 1202.45 stayed. The total amount of fines that 

are not stayed is $15,801.12. Defendant did not object to these 

orders.

Defendant contends the restitution fines under section 

1202.4 should be reduced to the statutory minimum of $200 

because the trial court did not consider whether defendant was 

able to pay the sums imposed, and he is unable to pay a fine of 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

60

more than $200. At the time the fines were imposed, section 

1202.4 provided that “[t]he restitution fine shall be set at the 

discretion of the court and commensurate with the seriousness 

of the offense, but shall not be less than two hundred dollars 

($200), and not more than ten thousand dollars ($10,000), if 

the person is convicted of a felony.” (Former § 1202.4, subd. 

(b)(1), Stats. 2005, ch. 240, § 10.5, p. 2516.) It further provided 

that “[t]he court shall impose the restitution fine unless it finds 

compelling and extraordinary reasons for not doing so, and 

states those reasons on the record. A defendant’s inability to 

pay shall not be considered a compelling and extraordinary 

reason not to impose a restitution fine. Inability to pay may be 

considered only in increasing the amount of the restitution fine 

in excess of the two-hundred dollar ($200) . . . minimum.” 

(Former § 1202.4, subd. (c).)

Because defendant did not object to the fine at his 

sentencing hearing, he has forfeited his challenge. (People v. 

Gamache (2010) 48 Cal.4th 347, 409.) Furthermore, as in 

Gamache, we find that the claim fails on the merits because 

defendant does not establish an inability to pay. He contends 

his indigence is established by the fact that he was appointed 

counsel and provided funds for expert witnesses and 

investigators, and because he assertedly has no earning 

potential. However, the fact that he could not afford the cost of

the defense in a capital case does not establish that he cannot 

pay these fines. As in Gamache, defendant does not “identify 

anything in the record indicating the trial court breached its 

duty to consider his ability to pay” (ibid.), and because “the 

trial court was not obligated to make express findings 

concerning his ability to pay, the absence of any findings does 

not demonstrate it failed to consider this factor. Thus, we 
PEOPLE v. MIRACLE

Opinion of the Court by Cantil-Sakauye, C. J.

61

cannot say on this record that the trial court abused its 

discretion” (ibid.).

VII. CONCLUSION

The judgment is affirmed. 

CANTIL-SAKAUYE, C. J.

We Concur:

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

IKOLA, J.*

 

* Associate Justice of the Court of Appeal, Fourth Appellate District, 

Division Three, assigned by the Chief Justice pursuant to article VI, section 

6 of the California Constitution.
PEOPLE v. MIRACLE

S140894

Dissenting Opinion by Justice Liu

Penal Code section 1018 says no guilty plea to an offense 

punishable by death or life imprisonment without the 

possibility of parole “shall be received from a defendant who 

does not appear with counsel, nor shall that plea be received 

without the consent of the defendant’s counsel.” Today’s 

opinion concludes that the word “counsel” in this sentence 

encompasses advisory counsel, such as the attorney appointed 

to advise the capital defendant in this case. (Maj. opn., ante, at 

pp. 26–35.) But it is evident from a careful reading of the 

entire statute that the word “counsel” has its natural meaning. 

It means an attorney who represents the defendant; it does not 

encompass advisory counsel. Because the court’s contrary 

construction erodes the important safeguard against erroneous 

imposition of the death penalty that section 1018 provides, I 

respectfully dissent.

I.

Penal Code section 1018 provides in full: “Unless 

otherwise provided by law, every plea shall be entered or 

withdrawn by the defendant himself or herself in open court. 

No plea of guilty of a felony for which the maximum 

punishment is death, or life imprisonment without the 

possibility of parole, shall be received from a defendant who 

does not appear with counsel, nor shall that plea be received 

without the consent of the defendant’s counsel. No plea of 
PEOPLE v. MIRACLE

Liu, J., dissenting

2

guilty of a felony for which the maximum punishment is not 

death or life imprisonment without the possibility of parole 

shall be accepted from any defendant who does not appear with 

counsel unless the court shall first fully inform him or her of 

the right to counsel and unless the court shall find that the 

defendant understands the right to counsel and freely waives 

it, and then only if the defendant has expressly stated in open 

court, to the court, that he or she does not wish to be 

represented by counsel. On application of the defendant at any 

time before judgment or within six months after an order 

granting probation is made if entry of judgment is suspended, 

the court may, and in case of a defendant who appeared 

without counsel at the time of the plea the court shall, for a 

good cause shown, permit the plea of guilty to be withdrawn 

and a plea of not guilty substituted. Upon indictment or 

information against a corporation a plea of guilty may be put 

in by counsel. This section shall be liberally construed to effect 

these objects and to promote justice.” (All undesignated 

statutory references are to the Penal Code.)

Let us focus on the second and third sentences of the 

statute. These sentences have parallel structure. The second 

sentence applies to defendants facing the death penalty or life 

imprisonment without parole, whereas the third sentence 

applies to defendants facing lesser sentences. The third 

sentence speaks of “the right to counsel” and waiver of that 

right by a defendant’s informed, voluntary, and express 

statement in open court that “he or she does not wish to be 

represented by counsel.” In other words, “the right to counsel” 

means the right “to be represented by counsel.” Further, a 

defendant seeking to plead guilty must “appear with counsel 

unless” the defendant validly waives “the right to counsel.” 
PEOPLE v. MIRACLE

Liu, J., dissenting

3

The text of the statute leaves no doubt that “counsel,” in all of 

its usages in the third sentence, means an attorney who 

represents the defendant. “Attorneys serving in an advisory or 

standby capacity do not ‘represent’ the defendant . . . .” (People 

v. Lightsey (2012) 54 Cal.4th 668, 692; see ibid. [interpreting 

the phrase “represented by counsel” in section 1368 to exclude 

advisory counsel].) And there is no such thing as a right to 

advisory counsel. (See People v. Moore (2011) 51 Cal.4th 1104, 

1119–1120 [“[A] defendant has no right, under either the 

federal or state Constitution, to ‘hybrid representation.’ 

Criminal defendants have the constitutional right to have an 

attorney represent them, and the right under the federal 

Constitution to represent themselves, but these rights are 

mutually exclusive.” (fn. omitted)].)

In light of the unambiguous meaning of “counsel” in 

section 1018’s third sentence, the term “counsel” in the second 

sentence is most naturally read to have the same meaning. 

(See People v. Ruiz (2018) 4 Cal.5th 1100, 1113 [“ ‘It is an 

established rule of judicial construction that when a term 

appears in different parts of the same act . . . , the term should 

be construed as having the same meaning in each instance.’ ”].) 

This reading is further bolstered by the fact that we are 

construing the same term in neighboring sentences that 

address “ ‘the same or an analogous subject’ matter.” (Kibler v. 

Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 

192, 201; see People v. Tran (2015) 61 Cal.4th 1160, 1168 

[“ ‘when statutes are in pari materia similar phrases appearing 

in each should be given like meanings’ ”]; id. at p. 1167.) 

Moreover, the neighboring sentences have parallel structure, 

and they share an identical usage (“appear with counsel”) that 

was originally enacted as parts of a single sentence. 
PEOPLE v. MIRACLE

Liu, J., dissenting

4

(Stats. 1949, ch. 1310, § 1, p. 2298 [“No plea of guilty of a 

felony for which the maximum punishment is death, or life 

imprisonment without the possibility of parole, shall be 

received from a defendant who does not appear with counsel, 

nor shall any plea of guilty of any other felony be accepted from 

any defendant who does not appear with counsel unless the

court shall first fully inform him of his right to counsel and 

unless the court shall find that the defendant understands his 

right to counsel and freely waives it.” (italics added)].)

Today’s opinion acknowledges that the phrase “right to 

counsel” in the third sentence of section 1018 must mean the 

right “to be represented by counsel,” as the statute plainly 

says. (Maj. opn., ante, at pp. 31–32.) From there, the court 

says “the word ‘counsel’ (standing alone or in other contexts) 

may carry a more expansive meaning.” (Id. at p. 32; see id. at 

p. 33, fn. 1.) But the court makes no effort to examine the 

context in which the word “counsel” appears in section 1018. 

How could the word “counsel,” as used in the third sentence, 

mean something different in the phrase “appear with counsel” 

than in the phrase “right to counsel” or “represented by 

counsel”? After all, the third sentence says that a defendant 

seeking to plead guilty must “appear with counsel unless the 

court shall first fully inform him or her of the right to counsel 

and unless the court shall find that the defendant understands 

the right to counsel and freely waives it, and then only if the 

defendant has expressly stated in open court, to the court, that 

he or she does not wish to be represented by counsel.” (Italics 

added.) In addition, how could the phrase “appear with 

counsel” mean something different in the second sentence than 

in the third sentence, in light of the fact that both usages were 
PEOPLE v. MIRACLE

Liu, J., dissenting

5

originally enacted as part of a single sentence? The court 

simply ignores these obvious linguistic clues.

In addition to defying ordinary rules of construction, the 

court’s interpretation of section 1018 is problematic for reasons 

that are apparent in this case. Defendant Joshua Miracle was 

initially represented by Michael Carty. When Miracle decided 

he wanted to plead guilty to special-circumstance murder, 

Carty refused to consent. Miracle then sought to represent 

himself in order to plead guilty. The trial court granted 

Miracle’s request and appointed Joe Allen as advisory counsel. 

Allen consented to Miracle’s guilty plea because he believed 

Miracle’s acceptance of responsibility would serve as important 

mitigating evidence in an “intelligent penalty phase strategy.” 

Allen told the trial court that the fact that Miracle’s plea would 

be used at the penalty phase “is a very important factor for me 

in agreeing to go along with this proposal.” But Miracle told 

the trial court that he “just want[ed] to make clear that . . . 

using that as mitigating evidence at the penalty trial is not my 

motive for pleading guilty.” And in fact, Miracle “did not 

present any evidence at the penalty phase and declined to 

make a closing argument.” (Maj. opn., ante, at p. 8.)

From this sequence of events, it is clear that Allen’s 

consent to Miracle’s guilty plea did not serve as the 

“independent safeguard” that section 1018 requires (People v. 

Chadd (1981) 28 Cal.3d 739, 750 (Chadd)) because Allen, as 

advisory counsel, did not and could not exercise control over 

trial strategy. That control belonged exclusively to Miracle 

after the trial court allowed him to represent himself. The 

clear disconnect between the rationale for Allen’s consent and 

Allen’s inability to direct a defense in accordance with that 
PEOPLE v. MIRACLE

Liu, J., dissenting

6

rationale illuminates why the term “counsel” in the second 

sentence of section 1018 does not encompass advisory counsel.

In response to this disconnect, today’s opinion says 

“nothing in section 1018 prohibits a capital defendant who has 

pleaded guilty [with counsel’s consent] from substituting 

counsel or electing self-representation at the penalty phase.” 

(Maj. opn., ante, at p. 34–35, fn. omitted.) But, as the trial 

court in this case recognized, self-representation after the guilt 

phase of a capital proceeding is a matter within the trial 

court’s discretion (People v. Bloom (1989) 48 Cal.3d 1194, 

1220), as is substitution of appointed counsel at any point 

(People v. Walker (1976) 18 Cal.3d 232, 238). In discussing 

with Miracle his desire to plead guilty, the trial court 

considered the option of appointing Allen as counsel but made 

clear that if it did so, it “would not then allow defendant to 

represent himself again if he did not like how Allen was 

representing him at either stage.” (Maj. opn., ante, at p. 21.) 

Section 1018 is properly construed against the backdrop of 

trial courts’ authority to prevent capricious or manipulative 

behavior by defendants.

Today’s holding is in significant tension with Chadd, 

where we held that “the trial court had no authority to accept 

[the defendant’s] guilty plea to a capital offense in the face of 

his counsel’s express refusal to consent to the entry of such a 

plea.” (Chadd, supra, 28 Cal.3d at p. 746.) There, the 

Attorney General had argued that “section 1018 can be 

‘construed’ to permit a capital defendant to discharge his 

attorney, represent himself, and enter a guilty plea.” (Ibid.) 

“But,” we said, “that is precisely what the third sentence of 

section 1018 expressly authorizes noncapital defendants to do. 

The proposal would thus obliterate the Legislature’s careful 
PEOPLE v. MIRACLE

Liu, J., dissenting

7

distinction between capital and noncapital cases, and render 

largely superfluous its special provision for the former. Such a 

construction would be manifestly improper.” (Id. at p. 747, 

fn. omitted.)

The scenario we disapproved in Chadd is essentially the 

scenario the court approves today in light of the appointment 

of advisory counsel who, although well-meaning, had no 

authority to direct Miracle’s defense and whose advice on 

penalty-phase strategy ultimately went unheeded. This is an 

end run around section 1018’s clear prohibition on accepting a 

guilty plea to a capital offense unless the defendant “appear[s] 

with counsel” and has “the consent of [his] counsel.” As we 

said in Chadd and reaffirmed in People v. Alfaro (2007) 41 

Cal.4th 1277 (Alfaro), “ ‘it is difficult to conceive of a plainer 

statement of law than the rule of section 1018 that no guilty 

plea to a capital offense shall be received “without the consent 

of the defendant’s counsel.” ’ ” (Id. at p. 1298, quoting Chadd, 

supra, 28 Cal.3d at p. 746.) The Legislature need not abide the 

erosion of this important safeguard in capital cases; it can 

correct today’s decision by expressly stating that the word 

“counsel” in section 1018 means an attorney who represents 

the defendant and does not include advisory or standby 

counsel.

II.

The Attorney General, taking a view contrary to his 

position in another pending case (Respondent’s Answering Br. 

at p. 34, People v. Frederickson (S067392)), argues that reading 

section 1018 to mean what it plainly means would run afoul of 

a capital defendant’s constitutional right to refuse counsel and 

represent himself. (Faretta v. California (1975) 422 U.S. 806 
PEOPLE v. MIRACLE

Liu, J., dissenting

8

(Faretta).) Today’s opinion says its construction of section 1018 

has the virtue of avoiding this constitutional issue. (Maj. opn., 

ante, at p. 32.) But we construe statutes to avoid serious 

constitutional questions only when doing so is “reasonably 

possible.” (People v. Engram (2010) 50 Cal.4th 1131, 1161; see 

Warger v. Shauers (2014) 574 U.S. __, __ [135 S.Ct. 521, 529] 

[the avoidance canon “ ‘has no application in the absence 

of . . . ambiguity’ ”].) Like this court in Chadd and Alfaro, I see 

no ambiguity here, especially when the second sentence of 

section 1018 is read together with the third sentence. And in 

any event, like this court in Chadd and Alfaro, I see no 

constitutional infirmity in section 1018, at least as applied to 

the facts here.

In Chadd, the Attorney General argued that if section 

1018 cannot be construed to permit a capital defendant to 

discharge counsel, represent himself, and enter a guilty plea, 

then “it is unconstitutional because it allows counsel to ‘veto’ a 

capital defendant’s decision to plead guilty.” (Chadd, supra, 28 

Cal.3d at p. 747.) We rejected the argument, explaining that it 

“fails to recognize the larger public interest at stake in pleas of 

guilty to capital offenses. It is true that in our system of 

justice the decision as to how to plead to a criminal charge is 

personal to the defendant: because the life, liberty or property 

at stake is his, so also is the choice of plea. [Citation.] But it is 

no less true that the Legislature has the power to regulate, in 

the public interest, the manner in which that choice is 

exercised. Thus it is the legislative prerogative to specify 

which pleas the defendant may elect to enter (Pen. Code, 

§ 1016), when he may do so (id., § 1003), where and how he 

must plead (id., § 1017), and what the effects are of making or 

not making certain pleas.
PEOPLE v. MIRACLE

Liu, J., dissenting

9

“A plea of guilty, of course, is the most serious step a 

defendant can take in a criminal prosecution. It operates first 

as a waiver of formal defects in the accusatory pleading that 

could be reached by demurrer. [Citations.] Next, because 

there will be no trial the plea strips the defendant of such 

fundamental protections as the privilege against selfincrimination, the right to a jury, and the right of 

confrontation. [Citations.] As to the merits, the plea is 

deemed to constitute a judicial admission of every element of 

the offense charged. [Citation.] Indeed, it serves as a 

stipulation that the People need introduce no proof whatever to 

support the accusation: the plea ipso facto supplies both 

evidence and verdict. [Citation.] ‘A plea of guilty is more than 

a confession which admits that the accused did various acts; it 

is itself a conviction; nothing remains but to give judgment and 

determine punishment.’ [Citation.] Finally, it severely 

restricts the defendant’s right to appeal from the ensuing 

judgment. [Citation.]” (Chadd, supra, 28 Cal.3d at pp. 747–

748.)

Section 1018’s prohibition on pleading guilty to capital 

charges without the consent of counsel, Chadd explained, “was 

an integral part of the Legislature’s extensive revision of the 

death penalty laws in response to the decision of the United 

States Supreme Court in Furman v. Georgia (1972) 408 U.S. 

238. (Stats. 1973, ch. 719, §§ 2–6, pp. 1297–1300.) That 

revision, of course, was an effort to eliminate the arbitrariness 

that Furman found inherent in the operation of prior death 

penalty legislation. [Citation.] The fact that the requirement 

of counsel’s consent to guilty pleas in capital cases was enacted 

as part of that statutory scheme demonstrates that the 
PEOPLE v. MIRACLE

Liu, J., dissenting

10

Legislature intended it to serve as a further independent 

safeguard against erroneous imposition of a death sentence.

“Two years later the United States Supreme Court 

decided Faretta, holding that defendants in state criminal 

trials have a federal constitutional right of self-representation. 

But that decision did not strip our Legislature of the authority 

to condition guilty pleas in capital cases on the consent of 

defense counsel. . . . [¶] . . . The opinion first categorizes the 

several pretrial and trial rights guaranteed by that 

amendment as ‘necessary to a full defense’ ([Faretta, supra,

422 U.S.] at p. 818), and observes that the amendment 

‘constitutionalizes the right in an adversary criminal trial to

make a defense as we know it.’ (Ibid.; italics added.) The 

opinion then reiterates (at p. 819) that the amendment grants 

to the accused personally ‘the right to make his defense,’ and 

concludes: ‘Although not stated in the Amendment in so many 

words, the right to self-representation — to make one’s own

defense personally — is thus necessarily implied by the 

structure of the Amendment. The right to defend is given 

directly to the accused; for it is he who suffers the 

consequences if the defense fails.’ (Italics added; fn. omitted.) 

(Id. at pp. 819–820.)

“The Attorney General in effect stands Faretta on its 

head: from the defendant’s conceded right to ‘make a defense’ 

in ‘an adversary criminal trial,’ the Attorney General attempts 

to infer a defendant’s right to make no such defense and to 

have no such trial, even when his life is at stake. But in 

capital cases, as noted above, the state has a strong interest in 

reducing the risk of mistaken judgments. Nothing in Faretta, 

either expressly or impliedly, deprives the state of the right to 

conclude that the danger of erroneously imposing a death 
PEOPLE v. MIRACLE

Liu, J., dissenting

11

sentence outweighs the minor infringement of the right of selfrepresentation resulting when defendant’s right to plead guilty 

in capital cases is subjected to the requirement of his counsel’s 

consent.” (Chadd, supra, 28 Cal.3d at pp. 750–751.)

Just as a state may prohibit all guilty pleas to murder 

charges or may prohibit capital defendants from waiving an 

automatic appeal without running afoul of Faretta (see Chadd, 

supra, 28 Cal.3d at pp. 751–752), the requirement of counsel’s 

consent to a guilty plea to a capital offense is a “ ‘reasonable’ ” 

means of protecting the state’s interest in the accuracy and 

fairness of its proceedings (id. at p. 753). It serves “as a filter 

to separate capital cases in which the defendant might 

reasonably gain some benefit by a guilty plea from capital 

cases in which the defendant, as here, simply wants the state 

to help him commit suicide.” (Ibid., fn. omitted.)

In 2007, we reaffirmed this understanding of section 

1018 in Alfaro. There, a capital defendant sought to enter a 

guilty plea not with the goal of committing suicide but “to 

avoid testifying against ‘Beto,’ whom her counsel sought to 

implicate as an accomplice in the murder.” (Alfaro, supra, 41 

Cal.4th at p. 1300.) Defense counsel refused to consent to the 

plea, and the trial court determined that under section 1018 it 

lacked authority to accept the plea absent counsel’s consent. 

We held that counsel’s refusal to consent was reasonable 

(Alfaro, at pp. 1300–1301), and we rejected the defendant’s 

argument that her desire to plead guilty “concerned a 

fundamental aspect of her defense that . . . must remain within 

defendant’s control” (id. at p. 1302). Relying extensively on 

Chadd, we concluded that “nothing in the record supports 

defendant’s contention that her desire to plead guilty was 

motivated by a desire to establish a defense of remorse or to 
PEOPLE v. MIRACLE

Liu, J., dissenting

12

demonstrate her acceptance of responsibility for the murder so 

that a lesser punishment might be imposed at the penalty 

phase. Accordingly, the trial court reasonably concluded that 

the dispute between defendant and her counsel did not 

implicate a constitutionally protected fundamental interest 

that might override the plain terms of section 1018.” (Alfaro, 

at p. 1302, fn. omitted; see id. at pp. 1298–1301.)

Our unanimous opinion in Alfaro reaffirmed that “[t]he 

consent requirement of section 1018 has its roots in the state’s 

strong interest in reducing the risk of mistaken judgments in 

capital cases and thereby maintaining the accuracy and 

fairness of its criminal proceedings.” (Alfaro, supra, 41 Cal.4th 

at p. 1300, citing Chadd, supra, 28 Cal.3d at pp. 750, 753.) We 

explained that “[t]he statute constitutes legislative recognition 

of the severe consequences of a guilty plea in a capital case, 

and provides protection against an ill-advised guilty plea and 

the erroneous imposition of a death sentence.” (Alfaro, at 

p. 1300; cf. Beck v. Alabama (1980) 447 U.S. 625, 638 (Beck) 

[Eighth Amendment’s prohibition on cruel and unusual 

punishment requires a heightened degree of reliability in 

capital cases not only in sentencing but also in “the guilt 

determination”].) And recently, we again recognized that “[a] 

societal interest in the integrity of the capital process may at 

times outweigh a defendant’s stated preferences in controlling 

his or her own case. For example, . . . state law prevents any 

defendant from pleading guilty to capital charges without 

consent of counsel, in light of ‘the state’s strong interest in 

reducing the risk of mistaken judgments in capital cases and 

thereby maintaining the accuracy and fairness of its criminal 

proceedings.’ (Alfaro, supra, 41 Cal.4th at p. 1300.)” (People v. 

Daniels (2017) 3 Cal.5th 961, 1005 (Daniels); see also People v. 
PEOPLE v. MIRACLE

Liu, J., dissenting

13

Mai (2013) 57 Cal.4th 986, 1055 [citing section 1018 as an 

example of the “limited circumstances in which, as a matter of 

fundamental public policy, rights and decisions that are 

normally personal to a criminal defendant may be limited or 

overruled in the service of death penalty reliability”].)

Like Chadd and Alfaro, this case presents no occasion to 

decide whether section 1018 unconstitutionally restricts a 

capital defendant’s right to make fundamental decisions about 

his or her defense when the defendant, against the advice of 

counsel, wishes to plead guilty as part of a strategy to avoid 

the death penalty. In such a case, the disagreement between 

the defendant and counsel arguably goes to the right to “make

one’s own defense personally.” (Faretta, supra, 422 U.S. at

p. 819.) Here, by contrast, Miracle told the trial court that he 

“want[ed] to do the right thing and take responsibility and 

offer exonerating testimony on behalf of Mr. Ibarra,” and that 

he “just want[ed] to make clear that . . . using that as 

mitigating evidence at the penalty trial is not my motive for 

pleading guilty.” Although Allen said a “very important factor” 

for him (Allen) in agreeing with the plea was its utility as 

mitigating evidence in the penalty phase, Miracle consistently 

told the trial court that he did not wish to offer any mitigating 

evidence at the penalty phase (maj. opn., ante, at pp. 12–14, 

19–20), and in fact he did not put on any mitigating evidence 

(id. at p. 8). As in Alfaro, the record does not show that 

defendant’s “desire to plead guilty was motivated by a desire to 

establish a defense of remorse or to demonstrate [his] 

acceptance of responsibility for the murder so that a lesser 

punishment might be imposed at the penalty phase.” (Alfaro, 

supra, 41 Cal.4th at p. 1302, italics added.)
PEOPLE v. MIRACLE

Liu, J., dissenting

14

Miracle may have believed, according to his own ethical 

code, that accepting responsibility — with no further 

instrumental purpose — was “the right thing” to do for himself 

and for his codefendant Ibarra. But the state has a strong 

interest in the operation of its criminal justice system in 

accordance with applicable law, not the ethical code of a 

particular defendant. This interest is at its apex in capital 

cases due to the severity and finality of the death penalty. (See 

Beck, supra, 447 U.S. at p. 637.) To be sure, a self-represented 

defendant may decide not to mount any defense in a capital 

trial. (Daniels, supra, 3 Cal.5th at pp. 984–985.) “But a trial, 

even one where a defense is voluntarily forgone, is 

fundamentally different from a guilty plea. In [a trial], the 

state [is] put to its burden of proof as to the murder charges 

and related counts. A plea, on the other hand, ‘serves as a 

stipulation that the People need introduce no proof whatever to 

support the accusation’ and ‘ “is itself a conviction.” ’ (Chadd, 

supra, 28 Cal.3d at p. 748.) Moreover, a guilty plea severely 

limits the right to appeal. (See ibid.)” (Id. at p. 983.)

It is true that Allen believed the prosecution’s evidence 

was very strong and advised Miracle to that effect. But Allen’s 

support for Miracle’s plea as part of “an intelligent penalty 

phase strategy” provided no check on whether the plea, shorn 

of any use at the penalty phase, would heighten the risk of a 

mistaken judgment in this capital case. The attorney who had

considered that question, Carty, refused to consent to the plea. 

Here, as in Chadd and Alfaro, the application of section 1018 

as an “independent safeguard against erroneous imposition of 

a death sentence” does not impermissibly compromise the 

constitutional right to self-representation or the right to 
PEOPLE v. MIRACLE

Liu, J., dissenting

15

control a fundamental aspect of the defense. (Chadd, supra, 28 

Cal.3d at p. 750; see Alfaro, supra, 41 Cal.4th at p. 1302.)

The Attorney General cites McCoy v. Louisiana (2018) 

584 U.S. __ [138 S.Ct. 1500]), which held that defense counsel 

cannot concede a capital defendant’s guilt over the defendant’s 

objection. The high court reasoned that a defendant’s decisions 

to “refuse to plead guilty in the face of overwhelming evidence 

against her” and to “maintain[] her innocence at the guilt 

phase of a capital trial” are “not strategic choices about how 

best to achieve a client’s objectives; they are choices about what 

the client’s objectives in fact are.” (Id. at p. 1508.) I 

acknowledge that aspects of McCoy may be read to suggest 

that a defendant retains the ultimate right to decide whether 

to plead guilty to capital charges. (See, e.g., ibid. [“whether to 

plead guilty” is a decision “reserved for the client”].) But 

McCoy did not weigh a defendant’s autonomy interests against 

countervailing reliability interests; it did not address whether 

a capital defendant may enter a guilty plea against the advice 

of counsel in the face of a state statute requiring counsel’s 

consent as a measure to lessen the risk of a mistaken 

judgment. (See People v. Ghobrial (2018) 5 Cal.5th 250, 285 

[“ ‘a decision is not authority for propositions not 

considered’ ”].) McCoy’s holding is that “it is the defendant’s 

prerogative, not counsel’s, to decide on the objective of his 

defense: to admit guilt in the hope of gaining mercy at the 

sentencing stage, or to maintain his innocence, leaving it to the 

State to prove his guilt beyond a reasonable doubt.” (McCoy, at 

p. __ [138 S.Ct. at p. 1505].) The case before us does not 

involve a defendant who sought “to admit guilt in the hope of 

gaining mercy at the sentencing stage.” (Ibid.)
PEOPLE v. MIRACLE

Liu, J., dissenting

16

In sum, the trial court should have followed its initial 

instinct not to accept Miracle’s guilty plea without the consent 

of counsel. The discharge of Miracle’s attorney and 

appointment of advisory counsel who subsequently agreed with 

the plea did not satisfy section 1018’s plain requirement that a 

defendant who wishes to plead guilty to a capital offense must 

“appear with counsel” and have the “consent of the defendant’s 

counsel.” The constitutionality of applying section 1018 might 

be a more difficult question if Miracle had chosen to plead 

guilty in order to improve his penalty-phase defense, as Allen 

had advised. But the application of section 1018 to the 

circumstances here presents no constitutional infirmity. The 

trial court’s error under section 1018 requires reversal of the 

judgment on the counts to which Miracle pleaded guilty. (See 

Chadd, supra, 28 Cal.3d at pp. 754–755.)

I respectfully dissent.

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Miracle

_______________________________________________________________________________

___

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

_______________________________________________________________________________

___

Opinion No. S140894

Date Filed: December 3, 2018

_______________________________________________________________________________

___

Court: Superior

County: Santa Barbara

Judge: Brian E. Hill

_______________________________________________________________________________

___

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, and Andrea G. Asaro, Deputy 

State Public Defender, for Defendant and Appellant.

Law Offices of John T. Philipsborn, John T. Philipsborn; Sanger Swysen & Dunkle and Stephen 

K. Dunkle for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant 

and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee, 

Peggy Z. Huang, James William Bilderback II and Blythe J. Leszkay, Deputy Attorneys General, 

for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrea G. Asaro

Deputy State Public Defender

1111 Broadway, Suite 1000

Oakland, CA 94607

(510) 267-3300

Blythe J. Leszkay

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6191