IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL LEON BELL,

Defendant and Appellant.

S080056

Stanislaus County Superior Court

133269

May 2, 2019

Justice Corrigan authored the opinion of the court, in which 

Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar, 

Kruger, and Groban concurred.
1

PEOPLE v. BELL

S080056

Opinion of the Court by Corrigan, J.

While his girlfriend and her teenage son waited outside, 

defendant Michael Leon Bell robbed a convenience store and 

fatally shot the clerk. He was convicted of murder in the course 

of a robbery along with burglary, robbery, shooting at an 

occupied vehicle, unlawful possession of a firearm, and

enhancements for a serious felony conviction and personal use 

of a firearm.

1 The jury fixed the penalty at death. The court 

also imposed a determinate sentence of 25 years and 4 months 

on the additional charges and enhancements. We affirm the 

judgment.

I. BACKGROUND

A. Guilt Phase

Three surveillance cameras recorded a robbery of the Quik 

Stop convenience store in Turlock on January 20, 1997. The 

footage showed clerk Simon Francis dusting shelves at 3:54 a.m. 

when a man entered the store. The robber wore a ski mask and 

a dark hooded jacket. He appeared to be somewhere between 

six feet, two inches and six feet, five inches tall.2 He wore gloves 

 

1 Penal Code sections 187, 190.2, subdivisions (a)(17)(A) & 

(a)(17)(G), 211, 246, former 12021, 667, subdivision (d), 1192.7, 

subdivision (c), and 12022.5. All statutory references are to the 

Penal Code unless otherwise stated.

2 Defendant is six feet, five inches tall and, when arrested, 

weighed 260 pounds. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

2

and carried a revolver. The robber grabbed Francis and pulled 

him across the store, telling him to open the safe. When Francis 

said he did not know the combination, the robber dragged him 

behind the counter to the cash register, which Francis opened. 

The robber ordered him to lie face down on the floor, grabbed 

cash from the register, and threw the money tray to the floor. 

He fired two shots at Francis and left. The robber was in the 

store less than a minute and escaped with $261. Surveillance 

equipment also recorded the sound of gunshots being fired 

outside after the robber left the store. 

Shortly before 4:00 a.m., truck driver Daniel Perry

stopped at an intersection near the Quik Stop and saw a tall 

man in a dark hooded jacket run out of the store. Perry pulled 

away but heard two gunshots. Believing he was being shot at, 

Perry kept going. He passed a dark sedan parked off the side of 

the road. As Perry watched from his side mirror, the sedan’s 

lights came on and it drove off. Perry called the police. His truck 

had been dented near the passenger door. Later, police 

recovered a bullet from the driveway just north of the Quik Stop. 

Tire tracks and shoe prints were also visible nearby. 

Truck driver Richard Faughn stopped at the Quik Stop at 

3:58 a.m. The cash register drawer was open, and the clerk lay

motionless behind the counter. The register’s money tray sat

against the clerk’s leg, and change was scattered on the floor. 

Faughn called 911 and stayed until police arrived. 

Emergency responders tried to resuscitate Francis

without success. When they moved his body, they found a 

deformed bullet beneath him. Francis had been shot twice in 

the back. The fatal bullet traveled through his heart and lungs,
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

3

exiting through the chest. A second bullet lodged in his 

abdominal cavity. 

Police identified defendant as a suspect and interviewed 

him. Defendant said he had been sick and spent the weekend of 

the murder at his girlfriend’s apartment. He claimed he did not 

go to the Quik Stop or anywhere else the entire weekend. He 

said he had been with his girlfriend, Roseada T., her teenage 

son, Taureen “Tory” T.,

3 and Tory’s friend, later identified as 

Robert D. Roseada drove a blue 1988 Chevrolet Beretta. 

The police later arrested Roseada, searched her home, and 

impounded her car. Tread patterns from her car tires were 

compared with tire tracks found near the Quik Stop. Patterns 

from both front tires and the right rear tire could not be excluded 

as a source of marks left at the scene. Roseada helped police 

recover the murder weapon from a field. A .357 magnum

revolver and several .38 caliber bullets were buried inside a 

green cloth case. Bullets fired from this gun matched slugs

recovered from the crime scene and the victim’s autopsy. 

Another bullet, recovered from outside the store, was too 

damaged for a comparison. Gunshot residue on the victim’s 

sweater indicated that the gun was only one to two feet away

when fired. 

Witness Phillip Campbell recognized the revolver as one 

he had purchased from his brother-in-law and later sold to Nick 

Feder. Feder sold the gun to Debra Ochoa. Ochoa testified that 

 

3 Because Roseada and Tory share the same last name, and 

because Tory was a minor, we use their given names. Roseada 

died from natural causes on December 27, 1998, around three 

months before the trial began. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

4

she had known defendant for approximately 14 years. She was 

not questioned about the gun. (See post, at pp. 37-39.)

Nathan N. was 15 years old at the time of the murder.4 

Roseada, Tory, and the defendant were all friends of his. 

Defendant borrowed a black hooded jacket, size XXXL, from 

Nathan about a month before the murder and returned it 

sometime thereafter. Nathan and his foster mother brought the 

jacket to the police. Nathan examined still images from the

Quik Stop surveillance video and testified that the murderer’s

jacket looked like his. 

Nathan recalled seeing defendant with a revolver two or 

three weeks before the robbery. Sometime later, defendant gave 

the gun to a friend. Roseada later asked Nathan and Felix F. to 

get the gun back. They brought the gun to Roseada, who cleaned 

it. Afterward, they buried it in a field inside a green package. 

Tory, 14 years old at the time of the murder, testified as 

part of a plea agreement.

5 Defendant moved in with Tory and 

his mother sometime in 1996. In December of that year, 

defendant showed Tory a .357 revolver loaded with .38 caliber 

bullets. Defendant said he got the gun because he wanted to rob 

someone. One night, Tory saw the gun and a red ski mask in 

his mother’s bedroom. Roseada and defendant were loading the 

gun and cleaning it with alcohol, which they said would prevent 

fingerprints. They also wrapped electrical tape around 

defendant’s shoes to mask their appearance. Defendant wore a 

black jacket Tory recognized as belonging to Nathan. Tory 

 

4 Nathan testified under a grant of immunity. 

5 He pleaded guilty to being an accessory after the fact and 

was sentenced to time served. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

5

understood his mother and defendant were preparing to commit 

a robbery and wanted to join them. Although Roseada 

protested, defendant convinced her to let Tory come along. 

At defendant’s direction, Roseada drove around looking for 

a store to rob. After defendant rejected some locations, they 

chose the Quik Stop because it had no customers and was in an 

isolated area. Defendant got out of the car and asked Tory if he 

should kill the clerk. Tory said no. When defendant ran out, 

holding cash in his hand, a large truck drove by. Defendant shot 

twice at the truck, got in the car, and Roseada drove off. Back 

at the apartment, they cleaned the gun and bullets. Tory buried 

the gun and burned defendant’s shoes, as defendant told him to 

do. Tory identified defendant as the shooter in the surveillance 

video. Defendant told Tory he shot the clerk because he put up 

a struggle. He said he shot at the truck driver because he 

wanted to leave no witnesses. 

The defense presented testimony from two boys who had 

been in custody with Tory in juvenile hall. Kenneth A. said Tory 

had bragged that he committed the Quik Stop murder and was 

going to let defendant take the blame for it.6 Tory told Brandon 

T. he was in the car with his mother when her boyfriend 

committed the murder, but he described the boyfriend as “a 

black guy” from Las Vegas. He did not mention defendant. Tory 

also said he had buried the gun and burned a mask used in the 

crime. 

 

6 At 5 feet, 10 inches tall and 135 pounds, Tory was 

considerably smaller than defendant, but the defense stressed 

that police had originally described the suspect as someone 

under six feet tall and of slim build.
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

6

On rebuttal, Tory’s grandmother testified that Roseada 

was once married to an African-American man from Las Vegas 

who died 10 months before the Quik Stop murder. 

B. Penalty Phase

1. Prosecution Evidence

The victim’s father testified that Francis was the youngest 

of seven children. He was very upset after Francis died and 

could not go to church or visit his son’s grave. The victim’s older 

sister described Francis as kind and understanding, “the jewel 

of our family.” He was precious to her because she had raised 

him like a son. She suffered a stroke upon learning of his death. 

Francis was 27 years old and had been married less than two 

months when murdered. His wife’s cousin described him as her 

“best friend” and “the nicest guy [she had] ever met.” Shortly 

before his death, Francis was buying frames for wedding 

photographs and planning to pick up the videotape of his

wedding. He never had a chance to see it. The prosecutor played 

a four-minute excerpt from the tape. 

The prosecution presented extensive testimony about 

defendant’s past. L.O. described a sexual assault in May 1991. 

She was 19 years old, living with the defendant and their two 

young children. Defendant came home angry and intoxicated. 

He dragged her to the bedroom, threw her onto the bed, removed 

some of her clothing, and tried to have sex with her. In her 

struggle to escape, L.O. suffered a swollen lip. She later learned 

she was more than three months pregnant with defendant’s 

third child at the time. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

7

In September 1993, defendant assaulted Patrick Carver.

7

 

Defendant and some others confronted Carver at a house where 

he was staying. A girl tried to provoke Carver into hitting her, 

while the group circled around him. This incident ended 

without a fight, but later that evening the group returned. 

Defendant dragged Carver out of his car and slammed him to 

the ground. Defendant repeatedly kicked Carver in the face

while the others restrained him. After Carver was beaten into 

unconsciousness, defendant threw him over a backyard fence. 

Carver recalled being tied to a chair while the group continued 

to beat and kick him. At one point, defendant took Carver’s 

knife, held it across his throat, and jabbed its tip into the top of 

Carver’s head. Feigning concern at Carver’s distress, defendant 

asked if he would like a drink. When Carver said yes, defendant 

turned on the garden hose and held it to Carver’s mouth. As

Carver started to drink, defendant grabbed his head and shoved 

the hose deep into his mouth. Carver began choking, shaking, 

and kicking. Defendant did not remove the hose until one of the 

others pointed a gun at him and said “that was enough.” 

Defendant demanded money from Carver, who said he could get 

some from his family. The group drove to a pay phone. While 

Carver was using the phone, the police drove up and defendant 

fled. 

Defendant assaulted two other men less than a year before 

the Quik Stop killing. In February 1996, he confronted Gary 

Wolford, claiming Wolford’s friend had provided “some bad 

 

7 Two witnesses testified about this assault. Lawrence 

Smith, one of the assailants, testified during the prosecution’s 

case-in-chief, and victim Patrick Carver testified in rebuttal. 

Carver identified his primary assailant as “Mike Brown” but 

said he did not recognize defendant as being this person. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

8

crank.” Defendant insisted Wolford take drugs with him to 

show he was not “a snitch and a rat” and demanded $100. He 

shoved Wolford to the ground, grabbed him by the neck, and 

smashed his head against a wall. After three to four hours, 

defendant let Wolford leave but warned that he would hurt 

Wolford if he did not get $100 by the next day. A month later, 

defendant assaulted Larry Woolridge, a friend he had known 

since childhood. Woolridge had given defendant $25 to buy 

marijuana. Defendant left with the money but returned and 

accused Woolridge of “being a cop.” Defendant and another man

pulled Woolridge outside, struck him in the face, and swung 

machetes at him. Defendant demanded Woolridge’s money, 

which he surrendered. 

Around a month after the Quik Stop murder, defendant 

led the police on a high-speed chase. A patrol officer saw 

defendant shortly after midnight, going 90 miles per hour on city 

streets. He slowed after passing the patrol car, but then drove 

through a stop sign and accelerated away with his headlights 

off. The officer pursued with lights and siren. Rounding a 

corner, the officer noticed defendant’s car parked at the curb, 

apparently unoccupied. As the officer stood outside his patrol 

car, defendant sat up, started his car’s engine, and sped away. 

The chase continued through narrow residential streets at 

speeds between 55 and 75 miles per hour. Defendant ran

multiple stop signs and sometimes drove on the wrong side of 

the road. He was eventually forced to stop at a construction 

barricade. Defendant was uncooperative, initially refusing to 

leave the car or put his hands in the air. He yelled at officers 

and resisted being handcuffed. His blood alcohol content was 

between .10 and .11 percent. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

9

Finally, sheriff’s deputies described two incidents while 

defendant was in custody. Before trial began, a deputy 

discovered a jail-made knife, or shank, hidden inside one of 

defendant’s shoes. It had been sharpened on both sides and 

tapered on one end to a sharp point. Hidden inside the other 

shoe was a piece of glass wrapped in tape. Later, during the 

penalty phase, deputies heard the sound of metal hitting the 

floor near defendant’s cell. When they came to investigate, 

defendant handed over a shank he had hidden under his 

mattress. 

Defendant stipulated that in September 1995 he was 

convicted of being a felon in possession of a firearm. 

2. Defense Evidence

Joseph Black and Lawrence Smith gave additional details 

about defendant’s fight with Patrick Carver. Black said the 

fight concerned Carver’s delinquent rent. Carver wanted to 

brawl, but defendant “got the better of the fight.” Black never 

saw defendant use a knife, jump on Carver, throw him over a 

fence, or force a garden hose into his mouth. Smith admitted 

that, contrary to his testimony for the prosecution, he did not

initially tell the police about the knife, fence-throwing, or garden 

hose. He lied because he feared for his safety. However, he later 

told the police that defendant had hit Carver several times and 

used a knife. Black confirmed that the group drove to a pay 

phone so that Carver could ask his family for money and that 

defendant ran away when police arrived. The group falsely 

identified defendant as “Mike Brown.” 

James Park testified as an expert on conditions for 

California prisoners sentenced to life without parole. He showed 

pictures of a typical cell and explained that all life prisoners are 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

10

automatically assigned to a maximum security prison. Two 12-

foot fences topped with razor wire surround the prison. Between 

them is a 13-foot high-voltage electric fence. Prisoners who get 

in “bad trouble” can be kept in secure housing for up to 23 hours 

a day. Those not confined in the secure unit can work, go to 

school, exercise, watch television, or visit prison shops and

libraries. 

Defendant’s mother described his upbringing. She gave 

birth to defendant when she was 16 years old. He was nearly 

three months premature and weighed slightly over three 

pounds, requiring incubation for eight weeks. During his first 

two years, he was very sickly and frequently hospitalized. The 

family moved often because defendant’s father was in the Air 

Force. At about age four, defendant was prescribed Ritalin for 

hyperactivity. His mother stopped giving it to him after a few

days because of its effect on him. Defendant’s father had little 

patience with defendant, and the parents separated when 

defendant was about 10 years old. His mother remarried, but

defendant disliked his stepfather. Defendant was caught

shoplifting and had increasing difficulties in school. Frustrated 

with the rules in his mother’s house, defendant moved in with 

his girlfriend at age 16. He became more distant and frustrated. 

Defendant’s younger siblings had no behavioral problems. Both 

were in college at the time of trial.

Defendant’s mother said she loved him and was

overwhelmed by the possibility he would receive the death 

penalty. Defendant’s brother said he loved him, too. Defendant 

often advised his brother to stay in school and not behave as he 

had. L.O. testified that defendant was drunk on the night he 

sexually assaulted her, and she no longer hated him for it. She 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

11

allowed him to see their three young children. They would be 

devastated if he were executed. 

Neuropsychologist Nell Riley testified. Defendant’s IQ 

was 77, which, while not indicating mental retardation, was “a 

very low score” correlating with subnormal intelligence. He had 

severe dyslexia, poor reading skills, attention deficit 

hyperactivity disorder (ADHD), and impaired executive 

functioning. Defendant’s prematurity and low birth weight put 

him at high risk for developmental disabilities. Such children 

often have lifelong challenges. They are frequently disruptive 

and have difficulty with others. Reading problems hamper their 

academic and work ability. Although Ritalin and other drugs 

can help, defendant did not have the benefit of these 

medications. Finally, Riley addressed an emotional outburst 

defendant made at the end of his mother’s testimony. (See post, 

at p. 12.) Defendant’s inability to control his emotions or 

behavior in this situation was typical for someone with his 

neurological deficits. 

Psychologist Gretchen White compiled a psychosocial 

history based on available records and interviews with

defendant and his family. Defendant faced “risk factors” at 

every developmental stage. He was negatively influenced by his 

prematurity and low birth weight, the young age of his mother, 

sickliness during early life, hyperactivity, his father’s extended 

absences, and marital strife. Infants with birth weights as low 

as defendant’s tend to display negative temperaments, ADHD, 

and low social competence. Defendant also suffered digestive 

problems and was hospitalized for anemia at seven months old. 

He suffered congestive heart failure and required a blood 

transfusion. At school, defendant demonstrated learning 

disabilities and low intelligence, which made him feel like a 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

12

failure. His world changed dramatically at age eight when his 

two siblings were born only a year apart. At age nine, he 

underwent two surgeries on his genitals but still had a 

deformity despite the attempt at correction. He was distressed 

by his parents’ divorce and a lack of paternal attention. 

Defendant did not see his father after age 12 or 13. He felt 

rejected and had trouble adjusting to the new family 

arrangement. As an adolescent, defendant had conflicts with 

his authoritarian stepfather. He transferred to a different high 

school and was humiliated by his placement in special education 

classes. All these risk factors led to an increasingly troubled life. 

3. Rebuttal

Sherriff’s deputies testified about defendant’s courtroom 

outburst. Defendant’s mother was crying when she left the 

witness stand. The judge called for a recess and jurors started

walking toward the jury room. Although the record is not clear, 

it appears the jurors were no longer present when the outburst 

began. Defendant began pounding on the counsel table with 

both fists, then stood and tried to lift the table. Three deputies 

grabbed him but were unable to subdue him. Additional 

deputies joined the struggle. One deputy was hit and thrown 

over the railing into the audience section. Another deputy 

struck defendant on the legs with a baton, to no avail. At one 

point, defendant grabbed a deputy by the hair and held her in a 

headlock. Ultimately, it took eight or nine deputies to restrain 

defendant, who was still struggling as he was carried out in 

handcuffs and leg irons. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

13

II. DISCUSSION

A. Pretrial Issues

1. Funds for Jury Consultant

Defense counsel filed multiple requests for section 987.98

funds to hire a jury consultant. The court denied his requests 

but ultimately authorized an even greater amount for the 

appointment of Keenan9counsel. Defendant argues the rulings

violated both state law and his rights to due process, equal 

protection, and a reliable penalty determination. There was no 

error.10

 

8 Section 987.9, subdivision (a) provides in relevant part: “In 

the trial of a capital case . . . the indigent defendant, through the 

defendant’s counsel, may request the court for funds for the 

specific payment of investigators, experts, and others for the 

preparation or presentation of the defense. . . . Upon receipt of 

an application, a judge of the court, other than the trial judge 

presiding over the case in question, shall rule on the 

reasonableness of the request and shall disburse an appropriate 

amount of money to the defendant’s attorney. . . . In making the 

ruling, the court shall be guided by the need to provide a 

complete and full defense for the defendant.”

9 Keenan v. Superior Court (1982) 31 Cal.3d 424, 430 

provides that section 987.9 funds may be used to appoint second 

defense counsel in a capital case. (See People v. Ochoa (1998) 19 

Cal.4th 353, 407-408.)

10

“With regard to this claim and virtually every other claim 

raised on appeal, defendant asserts that the error violated his 

rights to a fair trial and reliable penalty determination under 

the Fifth, Sixth, Eighth, and Fourteenth Amendments to the 

United States Constitution and corresponding provisions of the 

California Constitution. In most instances, defendant failed to 

make these constitutional arguments in the trial court. 

Nevertheless, unless otherwise indicated, we consider the 

merits of these newly raised arguments because either (1) the 

appellate claim is of a kind that required no objection to preserve 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

14

a. Background

Defense counsel first sought to retain Eda Gordon from 

New Mexico, who had assisted the Stanislaus County Public 

Defender’s Office in a previous murder case. The court denied 

this request, noting that defense counsel was “quite competent 

to select his own jury,” especially given that voir dire would be 

conducted largely by the judge. Counsel renewed his request in 

a supplemental declaration. He argued the district attorney had 

greater resources available for jury selection and funding a 

defense expert would ultimately save both money and time. 

After an ex parte hearing, the court again denied the request. 

The case was neither unusual nor complex. Defense counsel was 

“highly competent,” with “considerable experience in trying 

capital cases.” The court doubted whether retaining an expert 

would save costs because counsel would spend considerable time 

talking with the expert. Moreover, even assuming the district 

attorney had superior resources, the defense is not entitled to 

equivalency but only assistance that is reasonably necessary. 

Finally, the occasional approval of funds for a jury consultant 

did not suggest an expert was constitutionally required. The 

majority of murder cases are tried without one. 

 

it, or (2) the claim invokes no facts or legal standards different 

from those before the trial court, but merely asserts that an 

error had the additional legal consequence of violating the 

Constitution. [Citation.] In those circumstances, defendant’s 

new constitutional arguments are not forfeited on appeal. 

[Citations.] Where rejection of a claim of error on the merits 

necessarily leads to a rejection of the newly asserted 

constitutional objection, no separate constitutional analysis is 

required and we have provided none.” (People v. Virgil (2011) 

51 Cal.4th 1210, 1233-1234, fn. 4 (Virgil).)
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

15

Less than a week after this ruling, defense counsel 

requested a new hearing on the ground that defendant was not 

present at the previous hearing and had not waived his right to 

attend. Another ex parte hearing was held before a different 

judge. At this hearing, a deputy public defender testified about 

his use of jury consultant Gordon in a recent murder trial. The 

case involved an African-American defendant who murdered an 

Assyrian clerk during a late-night convenience store robbery, 

which was captured on videotape. Although the jury found that 

defendant guilty with special circumstances, it returned a 

verdict of life without possibility of parole. The public defender 

explained in detail how the consultant assisted him, both in jury 

selection and later stages of trial. Defendant’s counsel believed 

a jury consultant would be helpful because the community had 

become especially sensitive to violence committed by African 

Americans. The court concluded a jury consultant was not 

needed to ensure a fair trial and denied the requested funds. 

However, because defense counsel demonstrated a need for 

assistance in the jury selection process, the court invited him to 

submit a new application for a private investigator’s services. 

Defendant then sought $4,500 for investigative assistance 

during jury selection. The court granted $2,750 and specified

that only previously authorized defense investigators Joe 

Maxwell and Robert Wood could be retained. A month later, 

defense counsel advised the court that both of these 

investigators had refused the assignment. He now sought 

$7,000 to retain Karen Fleming, an Oakland consultant 

experienced in selecting capital juries. The request was denied. 

Counsel later renewed his request for investigative funds and 

asked that the court expand its authorization to include 

investigators other than Maxwell and Wood. The court denied
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

16

additional funds but permitted counsel to hire a different

investigator. 

Defendant later renewed his request for a jury consultant 

after learning that a second deputy district attorney would 

assist in jury selection and trial. At an ex parte hearing, Deputy 

District Attorney Birgit Fladagar testified that a second 

prosecutor had been assigned to try the case jointly with her. 

Both would take an active role in jury selection. Defense counsel 

asserted that he also required assistance in jury selection, 

although he was not seeking a second lawyer. Counsel said he

needed an expert’s help identifying jurors who would be 

receptive to defendant’s mitigation defense. The court once 

again denied the request, explaining it had never perceived a 

correlation between use of a jury consultant and a trial’s result. 

Shortly after the hearing, defense counsel requested $6,750 to 

expand the authorization of previously appointed Keenan

counsel to include assistance with jury selection.11 This request 

was granted in full. 

b. Discussion

Section 987.9 provides a mechanism for indigent capital 

defendants to seek funds for investigators, experts, and others 

whose assistance is needed to prepare or present a defense. In 

ruling on such a request, the court must consider the 

defendant’s “need to provide a complete and full defense.” 

(§ 987.9, subd. (a).) While the court should generally view a 

motion for assistance with “considerable liberality,” it should

also order the requested services only if the defendant 

 

11 The prior appointment extended only to discovery, 

research, and motion and writ preparation. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

17

demonstrates they are reasonably necessary. (People v. 

Gonzales and Soliz (2011) 52 Cal.4th 254, 286; People v. Guerra

(2006) 37 Cal.4th 1067, 1085.) The court here acted within its 

discretion. (See Gonzalez and Soliz, at p. 286.)

As defendant recognizes, we have previously upheld 

orders denying section 987.9 funds for a jury selection expert. 

(See People v. Box (2000) 23 Cal.4th 1153, 1182-1185 (Box); 

People v. Mattson (1990) 50 Cal.3d 826, 847-848 (Mattson).) The 

circumstances here are no more compelling. Mattson and Box

both involved the murder of a child, yet the potentially upsetting 

nature of those crimes did not demand the use of a jury 

consultant. This convenience store robbery murder was not so 

unusual or complex that it would be particularly difficult to find

impartial jurors. (See Mattson, at p. 848.) Although defense 

counsel argued he needed help identifying jurors who would be 

responsive to his mitigation case, it does not appear an expert 

was reasonably necessary to ensure a fair penalty trial. Defense 

counsel had extensive trial experience, which included death 

penalty cases, and was described by the court as highly 

competent. Experienced attorneys “ ‘are trained as well as 

anyone else to select juries.’ ” (Box, at p. 1184.) Defendant’s 

claim is not supported by Ake v. Oklahoma (1985) 470 U.S. 1087, 

which held that psychiatric assistance must be provided when 

an indigent defendant presents a plausible insanity defense. 

“Unlike psychiatric expertise, . . . a jury selection expert . . . 

would not offer any expertise not already available to counsel.” 

(Box, at p. 1185.)

Nor did the assertedly greater resources of the district 

attorney’s office require the court to fund a jury consultant for 

the defense. The prosecution did not employ such an expert. 

Once it became clear that two deputy district attorneys would 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

18

be trying the case, the court expanded defendant’s Keenan

counsel appointment to include jury selection. As a result, the 

court did authorize section 987.9 funding to assist counsel with 

jury selection. Defendant’s complaint is merely that the court 

funded a second lawyer for this purpose rather than one of his 

preferred experts. The decision fell within the court’s ample 

discretion. 

Finally, there was no equal protection violation. 

Defendant complains that if he had been represented by the 

public defender, that office could have hired a jury selection 

expert without obtaining court approval. Because his counsel 

was appointed from a panel of private attorneys, he had to apply 

for court funding. The premise of this claim is speculative. 

Although a public defender’s office can hire an expert from its 

own funds, its ability to obtain reimbursement for this expense 

is also measured by section 987.9. (See Gov. Code, § 15201; Cal. 

Code Regs., tit. 2, §§ 1025.1, 1025.3; 67 Ops.Cal.Atty.Gen. 310

(1984).) Despite minor differences in the process, indigent 

defendants represented by the public defender’s office have no 

greater access to state-sponsored jury consultants than those 

represented by private counsel. Both are entitled to state 

funding for a jury consultant only when such services “are 

reasonably necessary for the preparation or presentation of the 

defense.” (§ 987.9, subd. (a).)

2. Jury Selection

Defendant contends voir dire was impermissibly restricted 

and the trial court failed to excuse panelists who were biased in 

favor of the death penalty. To the extent these claims were not 

forfeited, they lack merit.
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

19

The jury selection process consisted of both group and 

individual voir dire. Prospective jurors completed a 39-page 

questionnaire and came to court in groups of 15 or 16. For each 

group, the court read general instructions explaining the nature 

of the case, including the possibility of a penalty phase trial, and 

conducted a groupwide inquiry touching generally on bias and 

prejudice. Panelists were then questioned individually about 

their death penalty views. (See Hovey v. Superior Court (1980) 

28 Cal.3d 1 (Hovey).) The court advised counsel in advance that 

it intended to ask each juror a specific set of questions to 

evaluate their qualification to serve under Wainwright v. Witt

(1985) 469 U.S. 412, 424 (Witt). Both defense counsel and the 

prosecutor were given an opportunity to question each panelist 

during the sequestered voir dire. Jury selection proceeded over 

nine court days and comprises five volumes of transcript. At the 

conclusion of this process, defendant used 14 of his 20 

peremptory challenges and did not express dissatisfaction with 

the jury selected.

a. Adequacy of Voir Dire

Defendant makes several arguments concerning the 

adequacy of voir dire. He first asserts the court unfairly 

restricted voir dire because it curtailed questioning from defense 

counsel. The record is to the contrary. Defense counsel had an 

opportunity to question each prospective juror, sometimes at 

considerable length, during the sequestered voir dire. Counsel 

frequently used this questioning to probe panelists’ assurances 

that they could be fair and to lay the groundwork for cause 

challenges. The court initially became frustrated with the 

length of this questioning and perceived that defense counsel 

was “putting words in” prospective jurors’ mouths. It announced 

that attorneys would question the panelists first, followed by 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

20

court questioning, after which no further questioning would be 

permitted. Immediately after this decision, however, the court 

allowed defense counsel to ask follow-up questions of the next 

panelist. The court quickly reverted to its original pattern of 

questioning the jurors first and then allowing questions from 

counsel.

Defendant did not object to the adequacy of voir dire (see 

People v. Foster (2010) 50 Cal.4th 1301, 1324 (Foster)), nor does 

he identify any specific questions he was precluded from asking 

(see People v. Vieira (2005) 35 Cal.4th 264, 287). Assuming his 

claim of error was not forfeited (see People v. Taylor (2010) 48 

Cal.4th 574, 608), it lacks merit. Although the court sometimes 

told defense counsel to limit or wrap up his questioning, any

restrictions on voir dire were reasonable. We have repeatedly 

observed that the trial court has “ ‘considerable discretion . . . to 

contain voir dire within reasonable limits.’ ” (People v. Jenkins

(2000) 22 Cal.4th 900, 990; see People v. Williams (2006) 40 

Cal.4th 287, 307.) This discretion extends to death qualification.

(People v. Butler (2009) 46 Cal.4th 847, 859.) The court may

limit attorney questioning as appropriate (People v. Robinson

(2005) 37 Cal.4th 592, 614), and, indeed, “has a duty to restrict 

voir dire within reasonable bounds to expedite the trial.” (People 

v. Avila (2006) 38 Cal.4th 491, 536, italics added.) Defendant’s 

attorney had wide latitude to explore prospective jurors’ biases. 

(Hovey, supra, 28 Cal.3d at p. 80; see Mattson, supra, 50 Cal.3d 

at p. 847.) He had an opportunity to question each prospective 

juror and typically did so. The mild limitations placed on 

counsel’s questioning did not deprive defendant of an impartial 

jury.

Nor is there merit to defendant’s related claim that the 

court impermissibly “chilled” defense counsel’s advocacy by 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

21

threatening to end the Hovey voir dire. The first prospective 

juror called in for sequestered voir dire strongly supported the 

death penalty but clearly told the court he could keep an open 

mind and base his verdict on the evidence presented. Defense 

counsel asked several leading questions that attempted to 

portray the juror as unqualified to serve. The court expressed 

exasperation with this tactic and suggested counsel was abusing 

the voir dire process. If counsel continued to question jurors in 

this manner, the court said it would end the sequestered 

questioning and bring all panelists into court for group voir dire. 

Later that day, the court again expressed frustration at defense 

counsel’s attempts to paint jurors as disqualified after they had 

promised to keep an open mind on penalty. Noting that defense 

counsel was “taking too long with each juror,” the court proposed 

to avoid the problem by switching to group voir dire with the 

next panel. The court never did change the process, however, 

and individual, sequestered questioning continued until the 

conclusion of voir dire.

There was no discernable reduction in the extent of voir 

dire. “We have repeatedly held that ‘there is no federal 

constitutional requirement that a trial court conduct 

individualized, sequestered voir dire in a capital case.’ ” (People 

v. Jackson (2016) 1 Cal.5th 269, 357.) In any event, considered 

in context, the court’s statements about switching to group voir 

dire were mere expressions of frustration, and the court took no 

steps to change the process for later panels. Nor does defendant 

demonstrate that the statements impermissibly “chilled” his 

attorney’s advocacy. Defendant now theorizes that counsel 

could have pursued other lines of inquiry with some seated 

jurors. The assertion is not persuasive. All attorneys have to 

make choices about the areas explored and the time devoted to 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

22

the process. Nor is a “chilling” effect evident from counsel’s 

failure to ask probing questions of jurors that the defense might

have found favorable for other reasons. Despite questionnaire 

responses defendant now claims were problematic, his attorney

chose not to peremptorily challenge any of the jurors whose 

questioning defendant now claims was inadequate. The trial 

court’s manner of conducting voir dire is not reversible unless it 

is clear the resulting trial was rendered fundamentally unfair. 

(People v. Carter (2005) 36 Cal.4th 1215, 1250.) No such 

showing has been made here.

Defendant also complains the court “did not engage in a 

bona fide” assessment of jurors’ qualification to serve but found 

them qualified so long as they paid “lip service to neutrality” in 

responding to a series of rote, leading questions under Witt. 

Trial courts are obligated to make a conscientious effort to 

determine prospective jurors’ views on capital punishment to 

ensure qualification to serve. (People v. Wilson (2008) 44 Cal.4th 

758, 779.) However, the court does not necessarily shirk this 

obligation because it asks uniform questions that track

appropriate qualification concerns. Indeed, we have previously

“advised trial judges to ‘closely follow the language and formulae 

for voir dire recommended by the Judicial Council . . . to ensure 

that all appropriate areas of inquiry are covered in an 

appropriate manner.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 

538 (Bolden).)

In People v. Leon (2015) 61 Cal.4th 569, 588-589 (Leon), 

the entire voir dire of nearly every potential juror consisted of 

four questions addressing the Witt death-qualification 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

23

standard.12 The court rarely asked follow-up questions and 

permitted no attorney inquiry. (Leon, at p. 589.) Although we 

chastised this parsimonious approach, we concluded the voir 

dire was not so inadequate as to render the trial unfair. (Ibid.) 

Here, the voir dire was far more expansive. The court 

questioned each prospective juror in accordance with the Witt

standard and frequently asked additional questions. It gave 

both attorneys an opportunity to inquire further and explore 

other areas of concern. Defendant complains the court gave 

undue weight to favorable responses to the Witt questions, but 

the court was entitled to accept jurors’ assurances that they 

could set aside personal feelings and judge the case fairly. This

is the heart of the death-qualification inquiry. (See Leon, at 

pp. 591-592; Lockhart v. McCree (1986) 476 U.S. 162, 176.) 

When jurors admitted they could not set aside their biases, 

 

12 The questions were: “(1) ‘Do you have such conscientious 

objections to the death penalty that, regardless of the evidence 

in this case, you would refuse to vote for murder in the first 

degree merely to avoid reaching the death penalty issue?’ (2) ‘Do 

you have such conscientious objections to the death penalty that, 

regardless of the evidence in this case, you would automatically 

vote for a verdict of not true as to any special circumstance 

charged merely to avoid the death penalty issue?’ (3) ‘Do you 

have such conscientious objections to the death penalty that, 

should we get to the penalty phase of this trial, and regardless 

of the evidence in this case, you would automatically vote for a 

verdict of life imprisonment without the possibility of parole and 

never vote for a verdict of death?’ (4) ‘Do you have such 

conscientious opinions regarding the death penalty that, should 

we get to the penalty phase of this trial, and regardless of the 

evidence in this case, you would automatically, and in every 

case, vote for a verdict of death and never vote for a verdict of 

life imprisonment without the possibility of parole?’ ” (Leon, 

supra, 61 Cal.4th at pp. 588-589.)
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

24

either for or against the death penalty, the court properly 

excused them for cause. Moreover, to the extent defendant 

argues overreliance on the Witt questioning led the court to

erroneously deny cause challenges and seat biased jurors, he 

forfeited this claim by failing to exhaust his peremptory 

challenges or express dissatisfaction with the jury. (See post, at 

p. 25.)

Nor is there merit to defendant’s complaint that the court 

unfairly rehabilitated biased jurors with leading questions that 

signaled an “ ‘appropriate’ ” response. We recently rejected the 

same claim in People v. Jackson, supra, 1 Cal.5th at pages 358-

359, explaining that “ ‘[t]he possibility that prospective jurors 

may have been answering questions in a manner they believed 

the trial court wanted to hear identifies at most potential, rather 

than actual, bias and is not a basis for reversing a judgment.’ ” 

“Nor does the court’s occasional use of leading questions when 

attempting to rehabilitate ‘death-leaning’ jurors suggest a lack 

of impartiality.” (People v. Mills (2010) 48 Cal.4th 158, 190.) 

Here, the court posed rehabilitative questions to all prospective 

jurors who expressed opinions on the death penalty, including 

those who strongly opposed it. This questioning was neither

unfair nor improper.

b. Denial of Cause Challenges

Defendant claims the court erroneously refused to dismiss 

seven prospective jurors based on their death penalty views. 

(Witt, supra, 469 U.S. at p. 424.) He also contends another juror 

would have been incapable of judging the case impartially

because the juror’s wife received dialysis treatments from the 

murder victim’s wife. He argues deferential review is improper 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

25

because the court was motivated simply to expedite voir dire, 

rather than ascertain jurors’ true qualifications. 

“Defendant’s failure to exhaust his peremptory challenges 

or to express dissatisfaction with the jury as selected forfeits 

[these claims] on appeal.” (People v. Davis (2009) 46 Cal.4th 

539, 582; see People v. Mickel (2016) 2 Cal.5th 181, 216.) 

“Moreover, whatever the scope may be of the trial court’s power 

or duty to excuse biased jurors sua sponte, any failure to do so 

does not ‘excuse defendant’s failure to preserve this issue for 

review.’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 487.) Nor 

can defendant establish prejudice. None of the prospective 

jurors in question served on his jury. (See Davis, at p. 582.) 

Defendant excused six of the eight with peremptory challenges,

and a seventh was never called into the jury box. The eighth

was seated as an alternate but did not deliberate in either phase 

of trial. Where no challenged panelist actually served on 

defendant’s jury, “ ‘there is no basis for us to conclude that the 

jury empanelled was anything but impartial.’ ” (Davis, at 

p. 582; see Hillhouse, at pp. 487-488.)

3. Claims Related to Codefense Counsel’s Later

Employment with District Attorney

When a juvenile delinquency petition was filed against 

Tory T. in connection with the Quik Stop robbery, the court 

appointed the private law firm of Perry and Wildman. Attorney 

Alan Cassidy had primary responsibility for the case and 

represented Tory when he entered into a written plea agreement 

with the prosecution. Tory promised to testify against 

defendant and plead to a reduced charge in exchange for the 

prosecution’s recommendation that he be released from custody 

and placed on probation. The next day, Tory testified at a

preliminary hearing. During the months Cassidy represented 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

26

Tory, Cassidy had applied for and ultimately accepted an offer 

of employment with the Stanislaus County District Attorney’s 

Office. Almost two weeks after Tory entered the plea agreement 

and testified at defendant’s preliminary hearing, Cassidy 

started work at the district attorney’s office. 

Based on these facts, defendant filed a pretrial motion 

seeking recusal of the entire district attorney’s office and 

disclosure of all communications between Tory and Cassidy. In 

the alternative, he argued Tory should be precluded from 

testifying at trial. Cassidy and the head of his former firm 

testified at a hearing on the motion. Both claimed the attorneyclient privilege as to communications with Tory and the contents 

of his case file. Cassidy testified that the plea negotiations for 

Tory began early in the case and “had been pretty much 

finalized” well before Cassidy became aware of the opening at 

the district attorney’s office. He stated that the possibility of 

this employment did not change his negotiations for Tory, and 

he acted at all times in Tory’s best interest. Once at the district 

attorney’s office, in accordance with its conflicts policy, Cassidy 

took no part in discussions about any cases handled by his 

former firm. Cassidy had no supervisorial role in the 

prosecutor’s office. 

The court refused to order production of Tory’s case file 

because it contained privileged documents and defendant 

presented no ground for invading the privilege. The court also 

denied the motions to recuse the district attorney’s office or 

preclude Tory from testifying. The district attorney’s office and 

Cassidy had taken appropriate steps to prevent Cassidy’s 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

27

involvement in the case, and the court found nothing to suggest 

interference with defendant’s right to a fair trial.13

a. Discovery Motion 

Defendant contends his rights to confrontation, 

compulsory process, and due process were violated by the denial 

of discovery into Tory’s discussions with his former attorney. 

We have previously rejected similar claims and do so again.

The attorney-client privilege, one of the oldest recognized,

allows a client to refuse to disclose, and to prevent others from 

disclosing, confidential communications with an attorney. 

(Evid. Code, § 954.) The “fundamental purpose behind the 

privilege is to safeguard the confidential relationship between 

clients and their attorneys so as to promote full and open 

discussion of the facts and tactics surrounding individual legal 

matters.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.) 

The privilege is absolute (Costco Wholesale Corp. v. Superior 

Court (2009) 47 Cal.4th 725, 732 (Costco)) and can take 

precedence even over a criminal defendant’s trial rights. Thus, 

 

13 This hearing, very early in defendant’s case, featured the 

first of his courtroom outbursts. (Another is described post, at 

page 61, footnote 17.) When the court was announcing its 

ruling, defendant interrupted:

“THE COURT: . . . And it appears to me that he would get 

a fair trial.

“THE DEFENDANT: Bull shit.

“[DEFENSE COUNSEL]: Hey, that’s enough.

“THE DEFENDANT: I don’t get no fair trial, man.

“THE COURT: You haven’t even had your trial yet, Mr. 

Bell.

“[DEFENSE COUNSEL, apparently speaking to 

defendant]: That’s okay. That’s enough. This is not helping.”
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

28

it is settled that “a criminal defendant’s right to due process does 

not entitle him to invade the attorney-client privilege of 

another.” (People v. Gurule (2002) 28 Cal.4th 557, 594; see 

People v. Johnson (1989) 47 Cal.3d 1194, 1228 (Johnson).) Nor 

does the withholding of material protected by the attorney-client 

privilege violate a criminal defendant’s right to confrontation. 

(Gurule, at p. 594; see Pennsylvania v. Ritchie (1987) 480 U.S. 

39, 54.)

Similar facts arose in Littlefield v. Superior Court (1982) 

136 Cal.App.3d 477. Two individuals were charged with a series 

of murders, but one pleaded guilty with a promise to testify

against the other. (Id. at pp. 480-481.) The remaining 

defendant sought to discover conversations between that 

individual and his public defender, arguing he needed these 

confidential communications to impeach this crucial witness 

against him. (Id. at pp. 481-482.) The Court of Appeal observed 

that the attorney-client privilege continues even after the 

relationship has ended, and that bolstering an attack on a 

witness’s credibility was not a valid reason to invade the 

privilege. (Id. at pp. 482-483.) Johnson, supra, 47 Cal.3d at 

page 1228 adopted Littlefield’s reasoning against a similar 

challenge. As in those cases, defendant here was able to crossexamine Tory about the plea bargain and Tory’s motivation for 

testifying. He was not entitled to obtain absolutely privileged 

communications between Tory and his attorney merely to 

bolster this attack. (See Johnson, at p. 1228; Littlefield, at 

p. 482.)

Nor is there merit to defendant’s argument that the trial 

court should have held an in camera hearing to balance his 

constitutional rights against the confidentiality interests of Tory 

and his attorney. With few exceptions, none of which apply 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

29

here, the court may not require disclosure in order to rule on a 

privilege claim. (Evid. Code, § 915, subd. (a); Costco, supra, 47 

Cal.4th at pp. 736-739.) To support a contrary position, 

defendant cites a dissenting opinion positing that in camera 

review and a balancing of interests might be appropriate to 

avoid “[e]xtreme injustice” when “a criminal defendant seeks 

disclosure of a deceased client’s confession to the offense.” 

(Swidler & Berlin v. United States (1998) 524 U.S. 399, 413 (dis. 

opn. of O’Connor, J.).) Justice O’Connor’s concerns about 

preventing injustice after a client’s death simply do not apply 

here. Tory was both alive and subject to cross-examination. The 

trial court correctly denied defendant’s request and was not 

required to conduct an in camera hearing before doing so.

b. Motion to Recuse District Attorney’s

Office

Defendant’s recusal motion was properly denied. A 

motion to recuse the district attorney “may not be granted 

unless the evidence shows that a conflict of interest exists that 

would render it unlikely that the defendant would receive a fair 

trial.” (§ 1424, subd. (a)(1).) “The statute ‘articulates a two-part 

test: “(i) is there a conflict of interest?; and (ii) is the conflict so 

severe as to disqualify the district attorney from acting?” ’ ” 

(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711

(Haraguchi).) A “conflict” exists, under section 1424’s first 

prong, whenever there is “ ‘a reasonable possibility that the DA’s 

office may not exercise its discretionary function in an 

evenhanded manner.’ ” (People v. Eubanks (1996) 14 Cal.4th 

580, 592 (Eubanks).) But recusal is not required unless, under 

the second prong, the possibility of unfair treatment “is so great 

that it is more likely than not the defendant will be treated 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

30

unfairly during some portion of the criminal proceedings.” 

(Haraguchi, at p. 713.)

The trial court’s decision on a motion to recuse the 

prosecutor is reviewed for abuse of discretion (Haraguchi, supra, 

43 Cal.4th at p. 711), “even in capital cases” (Hollywood v. 

Superior Court (2008) 43 Cal.4th 721, 728). The trial court’s 

factual findings are reviewed for substantial evidence, and its 

application of the law will be reversed only if arbitrary and 

capricious. (Haraguchi, at pp. 711-712; People v. Vasquez (2006) 

39 Cal.4th 47, 56.)

Defendant fails to show an abuse of discretion. Cassidy 

negotiated a plea bargain that served the best interests of his 

client. The terms of this agreement were discussed “well before” 

Cassidy applied for employment with the district attorney. The 

agreement was finalized before he started work there. Cassidy 

did not participate in any way in this case. His only 

conversations about the matter concerned scheduling his own 

appearance to testify at the recusal hearing. Drawing in part 

on cases from the civil context, defendant complains the district 

attorney’s “ ‘ethical screen’ ” was inadequate because the office 

employed few attorneys and Cassidy’s work area was located 

near those of defendant’s prosecutors. The court credited

Cassidy’s sworn testimony that he took no part in any case 

discussions. Defendant offers nothing to the contrary beyond 

speculation. Even assuming the circumstances gave rise to a 

conflict, recusal was appropriate only if defendant could show a 

“real, not merely apparent,” potential for prejudice. (Eubanks, 

supra, 14 Cal.4th at p. 592.) Because defendant failed to show 

an actual likelihood that he would receive unfair treatment as a 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

31

result of Cassidy’s employment (see ibid.), the court properly 

denied the recusal motion.14

B. Guilt Phase Issues

1. Alleged Confrontation Errors

Defendant claims his constitutional rights to 

confrontation and effective cross-examination were violated 

three times during the guilt phase. To the extent the claims are 

not forfeited, there was no prejudicial error.

a. Admission of Deceased Codefendant’s

Statements

At the close of his guilt phase evidence, defendant called 

Detective Olson for additional questioning about the 

investigation. Among other things, defendant asked about the 

forensic testing done on a “possible bloodstain sample” taken 

from the Chevy Beretta’s passenger door frame. Olson said he 

sent the sample to the Department of Justice for testing but 

never received the results. On cross-examination, Olson 

testified that there was little blood at the crime scene and no 

reason to believe a substance found on the car “at some point 

later on” would be blood. The following colloquy ensued:

 

14 Defendant also contends section 1424 violates equal 

protection because it applies more relaxed ethical standards to 

conflicts arising in criminal prosecutions than in civil cases. 

Because he failed to raise this challenge below it is forfeited, as 

are his derivative claims that section 1424 violates due process 

and the right to a reliable penalty judgment. (See People v. 

Alexander (2010) 49 Cal.4th 846, 880, fn. 14.) 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

32

“Q: Did you also receive information from [Roseada

T.]

[15] that things were done to that car subsequent or after 

the killing?

“A: That’s correct.

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

“A: She said it was washed, yes.

“Q: At a professional car wash?

“A: I don’t recall if she said professional. What I recall 

— at least the portion I recall is that she went out the next 

morning and washed down the interior of the car herself. 

That’s what I recall.

“Q: Did she also talk about washing the exterior of the 

car, if you remember?

“A: I recall something about the exterior, but I don’t 

know if she did it or a professional did it.”

Defense counsel did not object to this testimony. During a 

recess, however, he complained that the prosecutor had elicited 

statements made by a codefendant in violation of People v. 

Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 

391 U.S. 123. Counsel said he had not objected at the time 

because he “didn’t think that was the appropriate thing to do in 

terms of trial strategy,” but he argued the testimony was 

material and grounds for a mistrial. 

The court denied the motion. First, defendant failed to 

object, even though he had an opportunity to do so. Any problem 

could have been cured at that time. Second, defendant had 

opened the door to this evidence by questioning Detective Olson 

 

15 As noted, Roseada died of natural causes before trial. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

33

about the failure to test possible blood found on the car, and the 

prosecution had a right to follow up and explain why testing 

would have been futile. The court invited defendant to submit 

an appropriate limiting instruction, but no such instruction was 

sought or given.

Although he asserted Aranda/Bruton error below,

defendant now concedes the rule “has no application where, as 

here, the defendant and the codefendant whose incriminating 

extrajudicial statements are offered . . . are not jointly tried.” 

(See People v. Brown (2003) 31 Cal.4th 518, 537 (Brown).) In 

any event, Roseada’s statements about washing the car were not 

“ ‘facially incriminating’ of defendant and so would not run afoul 

of the rule.” (Id. at p. 537, fn. 5; see Richardson v. Marsh (1987) 

481 U.S. 200, 207.) Defendant now complains the admission of 

Roseada’s statements about washing the car violated his 

confrontation rights under Crawford v. Washington (2004) 541 

U.S. 36 (Crawford). Assuming this claim was not forfeited by 

defendant’s failure to make a timely hearsay objection at trial 

(see Evid. Code, § 353), it also lacks merit.

Detective Olson related an out-of-court statement from 

Roseada, but the statement was admissible, regardless of its 

truth, to show its effect on Olson. It tended to explain why Olson 

had not pursued forensic testing of the possible blood stain 

found on Roseada’s car. “ ‘ “[E]vidence of a declarant’s 

statement that is offered to prove that the statement imparted 

certain information to the hearer and that the hearer, believing 

such information to be true, acted in conformity with that belief 

. . . is not hearsay, since it is the hearer’s reaction to the 

statement that is the relevant fact sought to be proved, not the 

truth of the matter asserted in the statement.” ’ ” (People v. 

Livingston (2012) 53 Cal.4th 1145, 1162.) “Out-of-court 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

34

statements that are not offered for their truth are not hearsay 

under California law [citations], nor do they run afoul of the 

confrontation clause.” (People v. Ervine (2009) 47 Cal.4th 745, 

775-776 (Ervine).) Moreover, as the trial court observed, the 

defense opened the door by questioning Olson about his failure 

to test for blood on the car. Defendant’s questioning insinuated 

that the investigation was sloppy, and Roseada’s statement was 

admissible to rebut that suggestion. Accordingly, there was no

confrontation clause violation. Although a limiting instruction 

was not given, defendant is in no position to complain. He failed 

to make a hearsay objection and, despite the court’s invitation, 

failed to propose a limiting instruction.

b. Testimony Regarding Citizen

Informant’s Identification

Defendant’s probation officer, Michael Moore, testified at 

the preliminary hearing that he called the Turlock Police 

Department after he recognized a newspaper photograph 

related to the Quik Stop murder. Moore was shown the 

surveillance tape and still images from the video. He told police

that the shooter’s posture, gait, and voice all resembled 

defendant. Defendant moved to exclude Moore’s testimony from 

trial, arguing it would be irrelevant and unduly prejudicial. The 

court denied the motion, with the prosecution’s assurance that 

the jury would not learn defendant was on probation. 

Before Moore was called to testify, he informed the 

prosecutor that he recognized one of the seated jurors. The juror 

was an acquaintance who might know Moore’s occupation. 

Defendant refused to agree to a stipulation in lieu of Moore’s live 

testimony, and the prosecution decided not to risk a mistrial by

calling Moore as a witness.
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

35

Later, defendant called Detective Olson and questioned 

him about the surveillance video. When asked why he had 

watched the video on one occasion, Olson replied, without 

naming Moore, that he “had a person that wanted to look at it.” 

Defense counsel asked if Olson had “discussions with anyone 

about the height and weight of [the] perpetrator . . . after 

watching the videotape.” Olson responded that he and the 

unnamed person had such a discussion while they watched the 

tape together, and this discussion informed his opinion about 

the suspect’s appearance. On cross-examination, the prosecutor 

sought to flesh out this testimony. He requested permission to 

ask about information Olson had received from a citizen 

informant, promising not to name Moore or his occupation. The 

court remarked that the defense had “opened the door” and

allowed the questioning. 

The prosecutor elicited testimony that, the day after the 

crime, Olson met with a citizen informant who knew defendant. 

Olson showed this person the surveillance videotape and 

photographs and played an audiotape from the crime. The 

prosecutor then asked what the person said about how the 

photograph looked in relation to defendant. Before Olson could 

answer, the court interrupted and excused the jury. During the 

ensuing colloquy, defense counsel objected to the questioning on 

foundation and hearsay grounds and continued to dispute that 

his questions had opened the door for testimony about Olson’s 

discussion with Moore. The prosecutor argued that Moore’s 

statements identifying defendant as the person in the videotape 

could be admitted for the nonhearsay purpose of establishing 

why Olson proceeded as he did with the investigation. Although 

the court did not accept this argument, it allowed the prosecutor 

to elicit evidence of what Olson did after talking to the citizen 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

36

informant. Defense counsel did not object to this resolution. 

Back on the stand, the prosecutor asked Olson what he did 

“based on” watching the surveillance tape with the citizen 

informant. Olson replied, “I set up an appointment to meet with 

Michael Bell.” 

Defendant now complains “the identification statements 

of Michael Moore [related] through the testimony of Detective 

Olson” were hearsay, admitted in violation of due process and 

the confrontation clause. (See Crawford, supra, 541 U.S. 36.)

Although Olson did not relate a hearsay statement attributable 

to Moore, defendant argues the informant’s identification of him

was obvious to jurors. Citing various federal appellate 

decisions, he argues Crawford extends to “testimony 

communicating the substance of an absent declarant’s 

statements . . . even when there is no verbatim account of the 

declarant’s testimonial hearsay.” (See Ocampo v. Vail (9th Cir. 

2011) 649 F.3d 1098, 1110; Ryan v. Miller (2d Cir. 2002) 303 

F.3d 231, 250-251.)

Assuming without deciding that the claim was preserved, 

and a legitimate application of the hearsay rule, any error in the 

admission of Olson’s testimony was harmless beyond a 

reasonable doubt. (See Chapman v. California (1967) 386 U.S. 

18.) An implied identification from an unidentified citizen 

informant was not significant given the considerable direct and 

circumstantial evidence placing defendant at the crime scene. 

Neither side mentioned it during closing argument. Defendant’s 

claim that Tory committed the crime was comparatively quite 

weak. The defense was itself based primarily on hearsay and 

did not account for the significant disparity in the two men’s 

statures. Defendant was close to 6 feet, 5 inches tall and 260 

pounds, while Tory was only 5 feet, 10 inches, and 135 pounds. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

37

Finally, the jury viewed the tape repeatedly. They saw Tory 

testify and saw defendant daily. They were able to form their 

own opinions about whether defendant was the person in the 

surveillance tape.

c. Witness Who Invoked Privilege Against

Self-incrimination

Before trial, defense counsel learned that prosecution 

witness Debra Ochoa was on felony probation or parole and 

would claim her Fifth Amendment privilege against selfincrimination if asked questions about gun possession or 

ownership. The prosecution hoped to show that the murder 

weapon was sold to Ochoa, who gave it to defendant. Defense 

counsel said he would not object to the prosecutor establishing 

Ochoa’s possession of the gun through other witnesses but 

opposed mention of her expected testimony during opening 

statements. The prosecutor agreed, and the topic was not 

mentioned in openings. 

During the prosecution’s case-in-chief, Los Angeles 

resident Phillip Campbell testified that he sold a .357 Smith & 

Wesson revolver to Nick Feder in 1995. Feder testified that he 

purchased the gun from Campbell and four or five months later 

sold it to his friend Debra Ochoa. Feder said the murder weapon 

recovered by the police looked just like the gun he sold Ochoa. 

Before Ochoa’s testimony, the court held a hearing outside 

the jury’s presence. In response to the prosecutor’s questions, 

Ochoa said defendant had been her friend for approximately 14 

years and had worked for her on many occasions. When defense 

counsel asked if she ever gave defendant a handgun, Ochoa 

invoked her Fifth Amendment privilege. Arguing Ochoa’s 

invocation prevented an effective cross-examination, defendant
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

38

moved to exclude her testimony and strike the testimony of 

Feder and Campbell. The prosecutor responded that any crossexamination about the gun would be outside the scope of her 

direct, which would be limited to questions about Ochoa’s 

relationship with defendant. The court permitted the 

prosecution to call Ochoa but ruled neither party could ask her 

questions that would elicit an invocation of the privilege. In the 

jury’s presence, Ochoa testified that she had known defendant 

for approximately 14 years. Defendant did not cross-examine. 

Defendant now complains the court violated his 

confrontation rights by allowing Ochoa to testify because her

anticipated claim of privilege prevented him from crossexamining her about the gun. Prosecution witnesses traced the 

gun to Ochoa before the crime. After the crime, witnesses 

described receiving the gun from defendant. Defendant argues 

his inability to cross-examine Ochoa was prejudicial because he 

could not combat the prosecution’s inference, advanced in both 

guilt and penalty phase closing arguments, that Ochoa had 

given defendant the murder weapon. The claim lacks merit.

The trial court properly explored Ochoa’s claim of privilege 

and instructed the parties not to ask questions that would 

prompt its invocation. (See Evid. Code, § 913, subd. (a); People 

v. Frierson (1991) 53 Cal.3d 730, 743.) The constitutional 

concern raised by a witness’s assertion of the Fifth Amendment 

is that the witness cannot be cross-examined about the 

testimony that elicited the claim. (See People v. Douglas (1990) 

50 Cal.3d 468, 508.) There was no Sixth Amendment violation 

here because the trial court’s ruling prevented Ochoa from 

providing any testimony that would have evaded crossexamination. The prosecution properly asked about Ochoa’s 

relationship with defendant, which was relevant. Defendant 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

39

was free to cross-examine her on that subject. If defendant 

wished to dispel the inference that Ochoa gave him Feder’s gun, 

he could have asked whether she saw defendant during his trip 

to Los Angeles, or generally how they spent that time together. 

Defendant was not precluded from eliciting facts about their 

friendship that might have cut against the inference that Ochoa 

gave him a weapon.

It also bears noting that any hindrance of defendant’s 

cross-examination resulted from Ochoa and was not 

attributable to the People or the court. Her “attorney’s decisions 

regarding the best means to defend her, including the advice to 

invoke the privilege against self-incrimination, may not have 

been consistent with defendant’s interest, but they do not 

establish prosecutorial manipulation or any other impropriety.” 

(People v. Mincey (1992) 2 Cal.4th 408, 442, fn. 7 (Mincey).) To 

the extent defendant contends the prosecution should not have 

been allowed to call Ochoa without granting her immunity, he 

did not request this remedy below. Although defendant now 

speculates that Ochoa could have given the gun to someone else, 

he also risked the possibility that her testimony would be quite 

damaging. “[T]he Confrontation Clause guarantees an 

opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever 

extent, the defense might wish.” (Delaware v. Fensterer (1985) 

474 U.S. 15, 20.) The prosecution was not required to grant

unsolicited immunity or forgo calling a relevant witness under 

these circumstances.

2. Admission of Surveillance Videotape

Before trial, defendant moved under Evidence Code 

section 352 to exclude the audio from the crime scene 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

40

surveillance video. He argued the victim’s noises after being 

shot were “extremely prejudicial” and not probative. After 

listening to the tape, the court disagreed, noting that the tape 

was probative to show what happened during the offense. 

Moreover, the tape captured the sound of two gunshots outside, 

which corroborated the account of the truck driver who said he 

was shot at by someone who had just come out of the store. The 

court took the matter under submission but was inclined to find 

that the audiotape’s probative value outweighed any prejudice. 

The record does not include a ruling on defendant’s motion. 

However, in later proceedings the attorneys repeatedly observed

that approximately two minutes of footage containing the 

victim’s dying sounds had been edited out of the videotape 

shown during the guilt phase.

The prosecution played the videotape with two guilt-phase 

witnesses. During the testimony of store owner Henry 

Benjamin, the prosecutor played footage that simultaneously 

displayed images from four surveillance cameras. She then 

showed footage of the crime captured by two additional cameras. 

A later portion of the videotape was shown during the testimony 

of customer Richard Faughn, who had found the clerk and called 

911. The prosecutor played footage starting when Faughn 

entered the store and ending when responding officers arrived 

at the scene. The video was also played during the prosecution’s 

guilt phase closing argument. 

Defendant’s opening brief on appeal contends the trial 

court erred by allowing the prosecutor to repeatedly play sounds 

of the victim dying during the guilt phase of trial. However, 

apart from his response immediately upon being shot, the 

victim’s sounds were redacted from the video shown in the guilt 

phase. Defendant’s own trial attorney observed that the court 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

41

had “limited the playing of the [tape] to the video only without 

the sounds.” Accordingly, defendant’s claim is at variance with 

the record. To the extent defendant now argues the court erred 

in allowing video images of the crime to be shown multiple 

times, the claim has been forfeited. Defense counsel specifically 

told the court, “I’m not objecting to the tape or any portion of the 

tape except the small portion that records the victim’s dying.” 

The court addressed that issue by having the sounds removed. 

Defense counsel questioned the wisdom of showing the crime

from multiple camera angles after the video proved to be 

upsetting to the victim’s family members who attended the trial. 

But he did not raise an objection. In any event, there was no 

error. The videotape was highly probative evidence of how the 

crime was committed. Further, because the victim was shot 

while lying behind a counter, images of the victim sustaining the 

wounds were not presented.

During the penalty phase, the prosecutor sought to play 

the entire surveillance tape, including the two minutes after the 

shooting that had been redacted in the guilt phase. Over 

defense counsel’s objection that sounds of the victim dying were 

“inflammatory,” the court observed that a murder victim’s last 

moments are relevant at the penalty stage. The court admitted

the entire tape, and the prosecutor played it during her closing 

argument. Defendant claims the court erred because the record 

does not affirmatively establish that the court weighed the 

tape’s relevance against the potential for undue prejudice. (See 

Evid. Code, § 352.) He argues the prejudicial effect of the 

victim’s dying noises was “compounded” by statements in the 

prosecutor’s closing argument imagining what the victim’s last 

thoughts might have been. Defendant did not object to these 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

42

statements in the prosecutor’s closing argument, and his appeal 

does not claim the argument was improper.

The court has discretion to exclude evidence under 

Evidence Code section 352 “if its probative value is substantially 

outweighed by the probability that its admission will 

(a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, 

or of misleading the jury.” “ ‘ “Prejudice” as contemplated by 

[Evidence Code] section 352 is not so sweeping as to include any 

evidence the opponent finds inconvenient. Evidence is not 

prejudicial, as that term is used in a section 352 context, merely 

because it undermines the opponent’s position or shores up that 

of the proponent. The ability to do so is what makes evidence 

relevant. The code speaks in terms of undue prejudice. Unless 

the dangers of undue prejudice, confusion, or time consumption 

“ ‘substantially outweigh’ ” the probative value of relevant 

evidence, a section 352 objection should fail. [Citation.] . . . The 

prejudice that section 352 “ ‘is designed to avoid is not the 

prejudice or damage to a defense that naturally flows from 

relevant, highly probative evidence.’ [Citations.] ‘Rather, the 

statute uses the word in its etymological sense of “prejudging” a 

person or cause on the basis of extraneous factors. [Citation.]’

[Citation.]” [Citation.] In other words, evidence should be 

excluded as unduly prejudicial when it is of such nature as to 

inflame the emotions of the jury, motivating them to use the 

information, not to logically evaluate the point upon which it is 

relevant, but to reward or punish one side because of the jurors’

emotional reaction. In such a circumstance, the evidence is 

unduly prejudicial because of the substantial likelihood the jury 

will use it for an illegitimate purpose.’ ” (People v. Doolin (2009) 

45 Cal.4th 390, 438-439.) “An exercise of discretion under 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

43

Evidence Code section 352 will be affirmed unless it was 

arbitrary, capricious, or patently absurd and the ruling resulted 

in a miscarriage of justice.” (People v. Winbush (2017) 2 Cal.5th 

402, 469 (Winbush).)

As to victim photographs, the court’s discretion under 

Evidence Code section 352 to exclude evidence showing 

circumstances of the crime “is much narrower at the penalty 

phase than at the guilt phase. This is so because the prosecution 

has the right to establish the circumstances of the crime, 

including its gruesome consequences ([Pen. Code,] § 190.3, 

factor (a)), and because the risk of an improper guilt finding 

based on visceral reactions is no longer present.” (People v. 

Bonilla (2007) 41 Cal.4th 313, 353-354; see People v. Anderson

(2001) 25 Cal.4th 543, 591-592.) At the penalty phase, the jury 

“is expected to subjectively weigh the evidence, and the 

prosecution is entitled to place the capital offense and the 

offender in a morally bad light.” (Box, supra, 23 Cal.4th at 

p. 1201.)

The court did not abuse its discretion in admitting the 

unredacted videotape in the penalty phase. There is no dispute 

that it accurately represents the events depicted. The 

prosecution was entitled to demonstrate the full extent of the 

suffering defendant inflicted on his victim. We have listened to 

the penalty-phase tape. The sounds are relatively brief, lasting 

around 30 seconds. While unpleasant, they are not so gruesome

that they would distract the jury or prevent it from performing 

its proper role.

3. Character Evidence

Defendant asserts the court erred in allowing Kenneth A.’s 

mother to testify about her son’s untruthfulness. Kenneth, who 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

44

testified for defendant, said Tory had bragged in juvenile hall 

that he had committed the Quik Stop murder. The prosecution 

called Kenneth’s mother in rebuttal. Regina A. had raised her 

son until he was 13. During the ensuing six years, they had only 

infrequent contact when she visited Kenneth in juvenile hall or 

county jail. Regina thought she knew her son well, although not 

“real well.” She knew his family members but not many of his 

friends or neighbors. Over defendant’s objection, the court 

allowed Regina to give an opinion that sometimes Kenneth was 

truthful and sometimes he was not. She said he had been known 

to lie at times to gain an advantage for himself. Defendant also 

objected unsuccessfully when Regina was asked whether 

Kenneth had a reputation among family members for 

truthfulness. She responded, “they probably would think that 

he wasn’t truthful.” 

Evidence of a witness’s character for truthfulness, or its 

opposite, is relevant to credibility and admissible for this 

purpose. (Evid. Code, § 780, subd. (e).) This evidence may be 

shown by “(a) evidence of specific instances of conduct, 

(b) opinion evidence, or (c) reputation evidence.” (Simons, Cal. 

Evidence Manual (2018) Witnesses, § 3:49, p. 288.)

Defendant concedes evidence of Kenneth A.’s character for 

truthfulness was admissible but argues there was insufficient 

foundation for Regina’s testimony about it. A lay witness may 

testify to an opinion if the testimony is based on the witness’s 

personal observations or knowledge. (See People v. McAlpin

(1991) 53 Cal.3d 1289, 1306-1307.) “An individual who has 

known a witness for a reasonable length of time or who knows 

the reputation of that witness for honesty and veracity in the 

community may qualify to testify as to the witness’ character for 

honesty or veracity.” (People v. Sergill (1982) 138 Cal.App.3d 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

45

34, 39.) Regina had raised her son for 13 years. Although her 

contact with Kenneth grew less frequent, she continued to visit 

him during the time he was in custody. These contacts were 

more than adequate to establish a foundation of personal 

knowledge. (See People v. Kipp (1998) 18 Cal.4th 349, 371.) Nor 

did the court err in admitting reputation testimony. Although 

Regina could not speak to Kenneth’s reputation among friends 

and neighbors, she was aware of his reputation for honesty 

among family members. Her testimony about Kenneth’s 

reputation was limited to these family views. (See People v. 

Cobb (1955) 45 Cal.2d 158, 164.)

4. Alleged Instructional Errors

a. Credibility of a Drug Addict

Several prosecution witnesses, including its key witness 

Tory T., admitted being under the influence of alcohol or drugs 

at the time of the events they described. At the close of the guilt 

phase, defendant requested an instruction stating: “The 

testimony of a drug addict must be examined and weighed by 

the jury with greater care than the testimony of a witness who 

does not abuse drugs. The jury must determine whether the 

testimony of the drug addict has been affected by the drug use 

or the need to obtain drugs.” The court properly refused to give 

the instruction. 

“[A] trial court may properly refuse an instruction offered 

by the defendant if it incorrectly states the law, is 

argumentative, duplicative, or potentially confusing [citation], 

or if it is not supported by substantial evidence [citation].” 

(People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).) Instructions 

that highlight specific evidence, or invite the jury to draw 

inferences favorable to one side, are considered argumentative 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

46

and generally should not be given. (People v. Earp (1999) 20 

Cal.4th 826, 886; Mincey, supra, 2 Cal.4th at p. 437.) 

In directing the jury to examine the testimony of certain 

prosecution witnesses with greater skepticism, defendant’s 

proposed instruction was argumentative. It implied that 

witnesses had not only used drugs but were addicted to them. 

It was also duplicative of a proposed instruction the court did

give, with modification, at defendant’s request. The jury was 

instructed: “In determining the credibility of a witness, you may 

consider the witness’s capacity to hear or see that about which 

the witness testified and the witness’s ability to recollect or 

relate such matters. [¶] Specifically, in this regard, you may 

consider whether any witness was under the influence of alcohol 

and drugs or other intoxicants at the time the witness testified. 

If you believe that any witness was under the influence of 

alcohol, drugs or other intoxicants at the time the witness 

testified, this factor may be considered by you in judging the 

credibility of the witness.” The court did not err in refusing to 

give defendant’s duplicative instruction on the same topic.

Although defendant contends federal courts have allowed 

similar instructions, the decisions he cites involved “a far 

narrower category of witnesses—namely, narcotics addicts who 

are paid informers for the Government with criminal charges 

pending against them.” (U.S. v. Kinnard (D.C. Cir. 1972) 465 

F.2d 566, 572; see U.S. v. Collins (5th Cir. 1972) 472 F.2d 1017, 

1018.) Paid informers present special reliability concerns not 

present here. Moreover, federal courts have held that the 

“addict-informer” jury instruction is not required if the witness 

has been cross-examined about the addiction or if another 

cautionary instruction has been given. (U.S. v. Vgeri (9th Cir. 

1995) 51 F.3d 876, 881.)
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

47

b. Lesser-included Offense of Firearm

Discharge

Defendant was charged with the felony of maliciously and 

willfully discharging a firearm at an occupied vehicle (§ 246) 

when he shot at truck driver Daniel Perry. A related statute, 

section 246.3, subdivision (a), makes it a public offense to

“willfully discharge[] a firearm in a grossly negligent manner 

which could result in injury or death to a person.” The only 

difference between the two crimes is that the charged offense 

“requires that an inhabited dwelling or other specified object be 

within the defendant’s firing range.” (People v. Ramirez (2009) 

45 Cal.4th 980, 990 (Ramirez).) Section 246.3, subdivision (a) is 

a necessarily included lesser offense of section 246. (Ramirez, 

at p. 990.)

“ ‘[A] trial court must give “ ‘ “instructions on lesser 

included offenses when the evidence raises a question as to 

whether all of the elements of the charged offense were present 

[citation], but not when there is no evidence that the offense was 

less than that charged.” ’ ” [Citation.] “As our prior decisions 

explain, the existence of ‘any evidence, no matter how weak’ will 

not justify instructions on a lesser included offense, but such 

instructions are required whenever evidence that the defendant 

is guilty only of the lesser offense is ‘substantial enough to merit 

consideration’ by the jury. [Citations.] ‘Substantial evidence’ in 

this context is ‘ “evidence from which a jury composed of 

reasonable [persons] could . . . conclude[]” ’ that the lesser 

offense, but not the greater, was committed.” [Citation.]’ 

[Citation.]” (People v. Sattiewhite (2014) 59 Cal.4th 446, 477.)

The People contend defendant invited any error. The trial 

court asked whether additional instructions were needed on 

lesser offenses; defense counsel agreed they were not. The 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

48

invited error doctrine bars an appellate challenge to the absence 

of a lesser included offense instruction if the defendant, for 

tactical reasons, persuaded the trial court to forgo giving the 

instruction. (People v. Beames (2007) 40 Cal.4th 907, 927-928; 

People v. Horning (2004) 34 Cal.4th 871, 905.) However, the 

doctrine does not apply if defendant merely acquiesced in the 

absence of an instruction. (People v. Avalos (1984) 37 Cal.3d 

216, 229.) “The record must reflect that counsel had a deliberate 

tactical purpose.” (Ibid.; accord Moon, supra, 37 Cal.4th at 

p. 28.) Because the record here reveals no such purpose, nor

indeed any discussion of a specific instruction, the doctrine does 

not apply.

The People also argue there is no substantial evidence

defendant committed only the lesser offense. “The crime of 

shooting at an occupied vehicle ‘is not limited to shooting 

directly at [the] occupied target.’ (People v. Overman (2005) 126 

Cal.App.4th 1344, 1355-1356.) Rather, the applicable statute 

‘proscribes shooting either directly at or in close proximity to an 

. . . occupied target under circumstances showing a conscious 

disregard for the probability that one or more bullets will strike 

the target or persons in or around it.’ ” (People v. Phung (2018) 

25 Cal.App.5th 741, 761.) Thus, to find defendant guilty of 

section 246.3, subdivision (a) but not section 246, the jury would 

have had to find that defendant’s shots were not aimed at or “ ‘in 

close proximity to’ ” Perry’s truck. (Phung, at p. 761; see 

Ramirez, supra, 45 Cal.4th at p. 990.)
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

49

Two witnesses described the shooting.16 Perry testified 

that he saw someone emerge from the Quik Stop and heard two 

shots. The shooter was running toward his truck. Perry later 

found a dent in his passenger door, which suggested the vehicle 

had been hit. Perry thought the shots were directed at him but

never said he saw the shooter aim at his truck. Tory, however, 

testified that he saw defendant shoot at Perry. According to 

Tory, defendant also said he “shot at the trucker” because 

defendant wanted to leave no witnesses. Defendant argues the 

jury could have disregarded Tory’s testimony because he “had 

significant credibility problems.” Even so, the record includes

no evidence that defendant fired aimlessly or into the air. 

“ ‘Speculation is an insufficient basis upon which to require the 

giving of an instruction on a lesser offense.’ ” (People v. Rogers

(2009) 46 Cal.4th 1136, 1169.) There was no substantial 

evidence that defendant was guilty only of a grossly negligent 

firearm discharge. The court had no sua sponte duty to instruct 

on this lesser offense. (See People v. Huggins (2006) 38 Cal.4th 

175, 215-217 (Huggins).)

Instructions on lesser included offenses are not 

constitutionally required in a noncapital case. (People v. 

Breverman (1998) 19 Cal.4th 142, 165.) Nevertheless, 

defendant contends the court’s failure to instruct on 

section 246.3, subdivision (a) violated due process and denied 

him a reliable penalty determination. He argues that, in a 

capital case, due process requires instructions on all lesser 

included offenses supported by the evidence. (See Beck v. 

 

16 The jury may also have heard gunshots in the store’s 

surveillance video, but the sound would not have disclosed 

where the shots were aimed.
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

50

Alabama (1980) 447 U.S. 625, 637-638.) The constitutional 

concerns in Beck v. Alabama are not implicated when, as here, 

substantial evidence does not support an instruction. (People v. 

Romero (2008) 44 Cal.4th 386, 404 (Romero).) Moreover, 

defendant’s federal authorities discuss the importance of 

instructing on lesser noncapital offenses that are necessarily 

included within a capital charge. (See Beck, at pp. 634-637.) 

Here, defendant’s claim centers on a lesser offense to an 

auxiliary charge that is entirely separate from his first degree 

murder conviction.

5. Prosecutorial Misconduct

Defendant argues the prosecutor committed misconduct 

by trivializing the reasonable doubt standard during the guilt 

phase closing argument. The claim fails.

Before closing arguments, the jury heard numerous 

instructions including one defining reasonable doubt (CALJIC 

No. 2.90). Referring back to this instruction, the prosecutor 

made the following statements in his rebuttal argument: “You 

have got an instruction about reasonable doubt. . . . Reasonable 

doubt is not all possible doubt. It has to be based on reason. [¶]

If I take this quarter and flip it in the air over a hard surface, 

it’s possible it could land on heads or it’s possible it could land 

on tails. It’s reasonable either way. It’s reasonable because it’s 

based on physics, logic and reason. [¶] But if I flip this coin up 

in the air and expected it to land smack dab on its side and stay 

standing still, is it possible? Sure, it’s possible. Anything is 

possible, but is it reasonable?” The court overruled defendant’s 

objection that this argument misstated the reasonable doubt 

standard. 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

51

“As we have often explained, ‘it is improper for the 

prosecutor to misstate the law generally [citation], and 

particularly to attempt to absolve the prosecution from its prima 

facie obligation to overcome reasonable doubt on all elements 

[citation].’ (People v. Marshall (1996) 13 Cal.4th 799, 831.) 

Improper comments violate the federal Constitution when they 

constitute a pattern of conduct so egregious that it infects the 

trial with such unfairness as to make the conviction a denial of 

due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) 

Improper comments falling short of this test nevertheless 

constitute misconduct under state law if they involve use of 

deceptive or reprehensible methods to attempt to persuade 

either the court or the jury. (Ibid.) To establish misconduct, 

defendant need not show that the prosecutor acted in bad faith. 

(Id. at p. 822.)” (People v. Cortez (2016) 63 Cal.4th 101, 130

(Cortez).) However, “[w]hen attacking the prosecutor’s remarks 

to the jury, the defendant must show that, ‘[i]n the context of 

the whole argument and the instructions’ [citation], there was ‘a 

reasonable likelihood the jury understood or applied the 

complained-of comments in an improper or erroneous manner.’ ” 

(People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)

“The case law is replete with innovative but ill-fated 

attempts to explain the reasonable doubt standard.” (Centeno, 

supra, 60 Cal.4th at p. 667.) We have generally discouraged 

prosecutors from using colorful analogies or displays on this 

topic. (Ibid.) 

The prosecutor’s coin-toss analogy here was somewhat 

problematic because it is commonly linked to the concept of 

probability and 50-50 odds. Prosecutors should avoid drawing 

comparisons that risk confusing or trivializing the reasonable 

doubt standard. Nevertheless, it is not reasonably likely the 
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Opinion of the Court by Corrigan, J.

52

jury would have misunderstood the prosecutor’s argument as 

suggesting they could decide the case by flipping a coin. This 

court does not “ ‘ “lightly infer” that the jury drew the most 

damaging rather than the least damaging meaning from the 

prosecutor’s statements. [Citation.]’ ” (Brown, supra, 31 

Cal.4th at pp. 553-554.)

Here, the prosecutor was attempting to explain the 

meaning of “reasonable.” The jury had been properly instructed 

on the reasonable doubt standard, and the prosecutor’s 

argument specifically brought their attention to this instruction. 

(See Cortez, supra, 63 Cal.4th at pp. 131-132.) In contrast to 

some other cases, the prosecutor here did not attempt to 

quantify reasonable doubt or analogize it to everyday decisions 

like whether to change lanes in traffic. (See People v. Nguyen

(1995) 40 Cal.App.4th 28, 35-36.) He gave jurors an example of

a possible or imaginary, but unlikely, occurrence. The statute 

defining the burden of proof expressly states that a “reasonable” 

doubt is not a mere “ ‘possible’ ” or “ ‘imaginary’ ” doubt. (§ 1096; 

see Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor’s 

argument did not undermine this standard. (See Romero, 

supra, 44 Cal.4th at p. 416.)

C. Penalty Phase Issues

1. Claims Related to Defendant’s Courtroom

Outburst and Fight with Deputies

Defendant raises several claims related to events after his 

courtroom outburst during the penalty phase. (See ante, at 

p. 12.) To recap: Defendant became upset when his mother 

cried while leaving the stand. Defense counsel asked for a 

recess, and the jurors left the courtroom. Defendant began 

banging on counsel table with both hands, making noises, and 
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Opinion of the Court by Corrigan, J.

53

trying to lift the table. Courtroom deputies surrounded him and

a scuffle ensued. During this time, the judge retreated to his 

chambers. It ultimately took nine deputies three to five minutes 

to subdue defendant, and some deputies were injured. The 

judge later described the incident as the most serious courtroom 

disturbance he had seen in 17 years on the bench. After 

defendant was removed, the court and counsel discussed 

potential security measures (see post, at pp. 68-70) and jury 

instructions. 

a. Defendant’s Absence from Later

Proceedings

i. Background

The next day, a Friday, defendant came to court in a 

wheelchair, wearing jail clothes, and reporting severe pain in 

his back and legs. Defense counsel believed the pain would 

prevent him from participating in trial that day. Counsel faced 

a dilemma, however, because witnesses had traveled to court to 

testify for the defense. After defendant and his attorney 

conferred, defense counsel reported: “Mr. Bell does not want to 

be here today. He wants to go back to his cell. . . . He 

understands that there will be testimony. He’s willing to not be 

here. I told him what the testimony would be. [¶] I believe that 

his presence will not be required for me to effectively present the 

testimony that I’m going to be presenting and any redirect or 

any other things I have to do today in court. [¶] I think Mr. 

Bell’s physical condition is such that he’s going to be in pain, 

probably making some noise from having pain, moving around, 

which would distract me and disrupt the courtroom. Therefore, 

I think the Court can make a finding . . . under the case law that 

he can be excluded for that reason. [¶] I would be willing to 
PEOPLE v. BELL

Opinion of the Court by Corrigan, J.

54

waive any other irregularities that the Court feels would be 

appropriate.” 

The court and prosecutor expressed concern that it would 

be error to proceed in defendant’s absence. The court observed 

it could have excluded defendant from court the previous day, 

based on his behavior, and then asked defense counsel, “are you 

saying things might get disrupted again today . . . ?” Defense 

counsel confirmed that if the court did not grant defendant’s 

wish to be excused from trial that day, there was “a strong 

possibility of further disruption.” Based on defendant’s express 

desire to be excused, his choice to wear jail clothing to court, his 

exceptional outburst the previous day, and his attorney’s 

prediction of further disruption, the court found grounds to 

excuse defendant for the day. The court then suggested that the 

case could be continued to the following Monday. Defendant 

initially agreed with that suggestion, but the scheduling was 

problematic for his expert witness, Nell Riley. After again 

conferring with counsel, defendant expressly waived his right to 

be present. He said he understood two psychologists and two 

character witnesses would be testifying that day and specifically 

affirmed that he did not object to their testifying in his absence.

Immediately after defendant was excused from the 

courtroom, the court and counsel discussed a note from the jury 

about defendant’s violent behavior the previous day. (See post, 

at pp. 63-65.) The court questioned jurors about the note. In 

this discussion, the court noted defendant’s absence and told the 

jury they could not consider it in deciding the case. Defense 

counsel then presented testimony from expert Nell Riley, 

defendant’s brother Scheron Bell, and defendant’s ex-girlfriend 

L.O. After a break in Riley’s testimony, the court admonished 

the jury again not to speculate about defendant’s absence “or 
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Opinion of the Court by Corrigan, J.

55

consider that in any way in making [its] decision.” After the jury 

was excused for the day, the court and counsel discussed jury 

instructions and evidentiary issues. 

Defendant returned to court on Monday, walking without 

assistance and wearing a suit. He reported that he felt “fine.” 

The court asked if defendant was going to be disruptive, and 

defense counsel responded he was no longer concerned about 

disruptions because defendant was feeling better. The court 

stressed that defendant had not been excused solely because he 

reported being in pain. The court told counsel: “I didn’t get that 

from what you said on Friday, that his disruptive behavior 

would only be because of the pain. . . . I was prepared to put the 

case over [until] Monday to see if he felt better. [¶] You didn’t 

want to put the case over because you had your witnesses here 

and then you talked to Mr. Bell again, and . . . my interpretation 

of what you were saying is that, while he might be disruptive 

because of his pain, he might also be disruptive because I wasn’t 

going to let him go back to his jail cell. [¶] I don’t want anything 

in the record here to indicate that we excluded him from trial 

against his will or just because he was in some pain after that 

incident on Thursday. I mean, if that’s the case, you can call 

your witnesses back here and we will put them on again . . . .” 

Defense counsel did not ask to recall his witnesses. Instead, he 

responded: “Your Honor, I think that it’s clear from the record 

that was taken on Friday that Mr. Bell did not want to be here, 

that . . . — yes, I probably indicated that the disruption could 

have come from two sources. I am not now trying to backpedal 

on what I said on Friday.”
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Opinion of the Court by Corrigan, J.

56

ii. Discussion

Defendant now contends his absence from trial violated 

his rights to due process and confrontation under the state and 

federal constitutions and also violated state statutory law. 

Defendant waived his constitutional rights and any statutory 

error was harmless.

A criminal defendant accused of a felony has the

constitutional right to be present at every critical stage of the 

trial, including during the taking of evidence. (Illinois v. Allen

(1970) 397 U.S. 337, 338 (Allen); People v. Rundle (2008) 43 

Cal.4th 76, 133 (Rundle); People v. Jackson (1996) 13 Cal.4th 

1164, 1209 (Jackson).) “ ‘A competent defendant may waive that 

right, however. [Citation.] Neither the constitutional right to 

confrontation nor the right to due process precludes waiver of a 

defendant’s right to be present at a critical stage of a capital 

trial. [Citation.]’ ” (Romero, supra, 44 Cal.4th at p. 418; People 

v. Weaver (2001) 26 Cal.4th 876, 966 (Weaver).) The waiver 

must, of course, be knowing, intelligent, and voluntary. (See

Moon, supra, 37 Cal.4th at p. 21.)

Defendant clearly and expressly waived his right to be 

present during Friday’s proceedings. Nevertheless, he now 

asserts his waiver was not voluntary because he was offered no 

meaningful alternatives. The record belies this claim. The court 

offered to continue the trial until Monday, when defendant 

would presumably feel well enough to attend, but defendant’s 

expert witness was not available that day. Defendant now 

faults the court for failing to offer a longer continuance, but he 

did not seek one below. On the contrary, defendant’s attorney 

repeatedly said he was ready to proceed with the witnesses 

whose presence he had secured for that day, including an expert 
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Opinion of the Court by Corrigan, J.

57

neuropsychologist who had traveled to court at some expense. 

Although defendant was initially agreeable when the court 

suggested delaying the trial until Monday, he changed his mind 

after conferring with counsel. After this conference, defendant 

expressly affirmed that he wanted to return to his cell and for 

trial to proceed that day in his absence.

We found a waiver voluntary under similar facts in 

Jackson, supra, 13 Cal.4th 1164. There, the defendant came to 

court with a black eye. When the court refused to grant a 

continuance, the defendant expressed a preference to be absent 

that day. (Id. at p. 1209.) He was advised of his right to be 

present, told of the prosecution witnesses who would be 

testifying, and reminded he was eligible for the death penalty. 

(Ibid.) There, as here, the defendant made it clear he wished to 

be absent. (Ibid.) We found “no constitutional infirmity . . . with 

the defendant’s voluntary waiver of his right to be present on a 

single day of the trial.” (Id. at p. 1210.) The same conclusion

obtains here. To the extent defendant faced a difficult choice, 

the problem was of his own making. His suit was badly rumpled 

and he was in pain following the fight he had precipitated with 

courtroom deputies. Although his behavior was subdued the 

next morning, he did not want to remain in court for the trial, 

even though witnesses his lawyer had brought to court would be 

testifying on his behalf. After consulting with counsel, he 

expressly waived his right to be present. Because the record 

confirms this waiver was knowing and voluntary, his absence 

from trial was not constitutional error. (See Moon, supra, 37 

Cal.4th at pp. 20-21; Weaver, supra, 26 Cal.4th at pp. 966-967.)

The defense also urges statutory error. Section 977, 

subdivision (b)(1) states that in all felony cases, “the accused 

shall be personally present . . . during those portions of the trial 
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Opinion of the Court by Corrigan, J.

58

when evidence is taken before the trier of fact,” unless he has 

executed a written waiver of that right in open court. 

Section 1043 generally provides that a felony defendant must be 

personally present at trial except that a defendant’s absence will 

not prevent trial from continuing to verdict in: “(b) . . . [¶] 

(1) [a]ny case in which the defendant, after he has been warned 

by the judge that he will be removed if he continues his 

disruptive behavior, nevertheless insists on conducting himself 

in a manner so disorderly, disruptive, and disrespectful of the 

court that the trial cannot be carried on with him in the 

courtroom[, or] [¶] (2) [a]ny prosecution for an offense which is 

not punishable by death in which the defendant is voluntarily 

absent.”

“Thus, when read together, sections 977 and 1043 permit 

a capital defendant to be absent from the courtroom only on two 

occasions: (1) when he has been removed by the court for 

disruptive behavior under section 1043, subdivision (b)(1), and 

(2) when he voluntarily waives his rights pursuant to section 

977, subdivision (b)(1). However, section 977, subdivision (b)(1), 

the subdivision that authorizes waiver for felony defendants, 

expressly provides for situations in which the defendant cannot 

waive his right to be present, including during the taking of 

evidence before the trier of fact. Section 1043, 

subdivision (b)(2), further makes clear that its broad ‘voluntary’ 

exception to the requirement that felony defendants be present 

at trial does not apply to capital defendants.” (Jackson, supra, 

13 Cal.4th at p. 1210.) This means that, under state law, “a 

capital defendant may not voluntarily waive his right to be 

present during . . . portions of the trial in which evidence is 

taken, and . . . may not be removed from the courtroom unless 
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Opinion of the Court by Corrigan, J.

59

he has been disruptive or threatens to be disruptive.” (Id. at 

p. 1211.)

The People concede defendant could not waive his 

statutory rights but suggest the removal was appropriate 

because defendant was potentially disruptive. We generally 

defer to the trial court’s determination as to when a disruption 

has occurred or is likely to occur. (See People v. Welch (1999) 20 

Cal.4th 701, 774 (Welch); Jackson, supra, 13 Cal.4th at p. 1211.) 

Defendant’s violent and prolonged outburst the previous 

afternoon had clearly disrupted the trial. Although he was not 

actively disruptive on Friday morning, his arrival in a 

wheelchair and jail clothes presented other difficulties. 

Generally, a defendant has the right not to appear at trial in jail 

clothing. (People v. Bradford (1997) 15 Cal.4th 1229, 1362.) 

More importantly, defense counsel represented that there was 

“a strong possibility” defendant would once again disrupt the 

proceedings. He was upset, in pain, and did not want to be in 

court. Although counsel’s later comments focused on potentially 

distracting noises and movements defendant might make, he 

did not exclude the possibility of another violent disruption if 

defendant were forced to remain in court against his wishes. 

Combined with the severity of defendant’s outburst the day 

before, counsel’s explanation of defendant’s physical and mental 

state and unwillingness to attend court provided substantial 

support for the court’s conclusion that defendant would be 

disruptive if compelled to be present. (See Welch, at p. 774.) 

Counsel’s comments also essentially conceded defendant was 

not prepared to “reclaim” his right to be present by acting with 

appropriate decorum. (See § 1093, subd. (c); People v. Banks

(2014) 59 Cal.4th 1113, 1180 (Banks).)
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Opinion of the Court by Corrigan, J.

60

Even assuming the court erred in allowing defendant to 

absent himself, the error was purely statutory. (Weaver, supra, 

26 Cal.4th at p. 968; Jackson, supra, 13 Cal.4th at p. 1211.) 

Reversal is required only if it is reasonably probable defendant 

would have obtained a more favorable result absent the error. 

(See People v. Watson (1956) 46 Cal.2d 818, 836.) Any error in 

excusing defendant from the day’s proceedings was clearly 

harmless. Defense counsel was well prepared to present the 

testimony of his witnesses. Defendant’s absence occurred 

during his own case, not that of the prosecution. Defendant was 

aware of what his witnesses would say. In addition, the court 

offered the defense an opportunity to recall the witnesses to 

testify in defendant’s presence, and the defense declined the 

offer.

The court also repeatedly and appropriately instructed the 

jury not to consider defendant’s absence in deciding the case. 

Defendant now complains the jury might have drawn the 

damaging inference that he was absent because he had 

continued to engage in physically dangerous or threatening 

behavior, but he could have cured any potential harm by 

requesting a specific instruction. He did not do so. Indeed, 

lengthy or detailed admonitions may have risked drawing 

greater attention to defendant’s absence. Moreover, some jurors 

were apparently unsettled by defendant’s courtroom outburst. 

(See post, at pp. 63-65.) His absence the following day, “and the 

concomitant inability of the jury to observe him” in a wheelchair 

and jail clothing, “may actually have helped him.” (Weaver, 

supra, 26 Cal.4th at p. 968.) Of course, a negative inference was 

also possible, but defendant offers nothing beyond speculation 

to suggest he was so prejudiced. The speculative nature of any 
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Opinion of the Court by Corrigan, J.

61

possible harm precludes a finding that the penalty phase verdict 

was affected. (Ibid.)

Finally, to the extent defendant’s complaint encompasses 

his absence on Thursday, immediately after his courtroom 

outburst, there was no statutory or constitutional error. Under 

the federal and state constitutions, “a defendant can lose his 

right to be present at trial if, after he has been warned by the 

judge that he will be removed if he continues his disruptive 

behavior, he nevertheless insists on conducting himself in a 

manner so disorderly, disruptive, and disrespectful of the court 

that his trial cannot be carried on with him in the courtroom.” 

(Allen, supra, 397 U.S. at p. 343; see Banks, supra, 59 Cal.4th at 

p. 1180.) Similarly, section 1043 “provides that an unduly 

disruptive defendant, after being warned, may be removed from 

the courtroom until he ‘reclaims’ his right to be present by 

expressing his willingness to conduct himself properly. (See id., 

subds. (b)(1) & (c).)” (People v. Medina (1995) 11 Cal.4th 694, 

738.)

It was within the trial court’s discretion to conclude

defendant’s violent physical outburst necessitated his removal 

from court and absence for the remainder of the afternoon’s

proceedings. (See Welch, supra, 20 Cal.4th at p. 774.) 

Defendant had to be restrained by nine deputies after a violent 

outburst the trial judge described as the most serious he had 

seen in 17 years on the bench. Nor was this defendant’s first 

courtroom disruption. We have noted defendant’s expression of 

displeasure at the court’s ruling on his discovery requests. 

(Ante, at p. 27, fn. 13.) Again, two weeks before the courtroom 

melee, defendant interrupted the testimony of prosecution 

witness Nick Lauderbaugh with profanities and accusations of 
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Opinion of the Court by Corrigan, J.

62

lying.17 After being cautioned that such outbursts could hurt 

him if the case reached a penalty phase, defendant apologized 

for his behavior. He was therefore on notice that courtroom 

disruptions were inappropriate and not to be tolerated. 

Although the record includes no evidence of an express warning, 

one was not required under the circumstances here. “Some 

misconduct, such as a violent assault in court, is so dangerous 

as to justify a defendant’s removal even without a prior warning. 

[Citations.] Because ‘dignity, order, and decorum’ are essential 

to the administration of criminal justice, a trial court ‘must be 

given sufficient discretion to meet the circumstances of each 

case.’ (Allen, [supra, 397 U.S.] at p. 343.)” (People v. Johnson

(2018) 6 Cal.5th 541, 557, italics added.) Defendant’s statutory 

and constitutional claims also fail because he did not “reclaim”

his right to be present Thursday afternoon by informing the 

court he wished to be readmitted to the courtroom and was 

willing to behave appropriately. (See Banks, supra, 59 Cal.4th 

at p. 1181.)

Finally, the proceedings defendant missed on Thursday 

afternoon were not critical. “A critical stage of the trial is one in 

which a defendant’s ‘ “absence might frustrate the fairness of 

the proceedings” [citation], or “whenever his presence has a 

relation, reasonably substantial, to the fullness of his 

opportunity to defend against the charge” [citation].’ ” (Rundle, 

supra, 43 Cal.4th at p. 133.) Defendant’s outburst occurred 

 

17 When Lauderbaugh began answering a question about 

what defendant had said about the Quik Stop robbery, 

defendant interrupted, “Lying fool.” Defense counsel 

immediately requested a break. The court agreed, and as it told 

jurors they were free to go outside, defendant said, “— shit. He’s 

lying.” The court observed, “Mr. Bell, you’re not helping.” 
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Opinion of the Court by Corrigan, J.

63

after the testimony of the last witness of the day, and the jury 

was sent home immediately afterward. In defendant’s absence, 

the court and counsel described for the record what had 

happened and discussed various security options with the 

courtroom bailiffs. After touching on some evidentiary matters, 

they resumed a discussion about jury instructions. These 

proceedings consumed one hour, after which court recessed for 

the day. “[A] defendant may ordinarily be excluded from 

conferences on questions of law, even if those questions are 

critical to the outcome of the case, because the defendant’s 

presence would not contribute to the fairness of the proceeding.” 

(People v. Concepcion (2008) 45 Cal.4th 77, 82, fn. 6.) A criminal 

defendant has no constitutional right to be present when the 

court and counsel discuss questions of law, including discussions

on jury instructions. (People v. Morris (1991) 53 Cal.3d 152, 

210.)

b. Potential Jury Bias Resulting from

Outburst

Defendant next claims the court failed to take appropriate 

steps to ensure the jury was not biased against him as a result 

of the incident. He also contends the court erred in denying his 

motion for mistrial. The court’s voir dire and admonitions were 

adequate, and its mistrial ruling was not an abuse of discretion.

i. Background

The morning after defendant’s courtroom outburst, the 

jury foreperson sent out a note, which stated: “ ‘To whom it may 

concern: We the jury are concerned with walking past the 

Defendant while he is not restrained. Yesterday’s event could 

have caused injury to some jurors that were rushed into the jury 

room during the incident.’ ” The court observed that jurors were 
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Opinion of the Court by Corrigan, J.

64

not in the courtroom during the disruption but might have heard 

it. At defense counsel’s suggestion, the court called for the jury

as a group, noting that individual questioning could be reserved 

for any juror who indicated concern about the ability to remain 

fair and impartial. 

In response to the court’s questions, the jury foreperson 

confirmed that jurors could hear the incident from the jury 

room. The note was based on their experience of the incident 

and not from a newspaper article or media report.18 The court 

admonished jurors not to speculate about what might have 

happened in the courtroom, although they could consider 

testimony about the incident if it was presented. The court then 

stated, “I want to make sure that because of what happened 

yesterday no one is feeling biased or prejudiced in the case at 

this point in time and feels they could not make a fair decision 

based on the evidence.” It invited any juror having such 

thoughts to alert the court by note or otherwise. A juror 

explained that they had sent the note because some of the jurors 

had been “shov[ed] and pushe[d]” into the jury room when the 

incident began. The court responded that when defendant 

returned, the court would “work it logistically so there won’t be 

a problem with you — take care of any fears you might have.” 

At defense counsel’s request, the court asked if there had been 

any discussion of the incident in the jury room. The jurors 

confirmed that the only discussion concerned getting everyone 

in the room and locking the door. They did not discuss the facts 

of the case. The court then repeated, “If anyone does feel that 

 

18 Defendant’s outburst was reported in a local newspaper, 

although the article inaccurately suggested the jury was in the 

courtroom at the time. 
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Opinion of the Court by Corrigan, J.

65

something is bothering them about [the incident] or feel they 

couldn’t be fair and impartial, please let us know, write a note 

or something like that.” 

At counsel’s urging, the court again asked if jurors had 

discussed “the incident that was going on in the courtroom.” The 

foreperson said that although they could hear “screaming and 

yelling” from the courtroom, the jurors discussed only the 

experience of being pushed into the jury room and how they 

wanted to ensure their safety walking past defendant in the 

future. Defense counsel declined the court’s invitation to 

question the jury further. No other communication was received 

from the jury on this topic.

Defendant moved for a mistrial. His attorney expressed 

concern that jurors had discussed defendant’s personality or 

said they were afraid of him. The court observed that, if jurors 

were afraid, defendant had “brought that on himself.” It denied 

the motion. Although defendant might seek a new trial if he 

obtained evidence that the incident tainted the jury, the court 

found no basis for a mistrial at that time given the jurors’ 

responses. The court invited defense counsel to propose a 

special jury instruction on the issue if he felt one was necessary. 

ii. Voir Dire of Jury and Instructions 

Defendant argues the court did not conduct an adequate 

inquiry into the prejudicial effect of his courtroom outburst. He

forfeited this claim by not asking for additional questioning. 

(See People v. Holloway (2004) 33 Cal.4th 96, 126.) The court 

specifically invited defense counsel to question the jury further 

about potential bias, and he declined. 

The claim also fails on the merits. In general, the “court 

must conduct a sufficient inquiry to determine facts alleged as 
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Opinion of the Court by Corrigan, J.

66

juror misconduct ‘whenever the court is put on notice that good 

cause to discharge a juror may exist.’ (People v. Burgener (1986) 

41 Cal.3d 505, 519.)” (People v. Davis (1995) 10 Cal.4th 463, 

547; see People v. Martinez (2010) 47 Cal.4th 911, 942.) Not 

every incident warrants investigation, however. (People v. 

Cleveland (2001) 25 Cal.4th 466, 478.) The decision whether, 

and to what extent, investigation into possible juror bias is 

required “ ‘rests within the sound discretion of the trial court.’ ” 

(Ibid.; see People v. Maury (2003) 30 Cal.4th 342, 434.) Here, 

the record demonstrates adequate inquiry. The court 

questioned jurors about their conversations, ensuring they did 

not discuss the facts of the case. The court expressed its concern 

that jurors remain unbiased because of the incident and invited 

jurors to notify the court privately if they had any such 

inclinations. Defendant’s speculation that jurors failed to 

disclose personal fears or bias has no basis in the record. Such 

speculation does not support a duty to inquire further. (See 

People v. Williams (1997) 16 Cal.4th 153, 231; Davis, at 

p. 548.)19

Defendant also faults the court for failing to instruct 

jurors to disregard their personal experiences of the outburst. 

The court admonished the jury not to speculate about what 

happened in the courtroom, although it could consider evidence

about the incident that might be presented. If defendant 

believed any further instruction was necessary, he was obliged 

 

19 At oral argument here, defendant’s attorney argued the 

trial court should have separately questioned each juror about 

the incident. However, such focused questioning would have

drawn further attention to the event and might have amplified 

its significance. For strategic reasons, defendant’s trial counsel 

may have preferred to avoid this risk.
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Opinion of the Court by Corrigan, J.

67

to request it. (See People v. Lee (2011) 51 Cal.4th 620, 638.) 

Defendant’s failure to propose an instruction, even after the 

court invited him to do so, forfeits his claim of error. (See People 

v. Clark (2011) 52 Cal.4th 856, 942; People v. Ledesma (2006) 39 

Cal.4th 641, 697-698 (Ledesma).) Moreover, it is far from clear 

that jurors were required to ignore their personal experience of 

defendant’s courtroom outburst. (See post, at pp. 67-68; People 

v. Williams (1988) 44 Cal.3d 1127, 1156.) The absence of an 

instruction to this effect was not error.

iii. Motion for Mistrial 

Defendant asserts the court erred in denying his motion 

for a mistrial. In general, “a motion for mistrial should be 

granted only when ‘ “a party’s chances of receiving a fair trial 

have been irreparably damaged.” ’ ” (People v. Ayala (2000) 23 

Cal.4th 225, 282.) “We review a ruling on a mistrial motion for 

an abuse of discretion. [Citations.] A trial court should declare 

a mistrial only ‘ “if the court is apprised of prejudice that it 

judges incurable by admonition or instruction.” ’ [Citations.] ‘In 

making this assessment of incurable prejudice, a trial court has 

considerable discretion.’ ” (People v. Lewis (2008) 43 Cal.4th 

415, 501.)

The court properly refused to grant a mistrial. 

Defendant’s motion was based on a concern that jurors were 

afraid of him, or had concluded he was a violent person, because 

of his courtroom outburst. However, we have long held that “a 

defendant may not be heard to complain when, as here, such 

prejudice as he may have suffered resulted from his own 

voluntary act.” (People v. Hendricks (1988) 44 Cal.3d 635, 643.) 

In People v. Williams, supra, 44 Cal.3d at page 1156, we 

explained that, while it is misconduct for jurors to obtain 
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Opinion of the Court by Corrigan, J.

68

evidence from outside the court, “[i]t is not clear . . . that such a 

rule applies to the jurors’ perceptions of the defendant, 

particularly when the defendant engages in disruptive or 

otherwise improper conduct in court. As a matter of policy, a 

defendant is not permitted to profit from his own misconduct.” 

(Italics added; see also People v. Lewis and Oliver (2006) 39 

Cal.4th 970, 1030 (Lewis and Oliver); People v. Arias (1996) 13 

Cal.4th 92, 148.) Denial of mistrial motions based on the 

defendant’s own courtroom misbehavior have been repeatedly 

upheld. (See, e.g., Lewis and Oliver, at pp. 1030-1031; Huggins, 

supra, 38 Cal.4th at p. 201.) So too here. As the trial court 

observed, any fear or prejudice the jurors felt as a result of 

defendant’s courtroom outburst was a problem of his own 

making. A criminal defendant “ ‘should not be permitted to 

disrupt courtroom proceedings without justification [citation] 

and then urge that same disruption as grounds for a mistrial.’ ” 

(Lewis and Oliver, at p. 1030.)

c. Physical Restraints 

After defendant’s outburst, the court ordered him 

physically restrained. While not contesting this decision itself, 

defendant argues the court improperly deferred to security 

personnel regarding the type of restraints to employ and 

improperly imposed two visible forms of restraint. He also 

contends the court erred by not instructing the jury to disregard 

the restraints. To the extent defendant’s claims are not 

forfeited, they lack merit.

i. Background

Shortly after defendant’s outburst, the court discussed 

potential security measures with the courtroom bailiffs and 

counsel. The court expressed concern for the safety of court staff 
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Opinion of the Court by Corrigan, J.

69

and counsel and found “ample grounds” to impose restraints. 

The bailiffs recommended placing defendant in full chains and 

seating him next to a deputy armed with a Taser. A third option 

was to place him in a REACT stun belt. Defense counsel agreed 

that “something is in order.” Although doubtful about the need 

for full chains, counsel assured the court he was “not going to 

object to some kind of restraint.” The court then stated it was 

inclined to order “whatever [security measure] the bailiffs feel is 

appropriate . . . because I am not a security person . . . [and] I 

don’t want my people getting hurt.” When defense counsel 

expressed concern that full chains would be visible to the jury, 

the court urged him to talk with the bailiffs off the record. The 

court observed the bailiffs had “been dealing with Bell from a 

security standpoint . . . for a few weeks” and had developed “a 

good sense” of his agitation level. 

Defendant came to court in a wheelchair the next day, 

restrained with chains and wearing a stun belt. He left before 

the jury was called in. When he returned to court the following 

Monday, he was out of the wheelchair and wearing a suit but 

was still restrained with chains and the stun belt. The court 

concluded restraints were needed because of the violence of 

defendant’s outburst. “I can’t restrain him just because . . . 

somebody in the jail or something thinks he should be, but there

has to be a reason for it. There certainly was a reason for it on 

Friday, and I am going to continue to think that there is a reason 

for it unless someone tells me differently. [¶] But based on what 

happened Thursday afternoon, he was a danger to the entire 

courtroom and the staff and the deputies. And so several 

deputies were bruised and clearly in some pain. So it was 

necessary for the safety of the entire courtroom, in my opinion, 

to restrain him on Friday. That’s also after consulting the bailiff 
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Opinion of the Court by Corrigan, J.

70

and the deputies and security because of what happened [on] 

Thursday.” 

Before the jury entered the courtroom, the court asked if 

defendant wanted an instruction telling jurors not to consider 

the restraints. Defense counsel expressed doubt that the jury

could see the restraints, but the court observed that it could see 

a handcuff and a bulge from the belt. The court explained, 

“There is legal authority to give that kind of an instruction, but 

there is also authority” supporting the absence of an instruction 

if “you don’t want it brought to the jurors’ attention.” Defense 

counsel responded, “I don’t think I want to draw their attention 

to it right now. If I think it’s a problem, I will ask for it.” The 

court suggested an instruction about restraints might be 

advisable because jurors had expressed concern for their safety. 

However, defense counsel ultimately decided to forgo an 

instruction “at this point,” noting that if jurors “raise[d] the 

issue, which they might,” it could be addressed at that time. 

ii. Discussion

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

courtroom security and orderly proceedings’ (People v. Hayes

(1999) 21 Cal.4th 1211, 1269), and its decisions on these matters 

are reviewed for abuse of discretion. (People v. Stevens (2009) 

47 Cal.4th 625, 633.) However, the court’s discretion to impose 

physical restraints is constrained by constitutional principles. 

Under California law, ‘a defendant cannot be subjected to 

physical restraints of any kind in the courtroom while in the 

jury’s presence, unless there is a showing of a manifest need for 

such restraints.’ (People v. Duran (1976) 16 Cal.3d 282, 290-

291.) Similarly, the federal ‘Constitution forbids the use of 

visible shackles . . . unless that use is “justified by an essential 
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Opinion of the Court by Corrigan, J.

71

state interest”—such as the interest in courtroom security—

specific to the defendant on trial.’ (Deck v. Missouri (2005) 544 

U.S. 622, 624, italics omitted.) We have held that these 

principles also apply to the use of an electronic ‘stun belt,’ even 

if this device is not visible to the jury. (People v. Mar (2002) 28 

Cal.4th 1201, 1219.)” (People v. Lomax (2010) 49 Cal.4th 530, 

558-559 (Lomax).)

Defendant did not object to being restrained. His attorney 

expressly agreed with the court that “some kind of restraint”

was appropriate, although he preferred it be invisible to jurors. 

Accordingly, defendant “has forfeited his claim to the extent he 

contends he should not have been restrained at all, or that the 

stun belt was an inappropriate form of restraint.” (Foster, 

supra, 50 Cal.4th at p. 1321; see People v. Manibusan (2013) 58 

Cal.4th 40, 85.)

Furthermore, the record belies defendant’s claim that the 

court improperly deferred to security personnel in deciding to 

impose the restraints. It is true that a trial court abuses its 

discretion if it delegates this decision to law enforcement 

officers. (Ervine, supra, 47 Cal.4th at p. 773; People v. Hill, 

supra, 17 Cal.4th at p. 841.) However, “[t]he court here was 

clearly aware of its obligation to make its own determination on 

the need for restraints, and not simply defer to the wishes of the 

prosecutor or courtroom security personnel.” (People v. Bryant, 

Smith and Wheeler (2014) 60 Cal.4th 335, 391; see People v. 

Simon (2016) 1 Cal.5th 98, 117.) Although the court solicited 

opinions from security staff about the best type of restraints to 

use, given their experience handling defendant and his unusual 

size and strength, it recognized that the decision to impose 

restraints could not be based simply on what “somebody in the 

jail” said. Thus, the court explained that, in its opinion, 
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Opinion of the Court by Corrigan, J.

72

restraints were needed to protect the safety of everyone in the 

courtroom from another violent outburst by defendant. The 

court’s finding of manifest need is amply supported by the 

record, which includes escalating instances of defendant’s 

misconduct. The decision to restrain defendant was well within 

the court’s discretion. (See, e.g., Lomax, supra, 49 Cal.4th at 

p. 562.) To the extent defendant complains the court failed to 

consider the “harmful psychological effects” of wearing a stun 

belt (see People v. Mar, supra, 28 Cal.4th at pp. 1225-1230), our 

discussion of this topic in Mar was offered for guidance “in future 

trials” (id. at p. 1225, italics added). Because defendant’s trial 

occurred over three years before we decided Mar, the court

cannot be faulted for failing to consider the potential 

psychological consequences identified in that opinion. (See 

People v. Covarrubias (2016) 1 Cal.5th 838, 871; Bryant, Smith 

and Wheeler, at p. 391; Lomax, at p. 562.)

Defendant also claims the court erred in failing to instruct 

the jury to disregard his restraints. He asserts the error was 

compounded because, although the jury had previously been 

instructed to disregard courtroom security measures, this

instruction was not repeated at the penalty phase and the jury 

was directed to disregard guilt phase instructions that were not 

repeated. The record does not support defendant’s claim, and 

any error was harmless.

The trial court’s obligation to instruct depends on visibility 

of the restraints. “In those instances when visible restraints 

must be imposed the court shall instruct the jury sua sponte that 

such restraints should have no bearing on the determination of 

the defendant’s guilt. However, when the restraints are 

concealed from the jury’s view, this instruction should not be 

given unless requested by defendant since it might invite initial 
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Opinion of the Court by Corrigan, J.

73

attention to the restraints and thus create prejudice which 

would otherwise be avoided.” (People v. Duran, supra, 16 Cal.3d 

at pp. 291-292 (Duran).) Nothing in the record demonstrates 

that defendant’s restraints were visible to the jury. Although 

the court observed that it could see a handcuff and the outline 

of the belt from its vantage point on the bench, defense counsel 

was skeptical that the jury could see the restraints. He 

preferred to avoid drawing the jury’s attention to them with an 

instruction. Because there is no evidence any juror actually saw

the stun belt or restraints, we cannot say the court erred in 

failing to give an instruction against the wishes of defendant’s 

attorney. (See Foster, supra, 50 Cal.4th at p. 1322; Ervine, 

supra, 47 Cal.4th at p. 773; People v. Livaditis (1992) 2 Cal.4th 

759, 775.) “In these circumstances, an instruction may have 

achieved the opposite result than was intended by Duran by 

calling attention to defendant’s restraints when, otherwise, the 

jury would have been unaware of them.” (People v. Lopez (2013) 

56 Cal.4th 1028, 1080 (Lopez).)

Moreover, any error in failing to instruct was clearly 

harmless. “The purpose of requiring the instruction is to 

prevent the jury from inferring that, because a defendant 

charged with a violent crime is restrained, he is ‘a violent person 

disposed to commit’ the charged crime. (Duran, supra, 16 Cal.3d 

at p. 290.) Where, however, as here, a defendant has been 

convicted of a special circumstance murder, the rationale 

requiring a sua sponte instruction is no longer applicable.” 

(Lopez, supra, 56 Cal.4th at p. 1081.) The jury had already 

convicted defendant of murdering Simon Francis in the course 

of a robbery. Under any standard, its penalty phase verdict 

would not have been affected by the absence of an instruction on 
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Opinion of the Court by Corrigan, J.

74

defendant’s restraints. (See ibid.; see also People v. Slaughter

(2002) 27 Cal.4th 1187, 1214.)

d. Ineffective Assistance of Counsel 

Defendant argues his attorney rendered constitutionally 

ineffective assistance in certain proceedings following the 

courtroom outburst. “In order to establish a claim of ineffective 

assistance of counsel, defendant bears the burden of 

demonstrating, first, that counsel’s performance was deficient 

because it ‘fell below an objective standard of reasonableness [¶] 

. . . under prevailing professional norms.’ [Citations.] Unless a 

defendant establishes the contrary, we shall presume that 

‘counsel’s performance fell within the wide range of professional 

competence and that counsel’s actions and inactions can be 

explained as a matter of sound trial strategy.’ [Citation.] If the 

record ‘sheds no light on why counsel acted or failed to act in the 

manner challenged,’ an appellate claim of ineffective assistance 

of counsel must be rejected ‘unless counsel was asked for an 

explanation and failed to provide one, or unless there simply 

could be no satisfactory explanation.’ [Citations.] If a defendant 

meets the burden of establishing that counsel’s performance was 

deficient, he or she also must show that counsel’s deficiencies 

resulted in prejudice, that is, a ‘reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’ ” (Ledesma, supra, 39 Cal.4th at 

pp. 745-746; see Strickland v. Washington (1984) 466 U.S. 668, 

687-688, 694.) Defendant fails to show that his attorney’s 

performance was constitutionally deficient or that the penalty 

verdict would have been different absent counsel’s asserted 

errors, whether considered individually or cumulatively.
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75

Defendant first argues his attorney was ineffective for 

failing to object to the use of restraints, or at least to the court’s 

decision to restrain him with both chains and a stun belt. 

However, the violence of defendant’s courtroom outburst, and 

the extreme difficulty deputies had in subduing him, made the 

legitimacy of ordering these restraints manifest. A decision not 

to pursue futile or frivolous motions does not make an attorney 

ineffective. (People v. Thompson (2010) 49 Cal.4th 79, 122.) 

Counsel wisely conceded the need for increased security 

measures and focused his efforts on advocating for the least 

visible forms of restraint. Defendant now argues having an 

armed deputy stationed behind him would have been preferable 

to the stun belt. It is difficult to conclude that such an overt 

action would have been preferable to restraints that may not 

have actually been seen by jurors. Counsel could well have 

concluded this option would emphasize defendant’s perceived 

dangerousness. A deputy standing or sitting close to him at all 

times, in stark departure from earlier practice, would surely

have been more conspicuous than a slight bulge in defendant’s 

clothing from the stun belt. As to the complaint that chains 

were used in addition to a belt, it is unclear how defendant could 

have been prejudiced by the lack of an objection because the 

record does not establish that the jury could see either type of 

restraint.

Defendant next complains his attorney did not seek 

additional instructions regarding his absence from court the day 

after the outburst. The court twice admonished the jury not to 

speculate about defendant’s absence or consider it in any way in 

reaching a decision. Defendant argues his counsel should have 

sought an instruction explaining he was “voluntarily absent 

from the courtroom for good cause.” It is unclear what this 
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Opinion of the Court by Corrigan, J.

76

phrase means, and it would likely have been just as opaque to 

the jury. Jurors might have mistakenly thought defendant had 

been excluded from court for his disruptive behavior. Defense 

counsel could reasonably have preferred the admonition that

was given. Any hints about why defendant was not present

risked emphasizing his upsetting behavior the previous day.

Finally, defendant asserts counsel should have objected to 

the prosecution’s use of the courtroom outburst as aggravating 

evidence under section 190.3, factor (b). Such an objection 

would have been futile because defendant’s conduct was 

admissible. Section 190.3, factor (b) directs the jury to consider, 

at the penalty phase of a capital case, the “presence or absence 

of criminal activity by the defendant which involved the use or 

attempted use of force or violence or the express or implied 

threat to use force or violence.” Defendant struggled violently 

with the nine deputies who tried to subdue him, injuring some 

of them in the confrontation. This conduct constituted criminal 

assault and battery and manifestly “involved the use or 

attempted use of force or violence.” (§ 190.3, factor (b).) Counsel 

was not ineffective for failing to raise a futile objection to this 

relevant aggravating evidence. (See People v. Thompson, supra, 

49 Cal.4th at p. 122.)

2. Victim Impact Evidence 

Simon Francis had been married less than two months 

when he was murdered. Over defendant’s objection, the court 

admitted a redacted videotape of Francis’s wedding during the 

penalty phase of trial. The prosecutor played a four-minute 

excerpt, which shows Francis having cake, throwing the bride’s 

garter, and dancing to the song “Tequila.” Defendant claims the 

court abused its discretion in admitting the videotape because it 
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Opinion of the Court by Corrigan, J.

77

was cumulative of other evidence and likely to provoke an 

irrational response, especially considered in juxtaposition with 

the surveillance video of the crime. The redacted videotape was 

properly admitted.

“The federal Constitution bars victim impact evidence 

only if it is ‘so unduly prejudicial’ as to render the trial 

‘fundamentally unfair.’ ([Payne v. Tennessee (1991) 501 U.S. 

808, 825.]) State law is consistent with these principles. Unless 

it invites a purely irrational response from the jury, the 

devastating effect of a capital crime on loved ones and the 

community is relevant and admissible as a circumstance of the 

crime under section 190.3, factor (a).” (Lewis and Oliver, supra, 

39 Cal.4th at pp. 1056-1057; see People v. Pollock (2004) 32 

Cal.4th 1153, 1180.)

Victim impact evidence presented through videotape “may 

be relevant to the penalty determination, because it 

‘humanize[s] [the victim], as victim impact evidence is designed 

to do.’ (People v. Kelly (2007) 42 Cal.4th 763, 797.)” (People v. 

Dykes (2009) 46 Cal.4th 731, 784 (Dykes).) It can also sometimes 

be problematic. (See, e.g., People v. Sandoval (2015) 62 Cal.4th 

394, 442.) We have advised trial courts to “exercise great 

caution in permitting the prosecution to present victim-impact 

evidence in the form of a lengthy videotaped or filmed tribute to 

the victim. Particularly if the presentation lasts beyond a few 

moments, or emphasizes the childhood of an adult victim, or is 

accompanied by stirring music, the medium itself may assist in 

creating an emotional impact upon the jury that goes beyond 

what the jury might experience by viewing still photographs of 

the victim or listening to the victim’s bereaved parents.” (People 

v. Prince (2007) 40 Cal.4th 1179, 1289.) That said, “[t]here is no 

bright-line rule pertaining to the admissibility of videotape 
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Opinion of the Court by Corrigan, J.

78

recordings of the victim at capital sentencing hearings. (People 

v. Prince, supra, 40 Cal.4th at p. 1288.) We consider pertinent 

cases in light of the general understanding that the prosecution 

may present evidence for the purpose of reminding the 

sentencer that ‘ “the victim is an individual whose death 

represents a unique loss to society and in particular to his 

family” ’ (Payne[ v. Tennessee], supra, 501 U.S. at p. 825), but 

that the prosecution may ‘not introduce irrelevant or 

inflammatory material’ that ‘ “ ‘diverts the jury’s attention from 

its proper role or invites an irrational, purely subjective 

response.’ ” ’ (People v. Edwards [(1991)] 54 Cal.3d [787,] 836.)” 

(Dykes, at p. 784.)

The four-minute wedding video shown here resembles 

other videotape evidence held permissible. In Dykes, for 

example, the prosecutor played a videotape of the victim and his 

family visiting Disneyland. (Dykes, supra, 46 Cal.4th at p. 783.) 

We approved of the trial court’s precautions, which included 

reviewing the videotape itself and requiring that its audio track 

be deleted. (Id. at p. 784.) After viewing that tape ourselves, we 

observed that it showed only “ordinary activities” and family 

interactions. (Id. at p. 785.) “The videotape is an awkwardly 

shot ‘home movie’ depicting moments shared by [the victim]

with his family shortly before he was murdered. The videotape 

does not constitute a memorial, tribute, or eulogy; it does not 

contain staged or contrived elements, music, visual techniques 

designed to generate emotion, or background narration; it does 

not convey any sense of outrage or call for vengeance or 

sympathy; it lasts only eight minutes and is entirely devoid of 

drama; and it is factual and depicts real events.” (Ibid.) In 

People v. Brady (2010) 50 Cal.4th 547, 579 (Brady), we upheld 

the admission of a four-minute videotape of the victim 
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Opinion of the Court by Corrigan, J.

79

celebrating Christmas with his family, only two days before he 

was murdered. And in People v. Vines (2011) 51 Cal.4th 830, 

888 (Vines), it was not error it admit a five-minute videotape “of 

‘home movie’ quality” that showed the victim singing, dancing, 

and rapping with family members and in a high school 

performance.

The videotape here was similar. Although shot by a 

wedding videographer, its quality resembles a “home movie” 

more than a professional production. It depicts a real event in 

the victim’s life, shortly before his murder. It is “not enhanced 

by narration, background music, or visual techniques designed 

to generate emotion,” nor does it “convey outrage or call for 

vengeance or sympathy.” (Brady, supra, 50 Cal.4th at p. 579.) 

It is a standard wedding video. It humanizes the murder victim 

but contains nothing that would divert the jury from its proper 

function. (See Vines, supra, 51 Cal.4th at p. 888.) Defendant 

complains the videotape was cumulative of other evidence 

because a bridesmaid testified that the victim had married 

shortly before his death. However, the videotape conveyed more 

than the simple fact of the victim’s marriage. The prosecution 

was entitled to show the jury what the victim was like and 

convey the loss suffered by his friends and family. (See Vines, 

at p. 888; Brady, at p. 579.)

Defendant contends the wedding videotape was especially 

problematic because the jury also saw a videotape that captured 

surveillance footage of the victim’s death. Beyond asserting the 

point, however, defendant does not explain why the mere 

existence of other evidence in the same format would have a 

“synergistic effect” rendering the videotape prejudicial.

Although video footage juxtaposing the victim in life and in 

death might create prejudice in some circumstances, here the 
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Opinion of the Court by Corrigan, J.

80

trial court took steps to ensure that the wedding video would not 

inflame the jury’s emotions. The court first required the 

prosecutor to reduce the videotape’s length. It carefully 

reviewed the edited portion and ordered the prosecutor to 

remove a segment that showed the bride receiving communion 

during the ceremony. Finally, the court instructed the jury that 

the videotape, along with other victim impact evidence, “ha[d] 

been introduced for the purpose of showing the specific harm 

caused by defendant’s crime” and could “not be considered . . . to 

divert your attention from your proper role of deciding whether 

or not the defendant should live or die. You must face this 

obligation soberly and rationally, and you may not impose the 

ultimate sanction as a result of an irrational, purely subjective 

response to emotional evidence.” The court exercised 

appropriate caution and ensured that the videotape was not 

overly emotional or inflammatory. Its admission of the tape was 

not an abuse of discretion.

3. “Gangsta Rap” During Carver’s Assault 

While describing defendant’s assault on Patrick Carver, 

Lawrence Smith testified that defendant asked a friend “to put 

on a gangsta rap tape named Dr. Dre.” Defendant said, “ ‘You 

know how I get when I hear my Dre.’ ” Once the music was 

playing, defendant confronted Carver. Defendant now argues 

the court abused its discretion and violated due process in 

overruling his objections to this testimony about “gangsta rap.” 

The evidence was relevant and not unduly prejudicial.

The court did not abuse its discretion in allowing the 

witness’s brief reference to “gangsta rap.” As we have explained, 

the court’s discretion to exclude evidence under Evidence Code 

section 352 is somewhat narrower at the penalty phase than at 
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81

the guilt phase of trial. (See People v. Jablonski (2006) 37 

Cal.4th 774, 834-835.) The prosecution is entitled to present a 

full picture of the circumstances surrounding a defendant’s prior 

criminal acts under section 190.3, factor (b). (Jablonski, at 

pp. 834-835; see Virgil, supra, 51 Cal.4th at p. 1276.) 

Defendant’s request of a soundtrack for his beating of Carver 

showed the callousness of his crime.

Defendant relies on various cases precluding admission of 

evidence about a defendant’s gang membership, but these cases 

are inapposite. No evidence suggested that defendant was 

active in or involved with criminal street gangs. Nor was the 

jury likely to draw this inference from his musical selection.

4. Constitutionality of Death Penalty Law 

Defendant raises several challenges to the 

constitutionality of California’s capital sentencing scheme. This 

court has previously rejected all of these claims, and we do so 

again. Specifically, we continue to hold the following:

“Section 190.2 adequately narrows the category of deatheligible defendants and is not impermissibly overbroad under 

the requirements of the Fifth, Sixth, Eighth and Fourteenth 

Amendments to the United States Constitution.” (Winbush, 

supra, 2 Cal.5th at p. 488; see People v. Wall (2017) 3 Cal.5th 

1048, 1072.) Section 190.3, factor (a), directing the jury’s

consideration to circumstances of the crime, does not result in 

an arbitrary and capricious imposition of the death penalty. 

(People v. Thompson (2016) 1 Cal.5th 1043, 1129; see People v. 

Salazar (2016) 63 Cal.4th 214, 255.) “ ‘ “Defendant’s argument 

that a seemingly inconsistent range of circumstances can be 

culled from death penalty decisions proves too much. What this 

reflects is that each case is judged on its facts, each defendant 
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Opinion of the Court by Corrigan, J.

82

on the particulars of his offense. Contrary to defendant’s 

position, a statutory scheme would violate constitutional limits 

if it did not allow such individualized assessment of the crimes 

but instead mandated death in specified circumstances.” ’ ” 

(Winbush, at p. 489.)

“The federal Constitution does not require that the court 

designate which factors are aggravating or mitigating, or 

instruct the jury that certain factors are relevant only in 

mitigation.” (Winbush, supra, 2 Cal.5th at p. 490.) Moreover, 

the use of restrictive adjectives such as “extreme” and 

“substantial” in section 190.3’s description of mitigating 

circumstances does not impermissibly limit the jury’s 

consideration of mitigating factors. (People v. Rices (2017) 4 

Cal.5th 49, 94; see People v. Jones (2017) 3 Cal.5th 583, 620 

(Jones).)

The death penalty is not unconstitutional for failing to 

require “findings beyond a reasonable doubt that an 

aggravating circumstance (other than Penal Code section 190.3, 

factor (b) or (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; see Winbush, supra, 2 Cal.5th at p. 489; People v. Clark

(2016) 63 Cal.4th 522, 643-644.) “This conclusion is not altered 

by the decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 

(Apprendi), Ring v. Arizona (2002) 536 U.S. 584, and Hurst v. 

Florida (2016) 577 U.S. __ [193 L.Ed.2d 504, 136 S.Ct. 616]

(Hurst).” (People v. Henriquez (2017) 4 Cal.5th 1, 45 

(Henriquez).)

“The jury may properly consider evidence of unadjudicated 

criminal activity involving force or violence under factor (b) of 
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Opinion of the Court by Corrigan, J.

83

section 190.3 and need not make a unanimous finding on 

factor (b) evidence.” (People v. Clark, supra, 63 Cal.4th at 

p. 644; see Jones, supra, 3 Cal.5th at p. 617-618.) The use of 

unadjudicated criminal activity as an aggravating factor does 

not violate a defendant’s right to due process or a jury trial. 

(Winbush, supra, 2 Cal.5th at p. 489.)

“The federal Constitution does not require that a burden 

of proof be placed on the prosecution at the penalty phase. 

[Citation.] ‘Unlike the guilt determination, “the sentencing 

function is inherently moral and normative, not factual” 

[citation] and, hence, not susceptible to a burden-of-proof 

quantification.’ [Citation.] The trial court did not err in failing 

to instruct the jury that the prosecution had the burden of 

persuasion regarding the existence of aggravating factors or the 

appropriateness of the death penalty. [Citation.] ‘Nor is an 

instruction on the absence of a burden of proof constitutionally

required.’ ” (Jones, supra, 3 Cal.5th at p. 619.) “On the 

contrary, trial courts should not instruct on any burden of proof 

or persuasion at the penalty phase because sentencing is an 

inherently moral and normative function, and not a factual one 

amenable to burden of proof calculations.” (Winbush, supra, 2 

Cal.5th at p. 489.)

“The lack of written findings by the jury during the 

penalty phase does not violate the federal Constitution or 

deprive a capital defendant of meaningful appellate review.”

(Winbush, supra, 2 Cal.5th at p. 490; see Henriquez, supra, 4 

Cal.4th at p. 46.) Nor does the federal Constitution require 

intercase proportionality review, assessing the relative 

culpability of defendant’s case compared to other murders. 

(Winbush, at p. 490; Jones, supra, 3 Cal.5th at p. 620.) The

death penalty statute does not violate equal protection by 
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Opinion of the Court by Corrigan, J.

84

providing different procedural safeguards to capital and

noncapital defendants. (Henriquez, at p. 46; People v. 

Thompson, supra, 1 Cal.5th at p. 1130.) Finally, we have 

repeatedly held that California’s use of the death penalty does 

not violate international norms or evolving standards of decency 

in violation of the Eighth and Fourteenth Amendments. (People 

v. Thompson, at p. 1130; see Henriquez, at p. 47; Winbush, at 

p. 490.)

D. Cumulative Error

Defendant claims that even if errors at the guilt and 

penalty phases were individually harmless, they were 

cumulatively prejudicial. We assumed error in the admission of 

testimony arguably conveying the substance of a hearsay 

declarant’s out-of-court identification and in defendant’s 

absence during one day of the penalty phase trial. Each of these 

assumed errors was harmless, as were any other possible errors 

we contemplated. No cumulative prejudicial effect warrants

reversal. (See Bolden, supra, 29 Cal.4th at pp. 567-568.)
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Opinion of the Court by Corrigan, J.

85

III. DISPOSITION

The judgment is affirmed.

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J. 

LIU, J. 

CUÉLLAR, J.

KRUGER, J. 

GROBAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Bell

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S080056

Date Filed: May 2, 2019

__________________________________________________________________________________

Court: Superior

County: Stanislaus

Judge: David G. Vander Wall

__________________________________________________________________________________

Counsel:

Melissa Hill, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Sean M. McCoy and 

William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Melissa Hill

P.O. Box 2758

Corrales, NM 87048

(505) 898-2977

William K. Kim

Deputy Attorney General

2550 Mariposa Mall, Room 5090

Fresno, CA 93721

(559) 477-1675