The PEOPLE, Plaintiff and Respondent, v. Anthony Gilbert DELGADO, Defendant and Appellant., 214 Cal. Rptr. 3d 223

Corrigan, J. Defendant, Anthony Gilbert Delgado, killed two fellow inmates while serving a 25-year-to-life sentence in Corcoran State Prison. A jury convicted him of two counts of first degree murder, with the special circumstances of lying in wait and multiple murders; two counts of assault by a life prisoner with malice aforethought, with findings that the assaults proximately caused the victims' deaths; battery by a prisoner on a correctional officer; and possession of a sharp instrument by a prisoner. It also found he had suffered two prior felony convictions within the meaning of the "Three Strikes" law.

The jury returned a death verdict and the trial court entered a conforming judgment, as well as two consecutive terms of 25 years to life for the battery and weapon possession counts. This appeal is automatic. We affirm the judgment in its entirety. I. FACTS A. Guilt Phase 1. Murder of Frank Mendoza On September 30, 1998, defendant and Frank Mendoza shared a cell. Around 11:15 p.m., an officer noted that both men were lying on their bunks watching television. About 25 minutes later, defendant called out, and Officer Carmona went to investigate. He saw Mendoza slumped forward on his knees between the two beds.

Defendant calmly walked over to Mendoza, lifted him up by a cloth wrapped around his neck, and dropped him back to the ground. Mendoza had been strangled to death. A pillowcase covered his face, secured by a torn bed sheet. A white sock and second torn sheet were tied around his mouth. Written on the back of Mendoza's T-shirt were the words: "There's consequences to everything. He paid his and I'm to pay mine, too. Toro." Defendant gave a taped statement about the killing and reenacted the crime.

Mendoza had verbally abused defendant and bragged about his prior status as a lieutenant in the Nuestra Familia prison gang. Defendant warned he would "take [Mendoza] out" if he continued this behavior. Mendoza persisted, so defendant decided to kill him. Already serving a life sentence, defendant had nothing more to lose. Defendant "knew exactly when [he] was going to do it." After nighttime cell check, he covered the overhead light and wedged paper in the cell door to prevent entry. Mendoza seemed nervous, so defendant watched television to put him at ease.

When the opportunity arose, defendant choked his victim for over four minutes, which he timed. Mendoza struggled, but eventually defendant could "fe[el] the life come out of him." Defendant tied a sheet and a sock around his neck, pulling it as tight as he could. He watched Mendoza for a while to make sure he was dead. Defendant felt no remorse. He said Mendoza "had it coming." He wrote a message on Mendoza's T-shirt and watched more television. He then removed the paper from the door and alerted the guards. 2.

Murder of Kevin Mahoney On July 2, 1999, defendant and inmate Kevin Mahoney, Jr., were placed in an exercise yard together. About two hours later, a security alarm summoned Officer Robert Todd to the yard. Mahoney was lying facedown in a pool of blood. He had no pulse or respiration. There were lacerations and bruises on his face and body, and a subdural hemorrhage at the back of his head. Two T-shirts were tied around his neck. A nearby wall bore blood splatters and a "happy face" drawn in blood. Defendant's feet and legs were covered in blood.

While waiting in a holding cell, defendant told one officer, "You guys gave me Three Strikes on some chicken shit fight, so now I'm going to earn mine. I got two now, and I got one more to go." A surveillance tape captured the attack. When defendant and Mahoney were placed in the yard, they shook hands, then walked and sat separately for several minutes. Later they walked together. Approximately 52 minutes after they entered the yard, defendant attacked Mahoney without warning, punching and kicking him repeatedly for about 30 seconds. After the attack, Mahoney sat on the ground as defendant paced back and forth.

Defendant attacked again about 12 minutes later, striking Mahoney several times in the head with a shoe. Mahoney remained seated; defendant continued to pace. A third attack occurred about 27 minutes after the second. Defendant grabbed Mahoney from behind and dragged him into a shadowy corner. He choked his victim for over four minutes, then picked up a T-shirt and tied it around Mahoney's neck. Defendant resumed pacing, repeatedly returning to the body and stomping on it. Mahoney was strangled to death. His blunt force injuries were consistent with having suffered repeated blows.

Again, defendant gave a taped statement and reenacted the crime. He decided to kill Mahoney as soon as they were put in the yard together, and put him at ease by telling him that he wanted no trouble. Defendant judged Mahoney an "[e]asy" mark. Defendant had planned to lunge at his victim and snap his neck, but he was unable to grip him securely. He resorted to punching and kicking instead. Defendant attacked Mahoney three times "until I was able to get him in a choke hold and drag him off into the corner.

And that's where I wanted him." Defendant explained that he moved Mahoney to that location because it would be more difficult for guards to shoot him. He choked the struggling man until he stopped breathing, then tied torn T-shirts around his neck. Defendant could hear Mahoney "gurgling in his [own] blood" which angered him. Intent on "caus [ing] as much injury ... as I could," he used his foot to repeatedly slam Mahoney's head into the concrete.

Defendant told an investigator, "I did it so what, what can you do to me[?] No one can do nothing to me." As to motive, he said: "I've [sic ] snapped when ... they gave me life for that stupid ass shit ... a little over a[ ] year and a half ago. When they gave me three strikes for that shit, I told myself, made a deal with the devil, you give me the opportunity man to pick up each murder for each one of those strikes we're cool. So that's ... my pack [sic ] with the devil man, I already got two that's my two strikes.

I'm gonna ... earn each and every one of my strikes." He confirmed that he would kill again, saying "I hope there gonna [be] ten or fifteen" more victims. According to defendant, "My whole objective from here to now, now until I die, is to kill and to hurt, to cause as much destruction how[ ]ever, where ever, when ever. And oh as far as I'm concerned I got no more soul and I don't give [a] fuck no more. Nothing else matters to me." 3. Battery of Correctional Officer Erik Mares Between the two murders, on October 20, 1998, defendant attacked Correctional Officer Eric Mares.

As he was being handcuffed to be taken to the shower, defendant pulled away and ran to the middle of his cell with the handcuff attached to one wrist. Asked what was bothering him, defendant replied, "[T]his conversation's over and I'm taking this to the next level." Several officers assembled for a cell extraction. When they directed pepper spray into the cell, defendant rushed at the door holding his mattress to block the spray. An officer ran in, but slipped immediately because a slick substance covered the floor. A second officer also slipped and fell. Officer Mares managed to enter and grab defendant's legs.

Defendant jabbed at Mares several times with a pointed object. Another officer pried the weapon from defendant's grasp. A sharp piece of plastic with a cloth handle was recovered from the cell floor. A second piece of sharpened plastic was found on defendant's bed. Mares had puncture holes in his protective vest and cuts on his shoulder. Defendant admitted that he "[j]ust got bored," and decided to provoke a cell extraction. He had two weapons ready for the confrontation and put shampoo in front of the cell door so entering officers would lose their footing.

He admitted stabbing Officer Mares in the shoulder and trying to get "a nice good solid straight thrust, if I was to get one in the neck or somethin['] like that, it would cause serious injury. [¶] ... I could get an eye or somethin[']." 4. Aggravated Assault by a Life Prisoner Defendant was convicted of two counts of assault with a deadly weapon in 1994, and was serving a life sentence when the charged crimes occurred. B. Penalty Phase 1.

Prosecution The prosecution introduced evidence of 10 incidents between 1997 and 2000 during which defendant possessed various weapons and assaulted correctional officers or another inmate. Several of these incidents are discussed in further detail, post , at pages 44-50. Evidence also established defendant was convicted of receiving stolen property in 1986, possession of a weapon by an inmate in 1986, and second degree burglary in 1990. 2. Defense The youngest of nine children sired by four different fathers, defendant was neglected and abused by his alcoholic mother.

As an infant, he was often left crying, soiled, and hungry after his mother passed out. His 11-year-old sister frequently assumed his care. As defendant got older, his mother would tie his hands and lock him in a dark closet for extended periods. She beat him often with a broom or a belt. She sometimes made him kneel on grains of rice, which cut his bare knees. The family had little to eat, but his mother punished him if he accepted food from neighbors. Defendant's cousin, Inocencio Ortega, recalled defendant's mother beating him and locking him in the closet. Defendant sometimes hid at Ortega's house to escape.

Once defendant's older brothers gave him glue to sniff. Defendant was removed from his mother's care at about seven years old. When he was 11, he lived for over a year in a group home. Defendant had scars on his wrists that resembled ligature marks. Slight of build, he was self-protective. He exhibited low self-esteem and would destroy his things when he was upset or frustrated. His fifth grade teacher described him as bright, funny, and trustworthy. He responded well when treated with respect, but had a temper and lacked social skills.

He would frequently push and shove other children because he did not know how to communicate. Told his behavior was inappropriate, he improved and became popular with his classmates. II. DISCUSSION A. Guilt Phase Issues 1. Presence of Correctional Officers During Attorney-Client Communications After killing Kevin Mahoney, defendant vowed in an interview that he would kill again. (See 214 Cal.Rptr.3d 233 - 234, 389 P.3d 813 - 814.) Concerned for defense counsel's safety, and with her express agreement, the trial court ordered two correctional officers to be present during all attorney-client consultations.

They were bound by the attorney-client privilege. Defendant contends that the trial court exceeded its jurisdiction by accepting the parties' stipulation and purporting to extend the attorney-client privilege to the correctional officers, who were unnecessary to the consultation. He criticizes the court for failing to consider alternative arrangements, such as physical restraints, that would have accomplished the same goal without jeopardizing confidentiality.

He argues that the court-sanctioned intrusion deprived him of his federal and state constitutional rights to counsel, to present a defense, to be present during all proceedings, and to fundamental due process. He contends that the error was structural and reversible without a showing of prejudice. We reject his claims. a. Proceedings Below On August 6, 1999, the court held an in-chambers meeting with the prosecutor and prospective Defense Counsel Donna Tarter. The prosecutor observed that defendant had already killed two people and that he had reason to believe defendant would kill again.

Voicing concerns for Tarter's safety, the prosecutor suggested that two correctional officers be present at all attorney-client meetings and that they be bound by the attorney-client privilege as to anything they might overhear. Tartar agreed, and the court made the order to the two correctional officers present. Thereafter, Tartar met privately with defendant and was appointed by the court to represent him. Initially, there was no discussion of the court's order in open court in defendant's presence.

On December 22, 1999, while defendant was present in open court, the prosecutor explained the security arrangements: "any communications that are overheard between Ms. Tarter and Mr. Delgado during any of the court proceeding [s] or when she is visiting him are to be encompassed within the attorney-client privilege.

Given the nature of this case, we've personally given that privilege to officers Masters and [Klose] so that they may be present during all communications just for the safety of all parties." Defense counsel stated her agreement, and the trial court expressly admonished the officers "that you're each ordered not to disclose any information you might overhear in any of those conversations to anyone, including family members, coworkers, anyone." Both officers affirmed their understanding. Defendant voiced no objection.

During trial, three correctional officers were stationed near defendant, one on either side and one directly behind. The record is not entirely clear if defendant and defense counsel sat next to each other or if a correctional officer sat between them. Defendant's hands were unrestrained so that he could write notes to counsel. Defense counsel expressly agreed to these security arrangements. From the time he was first arraigned, defendant appeared personally in court approximately 23 times during pretrial and trial proceedings.

He never complained to the court about the presence of officers at confidential attorney-client meetings. On April 14 and May 2, 2000, before trial began, the court inquired of defendant personally if there was any reason the trial could not go forward. He stated there was none. Defense counsel likewise answered ready for trial. Periodically thereafter, the court inquired of defense counsel if she had any objections or concerns. She, too, voiced no concern about the presence of officers at attorney-client meetings or in the courtroom.

Here, defendant advances both statutory and constitutional challenges to the court's order. b. Attorney-Client Privilege and the Need for the Ordered Security Measures Citing Evidence Code

section 952, defendant argues that the correctional officers' presence destroyed the confidentiality of his attorney-client communications because it was not reasonably necessary to further the purpose of the legal consultation. (See Evid. Code, § 952 ; Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1503, 66 Cal.Rptr.3d 833 (Zurich ).) He reasons that there was no showing of a security risk to defense counsel, and that other measures, such as physical restraints, would have been adequate.

He contends that the parties were not authorized to extend the attorney-client privilege by stipulation, and that the trial court acted in excess of its jurisdiction in accepting the stipulation. These claims have been forfeited. Defense counsel expressly agreed to the officers' presence at attorney-client meetings to ensure her safety, and both parties stipulated that the officers would be bound by the privilege. In the trial court, neither party challenged the necessity for the measures or the legality of the stipulation.

Under these circumstances, defendant may not be heard to argue for the first time on appeal that the arrangement was unnecessary and that the privilege was destroyed. (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 696-697, 145 Cal.Rptr.3d 748 ; see generally Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534.) Nor may he argue that the trial court abused its discretion in failing to devise a different solution. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 389, 178 Cal.Rptr.3d 185, 334 P.3d 573 (Bryant ); People v.

Montes (2014) 58 Cal.4th 809, 843, 169 Cal.Rptr.3d 279, 320 P.3d 729 ; People v. Duran (1976) 16 Cal.3d 282, 289, 127 Cal.Rptr. 618, 545 P.2d 1322 ). Similarly, defendant's jurisdiction argument is undermined by the absence of a challenge below. (See People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6, 122 Cal.Rptr.2d 326, 49 P.3d 1067 [acts in excess of jurisdiction are subject to waiver and forfeiture].) Defendant argues that he should not be bound by his counsel's stipulation, which occurred before she was formally appointed. The timing here was immaterial.

The stipulation was made to facilitate counsel's appointment. Counsel was appointed shortly thereafter, whereupon the stipulation became effective for all subsequent attorney-client meetings. There was one brief consultation in the interim. However, even if that meeting was outside the stipulation for purposes of our forfeiture analysis, defendant fails to identify anything of consequence that occurred to support his claims of error. In addition, nothing prevented counsel from revisiting the terms of the stipulation after speaking with defendant.

Defendant counters the record does not reveal whether or not counsel told him about the arrangement extending the attorney-client privilege to the attending officers. We will not presume counsel's omission. It is defendant's burden to show that counsel performed deficiently, by developing the record on habeas corpus if necessary. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859 (Pope ), overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, 25 Cal.Rptr.2d 867, 864 P.2d 40 ; see generally People v.

Fosselman (1983) 33 Cal.3d 572, 581-582, 189 Cal.Rptr. 855, 659 P.2d 1144.) Defendant further argues that counsel could not be counted on to object on his behalf to an order made solely for counsel's benefit and contrary to his rights and interests. His only authority involves a failure to object to an award of attorney's fees, a circumstance that is readily distinguishable. (Cf. People v. Viray (2005) 134 Cal.App.4th 1186, 1214, 36 Cal.Rptr.3d 693.) Security risks occur with some frequency, and do not invariably create a conflict of interest for counsel.

Defendant points to no evidence in the record that counsel labored under an actual conflict that adversely affected her performance. (Cuyler v. Sullivan (1980) 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333.) On the contrary, counsel agreed to the arrangement only after receiving express assurances from the prosecution that it would not compromise the attorney-client privilege. Nor does defendant demonstrate that the potential risk to counsel's safety caused her to perform deficiently. (Strickland v.

Washington (1984) 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674.) Further, it is not accurate to say the arrangement was made solely for counsel's benefit. Defendant was entitled to counsel. His own statements and admitted conduct made securing willing and capable counsel uniquely difficult. The court's action was taken to ensure that defendant's right to counsel was honored. Even were we to overlook defendant's forfeiture and reach the merits, there is no basis for relief. Evidence Code

section 954 affords the client "a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer." (Zurich , supra , 155 Cal.App.4th at p. 1494, 66 Cal.Rptr.3d 833.) Absent actual disclosure, or a demand for disclosure, the statute is simply not implicated. (People v.

Alexander (2010) 49 Cal.4th 846, 887, 113 Cal.Rptr.3d 190, 235 P.3d 873 (Alexander ).) In Alexander , we rejected the defendant's claim that a police detective's interception and recording of a three-way call between the defendant, his mother, and a defense investigator violated the statutory attorney-client privilege. We reasoned: "Defendant has made no showing that any witness disclosed any information from the call during the proceedings in violation of Evidence Code

section 954. Indeed, substantial evidence supports the trial court's findings that the call's contents were not disclosed to the prosecutors." ( Id . at p. 887, 113 Cal.Rptr.3d 190, 235 P.3d 873, fn. omitted.) Likewise here, the prosecutor did not seek to discover or offer evidence of confidential communications. Additionally, there is no evidence that the officers ignored the admonition by disclosing confidential communications to anyone. In short, nothing before us indicates the officers' presence violated defendant's rights.

We likewise reject defendant's challenge to the necessity of the security arrangements, and the availability of less intrusive alternatives. "In general, the 'court has broad power to maintain courtroom security and orderly proceedings' [citation], and its decisions on these matters are reviewed for abuse of discretion." (People v. Lomax (2010) 49 Cal.4th 530, 558, 112 Cal.Rptr.3d 96, 234 P.3d 377 (Lomax ).) Given that defendant had killed two people with his bare hands and had vowed to kill again, the trial court did not abuse its discretion by adopting the parties' proposed solution to a clear security problem.

We emphasize, however, that we do not suggest such measures are necessary or appropriate in every circumstance. Ordering law enforcement officers to be present at attorney-client meetings is an unorthodox solution with obvious potential pitfalls. We hold only that, under these extreme circumstances, the court did not abuse its discretion. Trial courts are well advised to fashion security measures tailored to minimize the risk of intrusion on the defendant's constitutional rights. With these observations in mind, we turn to defendant's Sixth Amendment claim. c.

Deprivation of the Right to Counsel Defendant argues that the right to confidential communications is "absolute and essential to both the federal and state right to representation by counsel." (Citing In re Rider (1920) 50 Cal.App. 797, 799, 195 P. 965.) According to defendant, the officers involved here were members of the prosecution team, and their presence during attorney-client consultations destroyed confidentiality despite the parties' stipulation to the contrary.

Defendant claims that the officers' presence had a chilling effect on his communications with counsel and his defense preparation, resulting in a "wholesale evisceration" of his right to counsel under both the Sixth Amendment and

article I,

section 15 of the California Constitution. These circumstances, he argues, were "tantamount to a failure to appoint counsel at all," and amounted to structural error. The appellate record fails to support defendant's claims of error. As explained in Alexander , supra , 49 Cal.4th 846, 113 Cal.Rptr.3d 190, 235 P.3d 873, the federal Constitution does not protect confidential communications between a defendant and his attorney for their own sake. "No federal constitutional provision ... establishes an attorney-client communication privilege.

Rather, the Sixth Amendment guarantees a criminal defendant the right to 'assistance of counsel for his defense.' (U.S.

Const., 6th Amend.) Confidential communication between a defendant and his lawyer is itself not a separate 'right' that the federal Constitution guarantees, but rather an aspect of ensuring fulfillment of the right to assistance of counsel." (Alexander , supra , 49 Cal.4th at pp. 887-888, 113 Cal.Rptr.3d 190, 235 P.3d 873.) Alexander held that interception of attorney-client communications does not constitute a complete denial of the right to counsel. (Alexander , supra , 49 Cal.4th at p. 888, 113 Cal.Rptr.3d 190, 235 P.3d 873.) Citing Weatherford v.

Bursey (1977) 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (Weatherford ), we explained that the Supreme Court had "rejected a per se rule that ' "whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial." ' " (Alexander , at p. 888, 113 Cal.Rptr.3d 190, 235 P.3d 873, quoting Weatherford , at p. 549, 97 S.Ct. 837.) The high court made clear that "unless the record supports 'at least a realistic possibility of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment violation.' " (Alexander , at p. 888, 113 Cal.Rptr.3d 190, 235 P.3d 873, quoting Weatherford , at p. 558, 97 S.Ct. 837.) Accordingly, we look to Weatherford , supra , 429 U.S. 545, 97 S.Ct. 837, to evaluate defendant's Sixth Amendment claim.

Weatherford was an undercover agent for a state law enforcement agency. He vandalized a local office of the Selective Service with Bursey and two others. To maintain his undercover status, Weatherford was arrested and charged along with Bursey. Before trial, Weatherford was invited to two meetings where Bursey and his attorney discussed defense tactics. Weatherford did not share the details of these meetings with anyone. However, he did testify at Bursey's trial regarding his own undercover activities and Bursey's act of vandalism.

After Bursey was convicted, he filed a civil rights action against Weatherford and his supervisor under 42 United States Code

section 1983, alleging that he had been deprived of his Sixth Amendment right to the assistance of counsel. (Weatherford , at pp. 547-549, 97 S.Ct. 837.) In evaluating the Sixth Amendment claim, the high court rejected the notion that a constitutional violation can be made out "whenever conversations with counsel are overheard" by a government agent. (Weatherford , supra , 429 U.S. at p. 551, 97 S.Ct. 837.) Rather, the court held that "the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial." (Id . at p. 552, 97 S.Ct. 837.) The court identified several relevant factors, including whether: (1) a witness testifies at trial about the confidential conversations; (2) any of the state's evidence originated in these conversations; (3) the conversations were communicated to the prosecutor; or (4) the conversations were used in any other way to the defendant's substantial detriment. (Id . at p. 554, 97 S.Ct. 837.) The court noted that "[n]one of these elements is present here....

Weatherford's testimony for the prosecution about the events of March and April 1970 revealed nothing said or done at the meetings ... that he attended. None of the State's evidence was obtained as a consequence of Weatherford's participation in those meetings." (Id . at p. 555, 97 S.Ct. 837, fn.omitted.) Further, the district court expressly found that Weatherford had not communicated anything about the meeting to either his superiors or the prosecution. (Id . at p. 556, 97 S.Ct. 837.) Applying the Weatherford factors to defendant's claim, he fails to establish a constitutional violation.

The officers who provided security were expressly admonished not to reveal the content of any overheard conversations to anyone . Again, there is no evidence they disregarded the court's admonishment by disclosing confidential communications. Nor did the officers testify regarding any attorney-client conversation. Finally, defendant fails to identify any evidence allegedly developed as a result of the correctional officers' presence. It is defendant's obligation to make such a record. (People v.

Ervine (2009) 47 Cal.4th 745, 770, 102 Cal.Rptr.3d 786, 220 P.3d 820 (Ervine ).) Citing Ervine , supra , 47 Cal.4th 745, 102 Cal.Rptr.3d 786, 220 P.3d 820, defendant argues that a Sixth Amendment violation can be predicated on a showing that confidential attorney-client information was intercepted by any member of the prosecution team.

He argues that the officers who provided security at attorney-client meetings and in court were part of the prosecution team because the California Department of Corrections and Rehabilitation (CDCR) investigated the charged crimes and conducted the cell extractions introduced as circumstances in aggravation. Relying on cases that interpret the scope of the prosecution team for purposes of statutory discovery and the disclosures mandated by Brady v.

Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (Brady ), defendant argues that "[b]ecause in this case all attorney-client conferences were conducted in the close proximity of [CDCR] employees, there can be no dispute that confidential information was actually communicated to the prosecution team." (Citing In re Steele (2004) 32 Cal.4th 682, 696-697, 10 Cal.Rptr.3d 536, 85 P.3d 444 ; People v.

Superior Court (Barrett ) (2000) 80 Cal.App.4th 1305, 1317, 96 Cal.Rptr.2d 264 [concluding that CDCR has a "hybrid status" when it both provides administrative and security functions in housing felons and investigates crimes committed in the prison].) First, we note that defendant's bald assertion that confidential communications were actually revealed is purely speculative. Further, defendant reads too much into Ervine . There, Sacramento County jail personnel entered the defendant's cell while he was in court and read his confidential defense documents.

None of that information was communicated to the chief assistant Attorney General who prosecuted the case, or to the Lassen County District Attorney. (Ervine , supra , 47 Cal.4th at p. 763, 102 Cal.Rptr.3d 786, 220 P.3d 820.) Applying Weatherford , supra , 429 U.S. 545, 97 S.Ct. 837, we concluded the lack of evidence that the sheriff's department "communicated any confidential information to anyone" defeated defendant's Sixth Amendment claim. (Ervine , at p. 765, 102 Cal.Rptr.3d 786, 220 P.3d 820.) To support this conclusion, we drew an analogy to the scope of liability under Brady (see Ervine , at p. 768, 102 Cal.Rptr.3d 786, 220 P.3d 820 ), and observed that "[t]he agency responsible for intruding on defendant's relationship with his attorney (the Sacramento County Sheriff's Department) was completely unrelated to the agency actually prosecuting defendant (the Lassen County District Attorney's Office)" (id . at p. 767, 102 Cal.Rptr.3d 786, 220 P.3d 820 ).

Nonetheless, because the relationship between the agencies in Ervine was tangential, we were not called upon to consider what degree of association would be sufficient to establish a Sixth Amendment violation based on receipt of confidential attorney-client information by a government actor other than the prosecutor. Weatherford , however, did consider that question, and rejected an argument similar to the one defendant advances here. Unlike the officers in this case, Weatherford was involved in the investigation and called as a prosecution witness.

Bursey argued that Weatherford was therefore "a member of the prosecuting team whose knowledge of Bursey's trial plans was alone enough to violate Bursey's constitutional right to counsel and to vitiate Bursey's conviction. [Citation.]" (Weatherford , supra , 429 U.S. at p. 556, 97 S.Ct. 837.) The court disagreed: "Though imaginative, this reasoning is not a realistic assessment of the relationship of Weatherford to the prosecuting staff or of the potential for detriment to Bursey or benefit to the State that Weatherford's uncommunicated knowledge might pose." (Ibid . ) Rather, the court looked to whether the receipt of confidential information by persons other than the prosecutor resulted in testimony or other evidence against the defendant. (Id . at p. 554, 97 S.Ct. 837.) As noted, defendant made no such showing here.

Defendant asserts, "[b]ecause in this case all attorney-client conferences were conducted in the close proximity of [CDCR] employees," this fact "establishes a very real possibility" of injury to defendant's case. People v.

Rich (1988) 45 Cal.3d 1036, 248 Cal.Rptr. 510, 755 P.2d 960, rejected the defendant's claim that the presence of an officer during psychiatric interviews violated his right to counsel, observing that the officer "was instructed not to repeat anything he heard during the interview" and that the officer assured defense counsel that he would not do so. (Id . at p. 1099 fn. 16, 248 Cal.Rptr. 510, 755 P.2d 960.) These officers were similarly instructed, and, as noted, defendant points to nothing in the record to show they violated the court's directive.

Defendant contends that the officers' presence had a "chilling effect" on his communications with counsel and undermined his ability to assist in his defense.

He reasons that "nothing is more likely to impair the effectiveness of an attorney than the inability to communicate freely and privately with his client" and that "an attorney who will not consult in private with her client cannot be said to satisfy the requirements of the Sixth Amendment or the California Constitution." Ervine rejected a similar claim that, as an " 'inevitable consequence' " of law enforcement having reviewed his confidential legal materials, the defendant had an " 'enduring fear' " concerning his private communications with counsel, which deprived him of counsel's effective assistance. (Ervine , supra , 47 Cal.4th at p. 769, 102 Cal.Rptr.3d 786, 220 P.3d 820.) We held that "a defendant's inability to consult with counsel or to assist in his defense must appear in the record." (Ibid . ) The defendant had "fail[ed] to identify any instance in which his relationship with counsel was impaired" despite having been offered the opportunity to submit additional evidence at the time the trial court denied his motion to dismiss. (Ibid . ) "Because his claim still is not supported by any reference to the record, we must reject it." (Ibid . ) So too here.

Defendant observes that after he first met with defense counsel on August 6, 1999 in the presence of correctional officers, he told the court that he had "nothing to discuss" with counsel and that he had "no intentions to discuss anything with her." He invites us to infer from these comments that he was reluctant to speak in the presence of officers. The remark is taken out of context. Immediately before defendant's statements, the court and counsel had been discussing dates for the preliminary hearing.

Asked if he was willing to waive time, defendant responded that he wanted a preliminary hearing within 10 days so that it would be "done and over with." The court noted that 10 days would not give defense counsel time to prepare, and asked defendant, "You don't want [defense counsel] to have any time?" It was at this point that defendant responded he had nothing to discuss with counsel. Taken in totality, defendant's comments reveal an expression of his indifference to the criminal process, rather than his reluctance to discuss his case in the presence of correctional officers.

In any event, any asserted reluctance to assist counsel was short-lived. On November 20, 1999, after the preliminary hearing, defendant was arraigned. Asked if he would like to have counsel appointed, defendant responded affirmatively. He voiced no objection when the court appointed Ms. Tarter to continue her representation. He also agreed to waive time to accommodate defense counsel's requested trial dates. On December 16, 1999, defense counsel stated on the record that she had been "talking [with Mr. Delgado] for about a half an hour or so" and that she was requesting additional time to investigate the case.

On March 30, 2000, counsel conveyed defendant's request that he be allowed to view the videotape evidence.

Counsel indicated that she would be consulting with defendant at the prison and that the prison litigation staff had been "very cooperative." Defendant also asserts that, during court proceedings, "he could not whisper to his attorney, nor pass her confidential notes, without also revealing his communications to the correctional officers who were 'circling around' him, between [defendant] and attorney Tarter." The record before us is not entirely clear as to the officers' positions in court. (See 214 Cal.Rptr.3d at 235, 389 P.3d at 819.) Significantly, there is no direct evidence that the officers' presence impeded defendant's ability to whisper to counsel or pass her notes.

On the contrary, the officer in charge of courtroom security confirmed that defendant's hands would be unrestrained and he would be given a pen so that he could communicate with his attorney in writing. This circumstance does not resemble People v.

Zammora (1944) 66 Cal.App.2d 166, 152 P.2d 180, wherein reversible error was found because the 22 defendants were seated at some distance from counsel's table and were not allowed to approach or consult with counsel either during sessions or as they left the courtroom. (Id . at pp. 226-236, 152 P.2d 180.) The fact that neither defense counsel nor defendant voiced any concern about the officers' presence further undercuts his claim of a chilling effect. Although defense counsel initially agreed to the arrangement, she was certainly free to revisit the issue if it proved unworkable.

She did not thereafter object or otherwise alert the court that the arrangement negatively affected her ability to communicate with defendant. Likewise, at no time did defendant raise a concern with the court about the presence of the officers. Defendant counters that no inference may be drawn from his silence because the record does not show that counsel even told him about the arrangement. His argument is unpersuasive. First, there is no evidence that counsel failed to so advise defendant that the officers were bound by the privilege.

It is defendant's burden to show that counsel performed deficiently. (Pope , supra , 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.) Second, and significantly, defendant was present in court on December 22, 1999 when the court admonished the officers that they were bound by the privilege and expressly ordered them not to disclose any overheard communications. Thereafter, on April 14 and again on May 2, 2000, the trial court asked defendant whether there was any reason the trial could not proceed. Defendant responded that there was not.

Defendant's claimed inability to consult with counsel or assist in his defense is unsupported by any evidence in the record. (Ervine , supra , 47 Cal.4th at p. 769, 102 Cal.Rptr.3d 786, 220 P.3d 820.) Accordingly, his Sixth Amendment claim fails. (Alexander , supra , 49 Cal.4th at p. 889, 113 Cal.Rptr.3d 190, 235 P.3d 873.) Defendant fares no better with his claim that his right to counsel under

article I,

section 15 of the California Constitution was violated. Defendant cites Barber v. Municipal Court (1979) 24 Cal.3d 742, 157 Cal.Rptr. 658, 598 P.2d 818 (Barber ), which held that the right to counsel "embodies the right to private consultation with counsel" and "is violated when a state agent is present at confidential attorney-client conferences." (Id . at p. 752, 157 Cal.Rptr. 658, 598 P.2d 818.) Barber is distinguishable.

In that case, an undercover police officer posed as a codefendant and attended attorney-client meetings. (Id . at pp. 745, 748-749, 157 Cal.Rptr. 658, 598 P.2d 818.) During that time, he communicated regularly with his superior officers and disclosed that "the defense was to become more 'political.' " (Id . at p. 749, 157 Cal.Rptr. 658, 598 P.2d 818.) When petitioners learned of the breach in attorney-client confidences, they moved to dismiss the charges. (Id . at p. 745, 749-750, 157 Cal.Rptr. 658, 598 P.2d 818.) Petitioners' attorney testified that his clients became " 'paranoi[d]' " after learning that they had been infiltrated by an informant. (Id . at p. 750, 157 Cal.Rptr. 658, 598 P.2d 818.) The clients, who had once actively participated in meetings with counsel, became reluctant to speak.

They were distrustful of each other and of defense counsel's assistant. The attorney opined that his clients' ability to assist in preparing a defense had been " 'substantially impaired.' " (Ibid . ) On that record, we held that the clients were deprived of their state constitutional right to communicate privately with counsel, and that the appropriate remedy was dismissal. (Id . at p. 756, 760, 157 Cal.Rptr. 658, 598 P.2d 818.) Defendant argues that the interference here was even more pervasive than in Barber . Not so.

In Barber , some of the content of attorney-client conversations was actually relayed to other officers, and there was a demonstrated chilling effect on attorney-client communications. (Barber , supra , 24 Cal.3d at p. 756, 157 Cal.Rptr. 658, 598 P.2d 818.) Neither of those circumstances is present here. The court in Alexander , on a record similar to this case, questioned whether the defendant's state constitutional right to counsel was violated "notwithstanding broad language used in the much more egregious circumstances of Barber.

" (Alexander , supra , 49 Cal.4th at p. 895, 113 Cal.Rptr.3d 190, 235 P.3d 873 ; accord, Ervine , supra , 47 Cal.4th at p. 770, 102 Cal.Rptr.3d 786, 220 P.3d 820 [distinguishing Barber ].) Barber 's holding that a violation of the right to counsel is shown "when a state agent is present at confidential attorney-client conferences" (Barber , at p. 752, 157 Cal.Rptr. 658, 598 P.2d 818 ), must be understood in light of its facts, which differ markedly from those here.

Additionally, it is significant that " Barber involved an application for a pretrial writ of prohibition, while the present case is an appeal from a judgment of conviction and sentence." (Alexander , supra , 49 Cal.4th at p. 896, 113 Cal.Rptr.3d 190, 235 P.3d 873.) As such, this case is subject to

article VI,

section 13 of the California Constitution, which provides that "[n]o judgment shall be set aside ... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Defendant argues that the denial of confidential communications rendered counsel's appointment "a mere formality without any substance," and therefore amounted to a miscarriage of justice regardless of the evidence at trial.

A similar claim failed in Alexander , where we observed that the defendant "had counsel, and his attorney vigorously pursued his interests throughout the trial." (Alexander , at p. 896, 113 Cal.Rptr.3d 190, 235 P.3d 873.) Likewise here, defense counsel actively participated in all aspects of the trial, including jury selection, challenging evidence admissibility, cross-examining witnesses, proposing jury instructions, presenting defense witnesses at the penalty phase, and arguing vigorously against a sentence of death.

Because " 'defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.' " ( Neder v. United States (1999) 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35, quoting Rose v.

Clark (1986) 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 ; accord, Alexander , supra , 49 Cal.4th at pp. 896-897, 113 Cal.Rptr.3d 190, 235 P.3d 873.) For the same reasons that defendant has failed to prove his other constitutional claims, he has also failed to demonstrate a reasonable probability that, absent any alleged violation, the trial's outcome would have been more favorable.

"No evidence establishes the prosecution gained anything from [the officers' presence] or that the defense was affected negatively in a way that could have changed the trial's outcome." (Alexander , supra , 49 Cal.4th at p. 899, 113 Cal.Rptr.3d 190, 235 P.3d 873.) Additionally, the evidence against defendant was compelling and included his own statements and videotaped reenactments of the murders. d.

Denial of the Right to Be Present Defendant claims that his absence from the August 6 proceeding at which the court ordered that officers be present at attorney-client meetings violated his constitutional right to due process and his statutory rights (§§ 977, 1043). He claims that his presence bore a reasonable and substantial relation to his opportunity to fully defend against the charges and would have contributed to the fairness of the proceeding. According to defendant, had he been present, he could have objected to his counsel's "stipulat[ing] away" the right to private and confidential consultation.

He could have opposed the order on the grounds that it was unnecessary and that it involved officers who were coworkers of several witnesses and one of the victims in the case. Had he been present, he would have had an opportunity to reject Tarter's appointment and proceed pro se. Alternatively, had he accepted counsel's appointment, he would have been on notice that the court had extended the attorney-client privilege to the officers, thus ameliorating the chilling effect of their presence.

" ' "Due process guarantees the right to be present at any 'stage that is critical to [the] outcome' and where the defendant's 'presence would contribute to the fairness of the procedure.' " [Citation.] " 'The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]' [Citation.] Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant's personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]" [Citation.] "Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial." ' " (People v.

Gonzales (2012) 54 Cal.4th 1234, 1254, 144 Cal.Rptr.3d 757, 281 P.3d 834 (Gonzales ).) We need not decide whether our state statutes or principles of due process entitled defendant to be present during the in-chambers conference on August 6, 1999. Any error in excluding him was harmless. (See People v. Thompson (2016) 1 Cal.5th 1043, 1098-1099, 210 Cal.Rptr.3d 667, 384 P.3d 693.) Defendant had ample opportunity to raise these issues in subsequent proceedings during which he was present. He was obviously aware of the officers' presence from the very first meeting with counsel.

At arraignment, he voiced no concern about the officers' presence; nor did he object to counsel's appointment or ask to proceed pro se. Subsequently, defendant was present when the judge admonished officers in open court that they were bound by the attorney-client privilege. Again defendant raised no concerns about a chilling effect on his communications with counsel; nor did he request to proceed pro se. As noted, before trial the court twice asked defendant personally if there was any reason that trial could not begin. He voiced none.

Defendant had ample and multiple opportunities to explore these security issues. His exclusion from the initial in camera hearing was not prejudicial. (Cf. People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 1041, 47 Cal.Rptr.3d 467, 140 P.3d 775.) Defendant further contends that he was denied his Sixth Amendment right " ' "to be personally present at any proceeding in which his appearance is necessary to prevent 'interference with [his] opportunity for effective cross-examination.' " ' " ( Gonzales, supra, 54 Cal.4th at pp. 1253-1254, 144 Cal.Rptr.3d 757, 281 P.3d 834.) He reasons that "while [he] was physically present during trial, he was unable to assist counsel with cross-examination without disclosing his comments to correctional officers at the same time, and thus, it was no different than if he had been tried in absentia.

" This remarkable claim is without merit. Defendant was present during all trial proceedings where evidence was taken. The record discloses that defendant's hands were unrestrained and he was able to write notes to defense counsel. Additionally, there is no evidence other than defendant's bare assertion that he was unable to speak to defense counsel during trial due to the presence of correctional officers. At no time did defendant advise the court of his asserted concern. The record reveals no interference with defendant's opportunity to assist counsel in conducting effective cross-examination. 2.

Multiple Convictions for First Degree Murder and Aggravated Assault by a Life Prisoner (§ 4500) Defendant contends that his convictions for first degree murder must be reversed because they are necessarily included in the offense of aggravated assault by a life prisoner, of which he was also convicted. He is incorrect. "While

section 654 prohibits multiple punishment , it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct. (§ 954 ; People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48.) However, a 'judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]' (People v. Montoya (2004) 33 Cal.4th 1031, 1034, 16 Cal.Rptr.3d 902, 94 P.3d 1098.)" (People v.

Sanders (2012) 55 Cal.4th 731, 736, 149 Cal.Rptr.3d 26, 288 P.3d 83.) "In deciding whether multiple conviction is proper, a court should consider only the statutory elements." (People v.

Reed (2006) 38 Cal.4th 1224, 1229, 45 Cal.Rptr.3d 353, 137 P.3d 184.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id . at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.) In other words, " '[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' " (Ibid ., quoting People v. Lopez (1998) 19 Cal.4th 282, 288, 79 Cal.Rptr.2d 195, 965 P.2d 713.)

Section 4500 provides: "Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole.

The penalty shall be determined pursuant to the provisions of Sections 190.3 and 190.4; however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, the punishment shall be imprisonment in the state prison for life without the possibility of parole for nine years." Defendant reasons that

section 4500 contains all of the elements of murder: (1) an assault upon another person with a deadly weapon or instrument, or by means of force likely to produce great bodily injury; (2) with malice aforethought; (3) that causes the death of the victim within a year and a day; plus the additional element (4) that the assault be committed by a prisoner in state prison while undergoing a sentence of life imprisonment. " 'The words malice aforethought in

section 4500 have the same meaning as in sections 187 [murder] and 188 [malice definition].' " (People v. St. Martin (1970) 1 Cal.3d 524, 537, 83 Cal.Rptr. 166, 463 P.2d 390, quoting People v. Chacon (1968) 69 Cal.2d 765, 781, 73 Cal.Rptr. 10, 447 P.2d 106.) "Malice may be either express or implied.

It is express when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature.' (§ 188.) It is implied ... 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life' [citation]." (People v. Lasko (2000) 23 Cal.4th 101, 107, 96 Cal.Rptr.2d 441, 999 P.2d 666.) In other words, express malice requires an intent to kill. Implied malice does not.

Defendant's argument overlooks the fact that he was convicted of first degree murder.

Section 189 defines first degree murder as an unlawful killing with malice aforethought that is willful, premeditated and deliberate. (§ 189 ; People v. Chiu (2014) 59 Cal.4th 155, 166, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; see also id . at p. 163, 172 Cal.Rptr.3d 438, 325 P.3d 972 [premeditation and deliberation are elements of first degree murder, not a separate penalty provision].) "Willful" means intentional; "premeditated" means thought over in advance; "deliberate" means careful weighing of considerations in forming a course of action. (See CALCRIM No. 521 ; People v. Koontz (2002) 27 Cal.4th 1041, 1080, 119 Cal.Rptr.2d 859, 46 P.3d 335.) One who violates

section 4500 does not necessarily harbor an express intent to kill, nor does he necessarily act with premeditation and deliberation, all of which are required for this type of first degree murder. First degree murder also includes an unlawful killing with malice aforethought that is perpetrated by certain specified means (such as a destructive device, poison, lying in wait, torture, etc.), and an unlawful killing during the commission or attempted commission of certain listed felonies. (§ 189 ; People v. Chun (2009) 45 Cal.4th 1172, 1182, 91 Cal.Rptr.3d 106, 203 P.3d 425 ; People v. Dillon (1983) 34 Cal.3d 441, 465-472, 475-477, 194 Cal.Rptr. 390, 668 P.2d 697.) One who violates

section 4500 does not necessarily do so by any of the means specified in

section 189. Nor does a violation of

section 4500 predicated on felony assault come within the list of qualifying felonies for first degree felony murder. These alternative theories of first degree murder are not implicated by the facts here, nor were they relied upon by the prosecution at trial. We mention them, however, because the elements test turns not on the specific facts of a case but on the elements set out in the statute. Because it is possible to violate

section 4500 without committing murder in the first degree, the latter offense is not included in the former. Accordingly, defendant was properly convicted of both offenses in the killings of Mendoza and Mahoney. 3. Claims of Instructional Error The trial court instructed the jury with CALJIC Nos. 2.01 (sufficiency of circumstantial evidence), 2.21.2 (willfully false testimony), 2.22 (weighing conflicting testimony), 2.27 (sufficiency of testimony of a single witness), 2.51 (motive) and 8.20 (willful, deliberate, and premeditated murder) at the guilt phase.

It repeated all of these instructions except CALJIC No. 8.20 at the penalty phase. Defendant claims these standard instructions undermined the prosecution's burden of proof beyond a reasonable doubt. He acknowledges that we previously have rejected these claims (see, e.g., People v. Casares (2016) 62 Cal.4th 808, 831-832, 198 Cal.Rptr.3d 167, 364 P.3d 1093 (Casares )), but urges us to reconsider. He offers no persuasive reason to do so. " CALJIC No. 2.01 does not alter the burden of proof, nor does it create a mandatory presumption of guilt." (People v.

Bonilla (2007) 41 Cal.4th 313, 338, 60 Cal.Rptr.3d 209, 160 P.3d 84, and cases cited.) The instruction "properly direct[s] the jury to accept an

interpretation of the evidence favorable to the prosecution and unfavorable to the defense only if no other 'reasonable'

interpretation can be drawn. Particularly when viewed in conjunction with other instructions correctly stating the prosecution's burden to prove defendant's guilt beyond a reasonable doubt, [this] circumstantial evidence instruction[ ] do[es] not reduce or weaken the prosecution's constitutionally mandated burden of proof or amount to an improper mandatory presumption of guilt." (People v.

Kipp (1998) 18 Cal.4th 349, 375, 75 Cal.Rptr.2d 716, 956 P.2d 1169.) Defendant counters that "[a]n instruction that dilutes the beyond-a-reasonable-doubt standard of proof on a specific point is not cured by a correct general instruction on proof beyond a reasonable doubt." He overlooks the fact that CALJIC No. 2.01, as given, specifically referred to the reasonable doubt standard, stating that "each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt." It also provided: "if the circumstantial evidence as to any particular count permits two reasonable

interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt that

interpretation that points to the defendant's innocence, and reject that

interpretation that points to his guilt." There is no reasonable likelihood that the jury understood this instruction to dilute the burden of proof or create a mandatory presumption of guilt. (See People v. Smithey (1999) 20 Cal.4th 936, 963, 86 Cal.Rptr.2d 243, 978 P.2d 1171.) CALJIC No. 2.21.2 does not reduce the prosecution's burden of proof. (People v.

Beardslee (1991) 53 Cal.3d 68, 95, 279 Cal.Rptr. 276, 806 P.2d 1311.) As given, it informed the jury that "[y]ou may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars." Defendant argues that the instruction "lightened the prosecution's burden of proof by allowing the jury to credit prosecution witnesses if their testimony had a 'mere probability of truth.' " However, the instruction "says no such thing." (People v.

Nakahara (2003) 30 Cal.4th 705, 714, 134 Cal.Rptr.2d 223, 68 P.3d 1190 (Nakahara ).) It " 'does nothing more than explain to a jury one of the tests they may use in resolving a credibility dispute.' " (Beardslee , at p. 95, 279 Cal.Rptr. 276, 806 P.2d 1311 ; quoting People v. Blassingill (1988) 199 Cal.App.3d 1413, 1419, 245 Cal.Rptr. 599.) It does not speak to, nor does it conflict with, the ultimate burden of proof applicable to the elements of the charge. (People v. Hillhouse (2002) 27 Cal.4th 469, 493, 117 Cal.Rptr.2d 45, 40 P.3d 754 ; see People v.

Centeno (2014) 60 Cal.4th 659, 672, 180 Cal.Rptr.3d 649, 338 P.3d 938.) The instruction " 'is unobjectionable when, as here, it is accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People's burden of proof.' " (People v. Kelly (2007) 42 Cal.4th 763, 792, 68 Cal.Rptr.3d 531, 171 P.3d 548 (Kelly ), quoting Nakahara , at p. 715, 134 Cal.Rptr.2d 223, 68 P.3d 1190 ; accord, People v.

Riel (2000) 22 Cal.4th 1153, 1200, 96 Cal.Rptr.2d 1, 998 P.2d 969.) Defendant criticizes precedent that looks to the reasonable doubt instruction as a cure for an alleged ambiguity, particularly where the challenged instruction itself contains no such cross-reference. We have long held that "the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, 224 Cal.Rptr. 112, 714 P.2d 1251, disapproved on another ground in People v.

Reyes (1998) 19 Cal.4th 743, 753, 80 Cal.Rptr.2d 734, 968 P.2d 445.) Thus, " '[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' " (Burgener , at p. 539, 224 Cal.Rptr. 112, 714 P.2d 1251.) The jury here was given CALJIC No. 1.01, which told them to "[c]onsider the instructions as a whole and each in light of all the others." Given the emphasis placed on proof beyond a reasonable doubt throughout the charge (see, e.g., CALJIC Nos. 2.01, 2.02, 2.61, 2.90, 7.35, 8.71, 8.75, 8.80.1, 17.01, 17.10, 17.25 ), we reject defendant's suggestion that "[i]t is just as likely the jurors concluded that the reasonable doubt instruction was qualified or explained by the other instructions that contain their own independent references to the evaluation or sufficiency of particular evidence." CALJIC No. 2.22's direction to consider "the convincing force of the evidence" in weighing the testimony of a number of witnesses, did not lessen the prosecution's burden of proof where the instructions as a whole correctly instructed the jury on that burden. (People v.

Cleveland (2004) 32 Cal.4th 704, 751, 11 Cal.Rptr.3d 236, 86 P.3d 302 (Cleveland ).) Contrary to defendant's argument, there is no reason to presume the jury would equate the word "convincing" with the lesser preponderance of the evidence standard, which was nowhere mentioned in the instructions given.

CALJIC No. 2.27, as given, told the jury that "[t]estimony by one witness which you believe concerning any fact is sufficient for the proof of that fact." Contrary to defendant's argument, the instruction did not erroneously suggest that defendant had the burden of proving facts, rather than simply raising a reasonable doubt about the prosecution's case.

The instruction " 'is unobjectionable when, as here, it is accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People's burden of proof.' " (Kelly , supra , 42 Cal.4th at p. 792, 68 Cal.Rptr.3d 531, 171 P.3d 548.) Specifically, CALJIC No. 2.90, as given, told the jury that defendant was "presumed to be innocent until the contrary is proved," and that "[t]his presumption places upon the People the burden of proving him guilty beyond a reasonable doubt." CALJIC No. 2.61, as given, told the jury that "[i]n deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him.

No lack of testimony on defendant's part will make up for a failure of proof by the People so as to support a finding against him on any such essential element." In light of the instructions as a whole, CALJIC No. 2.27 is not susceptible to the

interpretation defendant suggests. CALJIC No. 2.51, as given, told the jury that "[m]otive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty." Defendant argues that the instruction shifted the burden of proof to him to disprove motive in order to establish his innocence. "But the instruction did not shift the burden of proof.

It merely told the jury it may consider the presence or absence of motive. [Citations.] The motive instruction did not itself include instructions on the prosecution's burden of proof and the reasonable doubt standard, but it also did not undercut other instructions that correctly informed the jury that the prosecution had the burden of proving guilt beyond a reasonable doubt." (Cleveland , supra , 32 Cal.4th at p. 750, 11 Cal.Rptr.3d 236, 86 P.3d 302.) Defendant further argues that the instruction improperly allowed the jury to convict based on the presence of motive alone.

Because this argument merely goes to the clarity of the instruction, it is forfeited by defendant's failure to object below. (Ibid . ) In any event, given the instructions on the elements of the charged crimes and the burden of proof beyond a reasonable doubt, "[w]e find no reasonable likelihood the jury would infer from the motive instruction that motive alone could establish guilt.

Moreover, given the strong evidence of guilt aside from motive, the jury certainly did not base its verdicts solely on motive." (Ibid . ) Finally, CALJIC No. 8.20 did not mislead the jury regarding the prosecution's burden of proof at the guilt phase.

The instruction told the jury that deliberation and premeditation "must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation." Defendant argues that "the word 'precluding' could be interpreted to require the defendant to absolutely eliminate the possibility of premeditation, as opposed to raising a reasonable doubt." However, when read in conjunction with the instructions on reasonable doubt, the presumption of innocence, and the People's burden of proof, there is no reasonable likelihood the jury would have interpreted CALJIC No. 8.20 in this manner. (Nakahara , supra , 30 Cal.4th at p. 715, 134 Cal.Rptr.2d 223, 68 P.3d 1190.) "These instructions make it clear that a defendant is not required to absolutely preclude the element of deliberation." (Ibid . ) B.

Penalty Phase Issues 1.

Constitutionality of Lying-in-Wait Special Circumstance "At the time of defendant's crime, the special circumstance of murder while lying in wait (former § 190.2, subd. (a)(15)) required 'an intentional murder committed under circumstances which include (1) concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.' " (Casares , supra , 62 Cal.4th at p. 827, 198 Cal.Rptr.3d 167, 364 P.3d 1093.) Defendant argues that the lying-in-wait special circumstance, as interpreted by this court, fails to narrow the class of persons eligible for the death penalty, and fails to provide a " ' "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not," ' " in violation of the Eighth Amendment. (Godfrey v.

Georgia (1980) 446 U.S. 420, 427, 100 S.Ct. 1759, 64 L.Ed.2d 398.) He reasons that there is no meaningful distinction between the lying-in-wait special circumstance and first degree murder predicated on theories of premeditation and deliberation or lying in wait. As a result, the special circumstance does not perform a narrowing function and can apply to virtually any intentional first degree murder. For much the same reasons, he argues, murders committed by lying in wait are no more deserving of the extreme sanction of death than other premeditated killings.

As defendant acknowledges, we have repeatedly rejected these claims. (People v. Streeter (2012) 54 Cal.4th 205, 252-253, 142 Cal.Rptr.3d 481, 278 P.3d 754 (Streeter ); People v. Carasi (2008) 44 Cal.4th 1263, 1310, 82 Cal.Rptr.3d 265, 190 P.3d 616 ; People v. Stevens (2007) 41 Cal.4th 182, 203-204, 59 Cal.Rptr.3d 196, 158 P.3d 763 ; Nakahara , supra , 30 Cal.4th at p. 721, 134 Cal.Rptr.2d 223, 68 P.3d 1190 ; People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149, 124 Cal.Rptr.2d 373, 52 P.3d 572 ; People v.

Morales (1989) 48 Cal.3d 527, 557-558, 257 Cal.Rptr. 64, 770 P.2d 244, disapproved on another ground in People v.

Williams (2010) 49 Cal.4th 405, 459, 111 Cal.Rptr.3d 589, 233 P.3d 1000.) These holdings were recently reaffirmed in Casares , supra , 62 Cal.4th 808, 198 Cal.Rptr.3d 167, 364 P.3d 1093, which explained, "we have differentiated between the lying-in-wait special circumstance and lying in wait as a theory of first degree murder on the bases that the special circumstance requires an intent to kill (unlike first degree murder by lying in wait, which requires only a wanton and reckless intent to inflict injury likely to cause death) and requires that the murder be committed 'while' lying in wait, that is, within a continuous flow of events after the concealment and watching and waiting end. [Citations.] Contrary to defendant's argument, the lying-in-wait special circumstance is not coextensive with either theory of first degree murder; it does not apply to all murders and is not constitutionally infirm." (Id . at p. 849, 198 Cal.Rptr.3d 167, 364 P.3d 1093.) Casares also rejected defendant's challenge to the validity of the special circumstance on the ground that only three other states use lying in wait as a basis for death eligibility.

We observed, apart from noting "the rarity, among capital punishment jurisdictions, of lying in wait as a death-eligibility factor, defendant provides no historical information regarding any change, to or away from, the use of lying in wait for this purpose." (Casares , supra , 62 Cal.4th at p. 851, 198 Cal.Rptr.3d 167, 364 P.3d 1093.) We observed that the high court had not held, "whether by discerning a national consensus on the issue or through some other mode of analysis, that a form of murder as defined by a state, when committed by one with a sufficient degree of participation and without a characteristic deemed to limit culpability as a matter of law was, per se, insufficiently aggravated to permit imposition of the death penalty under the Eighth Amendment." (Id . at p. 852, 198 Cal.Rptr.3d 167, 364 P.3d 1093.) Finally, we emphasized that " '[m]urder committed by lying in wait has been "anciently regarded ... as a particularly heinous and repugnant crime." ' " (Id . at p. 853, 198 Cal.Rptr.3d 167, 364 P.3d 1093, quoting People v.

Edelbacher (1989) 47 Cal.3d 983, 1023, 254 Cal.Rptr. 586, 766 P.2d 1.) For these same reasons, we reject defendant's contentions here. 2. Constitutionality of Death Eligibility Provision for Aggravated Assault by a Life Prisoner (§ 4500) Defendant contends that

section 4500 violates the Eighth Amendment because it qualifies persons for death based on an arbitrary criterion that fails to promote the goals of retribution and deterrence. He argues that this eligibility provision does not "adequately differentiate ... in an objective, evenhanded, and substantially rational way" (Zant v. Stephens (1983) 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 ), murder defendants for whom the jury may consider a death sentence from those for whom it may not.

According to defendant, it is irrational to qualify an inmate for death based on "the type of sentence an inmate is serving, rather than the offense underlying that sentence." He argues that others serving determinate term sentences may have committed more heinous crimes than the crimes that qualified defendant for a 25-years-to-life term under the Three Strikes law, but that fact is not accounted for in

section 4500's eligibility criteria. He also argues that the death penalty is not a deterrent, and that lesser sanctions such as revoking parole eligibility suffice. We recently considered and rejected similar claims in People v. Landry (2016) 2 Cal.5th 52, 211 Cal.Rptr.3d 160, 385 P.3d 327 (Landry ). For the reasons stated there, we reject defendant's constitutional challenge to

section 4500. "To pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' " (Lowenfield v. Phelps (1988) 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568.) As to the first requirement, Landry noted that "the class of individuals potentially subject to the death penalty under

section 4500 is quite circumscribed: persons serving a life sentence who, with malice aforethought, assault another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, resulting in the death of the victim within a year and a day." (Landry , supra , 2 Cal.5th at p. 107, 211 Cal.Rptr.3d 160, 385 P.3d 327.) "The statute easily satisfies the requirement that an eligibility factor 'apply only to a subclass of defendants convicted of [homicide].' (Tuilaepa v.

California [ (1994) ] 512 U.S. [967,] 972 [114 S.Ct. 2630, 129 L.Ed.2d 750].)" (Ibid . ) Regarding the second requirement, Landry explained that "the Legislature has determined that death eligibility for life prisoners who commit an aggravated assault that leads to the victim's death is required to 'protect [ ] [their fellow] prisoners ... against the assaults of the vicious, and also to protect the officers who are required to mingle with the inmates, unarmed.' ( [People v. ] McNabb [ (1935) ] 3 Cal.2d [441,] 458 [45 P.2d 334] ; accord, [People v.

Superior Court (Bell ) (2002) ] 99 Cal.App.4th [1334,] 1341, 121 Cal.Rptr.2d 836.) By imposing more severe penalties on those serving life sentences, 'the Legislature was attempting to deter severely violent crime by those who might otherwise think themselves immune from punishment because they were already lifetime guests of the state penal system.' (In re Carmichael (1982) 132 Cal.App.3d 542, 546, 183 Cal.Rptr. 206.) Along with retribution, deterring attacks by life prisoners and thereby promoting the safety of inmates and correction officers are legitimate penal objectives. (See Kennedy v.

Louisiana (2008) 554 U.S. 407, 420, 128 S.Ct. 2641, 171 L.Ed.2d 525 (Kennedy ) ['punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution'].) These rationales of institutional security, deterrence, and retribution provide a reasonable justification for distinguishing this category of murder from others to which the death penalty does not apply." (Landry , supra , 2 Cal.5th at pp. 107-108, 211 Cal.Rptr.3d 160, 385 P.3d 327.) Defendant complains that inmates who are serving a life sentence "are not necessarily more culpable than those serving a determinate sentence and are therefore not necessarily more deserving of execution when they commit fatal assaults while incarcerated." Landry rejected a similar argument, noting that "[s]ection 4500 is a death eligibility statute as opposed to a death selection statute." (Landry , supra , 2 Cal.5th at p. 106, 211 Cal.Rptr.3d 160, 385 P.3d 327 ; see Tuilaepa v.

California (1994) 512 U.S. 967, 971-972, 114 S.Ct. 2630, 129 L.Ed.2d 750.) In other words, a defendant convicted of violating

section 4500 is eligible for the death penalty or, alternatively, life without the possibility of parole. (Landry , at p. 106, 211 Cal.Rptr.3d 160, 385 P.3d 327.) It is up to the jury to decide whether it will select the death penalty as appropriate. "There is no requirement at the eligibility stage that a narrowly circumscribed class of defendants for whom the death penalty is reasonably justified be further distinguished according to the particular circumstances that led to their eligibility. Rather, that is a question that goes to the selection stage and its individualized determination requirement.

Only at that point does the Eighth Amendment require 'a broad inquiry into all relevant mitigating evidence to allow an individualized determination.' (Buchanan v. Angelone [ (1998) ] 522 U.S. [269,] 276, 118 S.Ct. 757, 139 L.Ed.2d 702.)" (Id . at p. 108, 211 Cal.Rptr.3d 160, 385 P.3d 327.) The reason a defendant was a life prisoner at the time of the charged killing may be a relevant consideration for the jury at the penalty phase. It is not germane, however, to the justification for including such persons in the death-eligible class. (Ibid . ) Landry further rejected the defendant's reliance on Sumner v.

Shuman (1987) 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56, a case that struck down as unconstitutional a mandatory capital sentencing procedure for prisoners who committed murder while serving a sentence of life without the possibility of parole. As the Supreme Court noted, under those circumstances, "[w]ithout consideration of the nature of the predicate life-term offense and the circumstances surrounding the commission of that offense, the label 'life-term inmate' reveals little about the inmate's record or character." (Sumner , at p. 81, 107 S.Ct. 2716.) Landry found Sumner 's holding inapposite to

section 4500, which does not impose a mandatory death sentence. "The [Sumner ] court did not, however, question the legitimacy of deterrence and retribution as rationales. In short, the statute in Sumner differs from

section 4500 in crucial respects, and defendant's reliance on Sumner is misplaced." (Landry , supra , 2 Cal.5th at p. 111, 211 Cal.Rptr.3d 160, 385 P.3d 327.) Defendant argues that there are ways other than a death sentence to deter murder in prison, and that statistical evidence suggests capital punishment does not actually deter in-prison homicide. His arguments are misplaced. "The weight and validity of such studies involve policy questions within the Legislature's purview. So, too, do defendant's arguments regarding retributive steps short of death that might be taken against prisoners who kill.

These studies do not establish that imposing death eligibility on life prisoners who commit fatal aggravated assaults is constitutionally impermissible." (Landry , supra , 2 Cal.5th at p. 111, 211 Cal.Rptr.3d 160, 385 P.3d 327.) Finally, defendant urges that an interjurisdictional comparison demonstrates a lack of societal consensus that the death penalty is warranted for murder by a life prisoner. He argues that only three states, Alabama, Mississippi, and New Hampshire, have a statute equivalent to

section 4500. Landry characterized a similar argument as "tendentious" because "the vast majority of jurisdictions with the death penalty regard custody status as a significant factor in either death penalty eligibility or death penalty selection, or for both purposes. Of the 31 states and the federal government whose laws currently authorize imposition of the death penalty, the laws of 29 states and the federal government use custody status as a death-eligibility or a death-selection factor, or both.

It appears that only Nebraska and South Carolina do not explicitly include custodial status as a death-eligibility or selection factor." (Landry , supra , 2 Cal.5th at p. 113, 211 Cal.Rptr.3d 160, 385 P.3d 327.) We concluded: "Defendant does not cite, nor has our research found, a single judicial decision from any death penalty jurisdiction that has held that the use of custodial status as either an eligibility or a selection factor for the death penalty violates the Eighth Amendment. Nor has defendant shown that any jurisdiction that reenacted the death penalty following Furman v.

Georgia [ (1972) ] 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, omitted custodial status as either an eligibility or selection factor for purposes of the death penalty. Thus, defendant fails to demonstrate the existence of an historical trajectory supporting a conclusion that the majority, or, indeed, any, of the death penalty jurisdictions has abandoned custody status as a factor for imposing the death penalty." (Id . at p. 113, 211 Cal.Rptr.3d 160, 385 P.3d 327.) Defendant's constitutional challenge to

section 4500's death eligibility provision fails. 3. Admission of Other Crimes Evidence in Aggravation (§ 190.3, factor (b)) The prosecution introduced evidence in aggravation of 10 unadjudicated incidents during which defendant was extracted from his prison cell.

Defendant argues that, for seven of these incidents, the evidence was legally insufficient to prove that he engaged in criminal activity involving the use or attempted use of force or violence, or express or implied threats to use force or violence (hereafter use, attempt, or threat of violence). (§ 190.3, factor (b) (factor (b)).) According to defendant, admission of this evidence violated his state and federal constitutional rights to due process, equal protection, a fair trial, trial by an impartial jury, and a reliable and non-arbitrary penalty determination. We reject his claims. a.

Forfeiture Defendant failed to object at trial to admission of other crimes evidence on the ground that it did not meet factor (b)'s criteria. He has thus forfeited his appellate claim. ( People v. Livingston (2012) 53 Cal.4th 1145, 1175, 140 Cal.Rptr.3d 139, 274 P.3d 1132 (Livingston ); People v. Lewis (2008) 43 Cal.4th 415, 529, 75 Cal.Rptr.3d 588, 181 P.3d 947 (Lewis ), disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919, 169 Cal.Rptr.3d 363, 320 P.3d 800 ; People v. Montiel (1993) 5 Cal.4th 877, 928, fn. 23, 21 Cal.Rptr.2d 705, 855 P.2d 1277, disapproved on another ground in People v.

Sanchez (2016) 63 Cal.4th 665, 686, fn. 13, 204 Cal.Rptr.3d 102, 374 P.3d 320 ; Evid. Code, § 353.) Defendant urges us to revisit this precedent because, he claims, a sufficiency of the evidence

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