People v. Poore ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER ERIC POORE,
Defendant and Appellant.
S104665
Riverside County Superior Court
INF-033308
June 27, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger,
Groban, Jenkins, and Guerrero concurred.
Justice Liu filed a concurring opinion.
PEOPLE v. POORE
S104665
Opinion of the Court by Corrigan, J.
Defendant Christopher Eric Poore shot and killed Mark
Kulikov and took two carloads of his property. He was convicted
of first degree murder, robbery, burglary, and firearm
possession by a felon.1 The jury found that defendant had fired
a gun and committed the murder for financial gain and by
means of lying in wait2 but rejected all gang enhancement
allegations.3 The penalty was set at death. The court denied a
motion to modify the death verdict, imposed a $10,000
restitution fine, and stayed additional sentences totaling 41
years to life in prison. We affirm the judgment.
I. BACKGROUND
A. Guilt Phase
1. Prosecution Evidence
a. Planning
In 1998, defendant was housed in Pelican Bay State
Prison (Pelican Bay). Prison authorities had “validated” him as
1
Penal Code sections 187, subdivision (a), 211, 459, and
12021, subdivision (a)(1).
2
Penal Code sections 190.2, subdivision (a)(1) and (a)(15),
12022.5, subdivision (a), 12022.53, subdivision (d), 1192.7,
subdivision (c)(2) and (c)(8).
3
Penal Code section 186.22, subdivision (b)(1). All further
statutory references are to the Penal Code unless otherwise
specified.
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an associate of the Aryan Brotherhood, a white supremacist
gang.4 While awaiting parole, defendant told inmate Michael
Hammett, another Aryan Brotherhood associate, that he
wanted to become a full member of the gang and a “shot caller.”
Typically, Aryan Brotherhood aspirants were required to
commit violent crimes to gain entry. Once released, defendant
planned to earn membership by “tak[ing] care of” some
undisclosed business for the gang. Hammett put defendant in
touch with his wife, Kathleen O’Donnell. O’Donnell frequently
acted as a go-between for Aryan Brotherhood inmates and
people outside prison.
When paroled, defendant flew to Crescent City to help
O’Donnell move, and the two began a romantic relationship.
Because this trip violated the terms of his parole, defendant was
briefly reincarcerated at the California Institute for Men at
Chino.
In the fall of 1999, defendant was out of jail and living in
a Palm Springs townhouse that belonged to his mother’s fiancé.
He drove a new Jeep and kept a DeLorean in the garage. He
was romantically involved with Melinda McGuire, a
methamphetamine user who spent time at her friend Mark
Kulikov’s house. Kulikov also occasionally allowed Debra Feller
and Brian White to stay there. McGuire introduced Kulikov to
defendant, who began visiting the home.
4
A prison gang expert testified that a person is “validated”
as a gang member if the Department of Corrections and
Rehabilitation receives “tangible, credible information” from at
least three different sources tying the person to the gang.
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b. The Murder and Related Crimes
McGuire went to defendant’s townhouse on November 6,
1999, and the next day they visited her sister, Cherice Wiggins.
Wiggins was trying to sell a .32-caliber Colt revolver, and
defendant expressed interest in buying it. He said he wanted
the gun to confront someone named Morris. Morris McCormies
was another person who frequented Kulikov’s home. Wiggins
either loaned defendant the gun or allowed him to pay for it
later. She gave him the weapon and ammunition inside a black
plastic box.
On November 8, defendant and Jamie Wolden drove to
Kulikov’s house looking for McCormies, who owed Wolden
money. Kulikov was home with two visitors, Debra Feller and
Gary Richards. Kulikov gave Wolden a beer, then walked into
the bedroom with defendant. Shortly thereafter, Wolden joined
them. Defendant asked Kulikov for drugs or money, but Kulikov
said he had none. He invited defendant to take his stereo,
television, or anything else that he could pawn. Defendant
protested that he needed more because “he was about to lose his
Jeep.” Although the men had been conversing calmly, defendant
suddenly pulled a revolver and shot Kulikov several times.
Kulikov, who was unarmed, never rose from his chair. As
defendant left the room, he told Wolden that Aryan Brotherhood
members had told him to commit the murder. He reminded
everyone in the house that “his bros get out on parole every day,”
which Wolden understood as a threat to anyone who
“snitch[ed].”
Defendant removed the empty shell casings, put them in
his pocket, and reloaded the revolver. He directed Wolden and
Richards to take two large stereo speakers to his townhouse. He
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covered Kulikov’s body with a blanket, ordered Debra Feller to
pack her things, and asked where he could find a floor safe that
he believed contained drugs and jewelry. Feller said there was
no safe but defendant refused to believe her, and they looked for
it throughout the house. Defendant collected electronics
equipment and other valuables, packing them in large boxes.
Wolden and Richards drove to defendant’s residence as
instructed and unloaded Kulikov’s speakers in the garage.
Richards remained at the townhouse with McGuire, and Wolden
drove back to Kulikov’s house. Once there, Wolden called
defendant names, expressing his displeasure about the murder,
then walked home.
Brian White arrived at Kulikov’s house around 4:00 p.m.
Defendant displayed his gun, and Feller told White, “Just do
what he says.” Defendant said the Aryan Brotherhood had
ordered him to kill Kulikov and take his drugs because Kulikov
was not doing enough to help people in the gang. White did not
believe this explanation but helped defendant search the house.
White and Feller then drove more of Kulikov’s possessions to the
townhouse. McGuire was at the townhouse and noticed Feller
crying. Feller told her that defendant had shot and killed
Kulikov. Confronted by McGuire, defendant replied, “He’s just
asleep, asleep for good.” He told McGuire he shot Kulikov five
times but refused to explain why.
Later that evening, White and Feller drove back to
Kulikov’s house to retrieve their own belongings. Once away
from defendant, they drove to Yucca Valley and ultimately
decided to contact the police.
Around 8:30 or 9:00 p.m. the next night, defendant and
McGuire went to the home of Jo-Lin Ferdinand and Cameron
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Blodgett. The couple was away on vacation, and defendant had
been house-sitting for them. At one point, McGuire heard
defendant moving bricks or rocks on the patio. Later she noticed
that defendant no longer had her sister’s gun. He explained that
he had buried it.
c. Arrest and Investigation
An anonymous caller told police someone was dead in
Kulikov’s house. Responding officers entered through the
unlocked back door. They discovered Kulikov’s body in the
master bedroom, slumped on a chair and partially covered by a
comforter. He had been shot three times in the face, twice in the
chest, and once in the hand. The house was in disarray, and his
vehicle was missing.
Later that evening, White and Feller called the Palm
Springs Police Department to report the murder. Detectives
interviewed them separately and arrested White for a parole
violation. Feller led detectives to defendant’s empty townhouse,
then later recognized defendant’s Jeep parked in Blodgett’s
driveway. The officers obtained Blodgett’s phone number and
had Feller call it as a ruse to get defendant to leave the house.
It worked. Defendant asked Feller if something was wrong,
then hung up. Shortly afterward, defendant and McGuire left
the residence and were taken into custody.
Police searched the townhouse and found a black plastic
gun box containing .32-caliber ammunition. Five expended .32-
caliber shell casings were recovered from a trash bag. Stereo
equipment, speakers, cameras, a television, and other items
belonging to Kulikov were located in the townhouse and garage.
Kulikov’s truck was seized from the Morongo Valley residence
where White and Feller had parked it.
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The Blodgett-Ferdinand house was also searched.
Looking under some missing bricks and freshly turned dirt in
the backyard, a detective found a .32-caliber Colt revolver with
six live rounds in the cylinder. Ballistics matched the expended
cartridges from the trash bag to the recovered Colt. Bullets
recovered from the crime scene could have been fired from the
Colt but were too damaged to yield a definitive match.
Defendant talked about the murders while in the county
jail. Seeing Steven Pearson’s Aryan Brotherhood tattoo,
defendant told Pearson he had tried to become a member by
robbing a drug dealer for the gang. Instead, “he got frustrated
and shot the guy in the head and chest” while the victim was
sitting in his bedroom. Defendant said he took the man’s
property and hid the gun under some bricks at another house.
He also confessed to his cellmate, Neal O’Neill, saying he shot a
man in the body, hand, and head while in the back bedroom of
the man’s house. He claimed to have been acting as “a hitman
for the Aryan Brotherhood.” Afterward, he had hidden the gun
underneath a brick in a backyard patio.
d. Efforts to Intimidate and Eliminate Witnesses
Defendant wrote McGuire a letter from jail instructing her
to testify he had not obtained a gun from her sister and that she
never knew him to possess any gun. He opined that any
contrary statements she had given to the authorities were
“bullshit” and must have been coerced. Rather than give false
testimony, McGuire turned the letter over to the police.
In January 2000, defendant’s sister mailed Kathleen
O’Donnell a packet of police reports and related materials in the
Kulikov murder case. At that time, O’Donnell and defendant
communicated about his case almost daily. O’Donnell
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highlighted portions of the documents reflecting Brian White’s
cooperation with police and child molestation charges that had
been dismissed. Testimony from a longtime Aryan Brotherhood
member and other associates established that this paperwork
was a “death warrant” for White. At defendant’s direction,
O’Donnell sent the annotated packet and White’s mug shot to
Kenneth Cook, a gang associate who was in the same prison
where White was incarcerated for his parole violation.
Defendant and Cook had been in the county jail together
before Cook was transferred to Chino state prison. Defendant
told Cook five witnesses in his case needed to be “dealt with,”
meaning killed. He said his sister would mail Cook the
information. In return, defendant promised Cook a new Jeep
and other items. Cook never received the “death warrant”
packet. But, from a conversation with White on the yard, Cook
realized that White was one of the witnesses defendant had
targeted. Cook was worried that if he did not kill White, he
could be killed himself. Cook was soon transferred to a different
prison, however, and did not have an opportunity to act.
Defendant also sought help from fellow Riverside jail
inmates Steven Pearson and Neal O’Neill. Defendant reported
where White was incarcerated and asked if Pearson knew any
Aryan Brotherhood associates who would “take care of” White
for him. He promised to have his sister put money in their
prison accounts in payment for White’s murder. After Pearson
demurred, defendant offered his cellmate, O’Neill, a Jeep and a
DeLorean to kill the witnesses against him. He suggested the
male witnesses should be shot and the female witness injected
with a drug overdose.
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Defendant also wanted to use O’Neill’s nitroglycerin heart
medication to kill someone in the Indio County jail, where
defendant had been transferred. O’Neill refused to give up his
pills. O’Neill later realized the pills were missing and alerted
jail authorities to defendant’s plan. Corrections officers
searched defendant’s cell and found a pharmacy bottle of
nitroglycerin pills in his property box. Defendant was returned
to the Riverside County jail, strip-searched, and X-rayed. The
X-ray revealed a bindle hidden in defendant’s rectum containing
tobacco, cigarettes, a lighter, and an improvised syringe.
2. Defense Evidence
Defendant testified, admitting prior convictions for
burglary, grand theft, methamphetamine possession, and
felonious possession of a firearm. He had been incarcerated at
several facilities, including Pelican Bay. He denied belonging to
the Aryan Brotherhood but conceded prison authorities had
validated him as an associate. After his parole, his family gave
him housing and paid his bills.
Defendant claimed that two or three days before the
murder he purchased speakers and stereo equipment from
Kulikov for $1,000. Kulikov promised to deliver the items to
him. Another witness recalled that defendant had offered
Kulikov a $150 down payment for the equipment.
On November 7, while he was visiting McGuire’s family,
Cherice Wiggins said that she had a Colt revolver for sale.
Wanting to buy the gun as a present for his mother’s fiancé, he
promised to pay Wiggins $200 when his mother returned from
vacation. He locked the gun inside a toolbox in his Jeep.
The next morning, Wolden asked defendant for a ride to
Kulikov’s house. When they were halfway there defendant
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changed his mind about accompanying Wolden. Instead, he
drove to Blodgett’s house, got out, and loaned Wolden his Jeep
for the afternoon. He warned Wolden not to get pulled over
because there was a gun in the Jeep’s toolbox.
Defendant said he arrived at the Blodgett’s house shortly
before noon. The couple had recently given him a key, so he
went inside, made coffee, and talked with them for a while. He
then spent the rest of the day working on Blodgett’s truck,
cleaning the yard, and building a dog run. He stayed there until
after 4:00 p.m. Blodgett testified, however, that the yard work
was done earlier that weekend and defendant did not work on
the truck. Blodgett and Ferdinand both recalled defendant
arriving and making coffee, but they became busy and could not
say exactly where defendant was in the house or what time he
left.
According to defendant, Debra Feller and Brian White
came to the townhouse in Kulikov’s truck and delivered the
stereo equipment defendant had purchased. They also dropped
off boxes of personal items defendant had agreed to let them
store there. White and Feller left in Kulikov’s truck around 6:30
or 7:00 p.m. Defendant and Blodgett met at a local pub around
9:00 p.m. Except for a brief period around 10:00 or 11:00 p.m.,
when he took McGuire back to the townhouse, defendant was
with Blodgett until around 2:30 in the morning.
Defendant and McGuire went to Blodgett’s house the next
evening to feed the pets and housesit. Defendant worried the
police were coming when he saw a figure in a suit run across the
backyard. He admitted taking the gun from the Jeep and
burying it under the brick patio.
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Steven Pearson’s county jail cellmate testified that
Pearson had a reputation as a “snitch” who made up stories to
gain favor with the authorities. Eleaza Mead testified that
Debra Feller was laughing about the murder and defendant’s
arrest. According to Mead, Feller said defendant had not
committed the murder but was the most likely person to be
blamed. Robert Hamilton testified the police pressured Jamie
Wolden. Wolden told him the police were going to charge him if
he did not name defendant as Kulikov’s killer. On rebuttal, the
prosecution introduced Hamilton’s previous statements.
Hamilton initially told police that Wolden said he did not know
who shot Kulikov. Later, Hamilton disclosed that Wolden said
defendant committed the murder.
B. Penalty Phase
The prosecution presented evidence of defendant’s
violence in custody. The jury also heard victim impact
testimony from Kulikov’s family. The defense declined to cross-
examine any of these witnesses and presented no penalty phase
evidence or argument.
1. In-custody Behavior
a. California Medical Facility, Vacaville (1993)
On May 29, 1993, while serving a sentence for firearm
possession, defendant was housed at the California Medical
Facility in Vacaville. There, he struck inmate Roger Pyatt in
the mouth, knocking out his dentures. Defendant later
admitted the assault, claiming Pyatt had insulted him in front
of other inmates. Pyatt suffered from serious mental illness and
developmental disability, which were evident to all inmates and
staff. Most other inmates either ignored Pyatt’s odd behavior or
tried to protect him.
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b. California State Prison, Calipatria (1994–1995)
Defendant committed several assaults and weapons
violations while incarcerated at the Calipatria State Prison on
another gun charge.
On August 22, 1994, officers heard noises coming from
defendant’s cell. They arrived to find defendant’s cellmate,
Foster, with a swollen eye; defendant was uninjured. The two
began fighting again and did not stop until officers activated an
alarm. Defendant said he and Foster “ ‘were not getting along’ ”
and admitted, “ ‘I just got a lucky punch in.’ ”
On April 16, 1995, defendant and his cellmate Bennett
participated in a prison yard melee along with a number of other
inmates. Bennett and others used weapons. Ignoring repeated
commands and warning shots, the group did not desist until a
correctional officer produced a rifle.
On May 21, 1995, defendant was with inmate Burke in the
prison yard. Inmate Collins attacked Burke with fists and a
weapon. The two continued fighting until a corrections officer
fired a rubber round from his gas gun. While all the inmates lay
prone at the officer’s command, defendant jumped up and kicked
Burke in the head. He did not stop until the officer loaded a
rifle.
On June 7, 1995, defendant and his white cellmate
Bennett fought with two African-American inmates who entered
the yard. Defendant fought inmate Carroll, punching, then
slashing and stabbing at him. One officer ordered them down
and another fired a rubber bullet directly at defendant, stopping
the fight. Defendant threw his weapon toward the fence, where
it was recovered. Carroll sustained lacerations and puncture
wounds to the chest, stomach, and arm.
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Defendant was involved in a similar fight on July 4, 1995.
When two African-American inmates entered the yard,
defendant and his cellmate Bennett immediately attacked them.
The men disregarded orders to stop, and officers fired rubber
rounds at them. Bennett’s fight ended, but defendant and
inmate Thomas continued punching each other even after
officers deployed tear gas. More rubber bullets were fired to
finally end defendant’s attack.
On November 15, 1995, officers found a weapon fashioned
from razor blades in defendant’s cell. The blades had a handle
at one end made from masking tape and thread. A sheath made
from a milk carton and tape covered the blades. The weapon
was hidden on defendant’s shelves, inside an envelope
addressed to him.
The following week, on November 24, 1995, defendant was
involved in another interracial fight, when he and another
inmate attacked African-American inmates Tolliver and Hyder.
The men ignored commands and the firing of rubber bullets,
stopping only after officers threw tear gas into the yard.
On December 10, 1995, officers found contraband razors
hidden in the garbage and inside a towel in defendant’s shelving
unit.
On December 19, 1995, defendant initiated a fight with
inmate McCarter. Rubber bullets and tear gas were required to
stop the fight.
c. California State Prison, Corcoran (1996)
The following year, defendant was convicted of weapon
possession as an inmate (§ 4502) and incarcerated at the
Corcoran State Prison. His in-custody violence continued. On
October 19, 1996, he attacked inmate Hernandez on the yard.
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They continued fighting after officers fired a wooden round.
Inmate Burns intervened and hit defendant, who struck Burns
and returned to punching Hernandez. The fight ended when
officers fired another round.
A little over two weeks later, on November 4, 1996,
defendant fought with inmate Munoz in the prison yard.
d. Riverside County Jail (2000)
Defendant joined a fight in the Riverside County jail while
awaiting trial on the current charges. On February 16, 2000,
several men from another jail were brought into a holding cell.
Defendant backed an African-American inmate named Clarence
Keyes into a corner and began punching him. Keyes curled into
a fetal position, trying to protect himself. Defendant punched
him 10 to 12 times before finally obeying deputies’ orders to stop.
2. Victim Impact
Several members of Kulikov’s family testified about the
impact of his murder. Kulikov was 42 years old when he died
and was the only son of Frances and Alex Kulikov. After
surviving rheumatic fever as a child, Kulikov grew especially
close to his mother. They talked regularly on the phone,
including the morning of his death. Before he moved away to
Palm Springs, Kulikov worked with his father on the family’s
Arizona produce farm.
Kulikov’s parents and one of his three sisters were
traveling to a family member’s funeral in Pismo Beach when
they learned of his death. They initially thought Kulikov had
been killed in a car accident because he had planned to drive to
the funeral. Learning from the news that he had been
murdered, Kulikov’s parents were devastated. His mother was
medicated for depression, and his father was saddened that
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Kulikov did not live to carry on the family name. Kulikov’s
sisters described their close relationships and the pain his
killing caused.
Kulikov’s wife of nearly 20 years, Joie, testified about their
whirlwind courtship and wedding. She said Kulikov was a kind,
generous, supportive husband, and a devoted father to their
daughter. They had moved to Palm Springs shortly before their
daughter started kindergarten and were in the same house
when she left for college, just a few months before the murder.
Around that time, Kulikov’s behavior changed. He was
preoccupied and began entertaining new friends at the house
while she was away at work. Joie moved out of the house about
two months before the murder, trying to persuade Kulikov to
break away from his new friends. She was in denial upon
learning of the murder and felt lonely and sad that they would
not grow old together.
Kulikov’s daughter described happy memories of her
father. They talked often and she was proud of him. Learning
of her father’s death while she was away at college was
devastating. She had nightmares afterward and thought about
him daily.
II. DISCUSSION
A. Pretrial Issues
1. Physical Restraints
After a hearing, the court ordered that defendant wear a
REACT stun belt and be confined to a specially constructed
restraint chair during trial. Defendant contends these
restraints inflicted pain, caused his absence from part of the
trial, “likely interfered with his ability to communicate with his
counsel, compromised his ability to concentrate on his trial[,]
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and affected his demeanor before the jury when he testified at
the guilt phase.” He argues their use violated numerous
constitutional rights.5 Ample evidence supports the court’s
finding of manifest need, and the court acted within its
discretion in selecting the restraints employed.
a. Background
Before trial, the prosecution moved for defendant to be
restrained during the proceedings. The motion represented that
defendant had threatened to kill witnesses and sought help from
other inmates to do so. While in custody, he committed
numerous acts of violence. He smuggled both contraband and
improvised weapons, including an improvised syringe with
which he planned to kill a witness. To ensure courtroom
security, the prosecution urged that defendant wear a REACT
belt and be shackled to a chair affixed to the floor. The defense
opposed all restraints, asserting the only acceptable security
options were to have more bailiffs in the courtroom or to move
defendant’s chair farther away from the witness stand.
At the hearing, the prosecutor argued he was not obliged
to present evidence in support of his motion. He relied on a
footnote from People v. Duran (1976) 16 Cal.3d 282, 293,
footnote 12 (Duran), which described the decision to impose
restraints as “a judicial function in which the prosecutor plays
no necessary part.” The court rejected the argument, explaining
that a finding of manifest need for restraints had to be based on
competent evidence. The prosecutor then drew the court’s
5
Although defendant’s briefing does not state with
specificity, he appears to be raising claims under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution.
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attention to the People’s Notice of Intent to Introduce Evidence
in Aggravation, which described defendant’s solicitations to
have witnesses killed, his acquiring of materials to make a
nitroglycerin “hot shot,” and his many fights and weapons
violations in custody. After further argument, the court stated,
“I’ll make a finding at this time that there is good cause, based
upon the totality of the facts and circumstances, that there be
restraints.” However, the court declined to rule on the type of
restraints that would be ordered until it heard from security
personnel on the “evident necessity for the restraints and the
type of restraints . . . available.” The next day, the court
announced that case law required it to conduct a hearing, make
factual findings concerning the need for restraints, and weigh
the benefits and burdens of shackling against less restrictive
alternatives. The court then heard testimony.
Officer Miramontes, a correctional corporal at the Indio
jail, described defendant’s custodial history. At Pelican Bay,
defendant had been placed in a secure housing unit, the highest
prison security level. Only high-ranking gang members or
inmates with a history of assaulting other inmates are typically
placed there. Defendant’s file indicated he had been validated
as an Aryan Brotherhood associate at both Pelican Bay and
Tehachapi state prisons. He had disciplinary markers at
Riverside County jail for assaulting inmate Clarence Keyes,
“slipp[ing] his handcuffs,” possessing nitroglycerin pills that did
not belong to him, and secreting a syringe, tobacco, and lighter
inside his body. The syringe was considered a weapon, and the
pills could be used to poison another inmate. He also fought
with his cellmate. Due to his many assaults on other inmates,
defendant was placed in administrative segregation housing,
was allowed no inmate contact, and was kept handcuffed outside
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his cell. Miramontes noted that inmates were not searched
when leaving the jail for court, and the jail had no X-ray
machine that could detect a weapon hidden inside the body.
Although defendant always treated staff with respect,
Miramontes believed he needed to be restrained in the
courtroom because he would be a risk to inmates who testified
against him.
Miramontes explained that a REACT belt can deliver a
painful shock one to two seconds after an initial warning beep.
Captain Patrick Tyrrell of the Riverside Sheriff’s Department
testified that, based on his 30 years of experience, the delay
between perception of a danger and activation of the REACT
belt is enough time for an attack to occur. Former Riverside
County Sheriff’s Deputy David Bowser agreed that this delay
made reliance on the REACT belt problematic in defendant’s
case.
Bowser, now an investigator with the district attorney’s
office, testified about the evidence showing defendant had
solicited witness Brian White’s murder. Prison officials had
intercepted a packet of documents defendant’s sister and
Kathleen O’Donnell had sent to inmate Kenneth Cook. The
packet contained photographs of White and highlighted police
reports describing child abuse allegations against White that
had been dismissed. Former Aryan Brotherhood member Brian
Healey informed Bowser that the green highlighting and the
packet in its entirety represented a death warrant against
White. The prosecution also played audiotapes Bowser had
obtained of monitored conversations with a visitor in which
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defendant talked about inmates he wanted to kill and how he
would conform his conduct until he got the chance to explode.6
Finally, Leo Duarte, a special agent with the Department
of Corrections and Rehabilitation, testified about defendant’s
prison record and gang affiliation. Defendant was an Aryan
Brotherhood associate and was trying to become a full member.
Any assault on a witness, courtroom officer, prosecutor, or law
enforcement officer would enhance defendant’s status within
the gang and further his membership goal. Duarte reviewed the
records of defendant’s incarceration from 1990 to 1997, noting
there were “well over 25” disciplinary incidents. Defendant
frequently refused to comply with instructions, possessed
contraband weapons, and fought with other inmates, sometimes
stabbing them. Duarte listed some of these incidents for the
record.
After testimony concluded, the parties discussed seating
defendant in a special chair with a waist belt. Defense counsel
protested that such a chair would prevent defendant from
standing with the rest of the courtroom when the jury entered
and departed. He urged that defendant “should have no more
than the REACT belt.” The prosecutor argued the chair should
be bolted to the floor. At a later hearing, the court announced
its tentative inclination to seat defendant in the restraint chair
6
As one example, defendant told a visitor: “It just happens
like that you know. Just frustration with this place and the cops
and you know my situation in general; you know what I mean?
Just builds up and I shove it all down, shove it all down, put my
smile on you know, shove it all down, till the chance that I get
to explode. Ahhha-ha-ha! Then they wonder why I beat people
half to death. (laughs) When I’m done I’m like, ahhhhha-ha.
It’s almost like a cigarette after sex! (laughs).”
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with a REACT belt. The chair resembled other chairs at counsel
table except that it had a hole in the lower lumbar area, which
was hidden when someone sat in the chair. The prosecutor
again sought to have the chair bolted to the floor, observing he
had found it “relatively easy” to stand when he tested the chair,
but the court responded that the REACT belt and additional
courtroom personnel would be sufficient. In light of the court’s
decision to use the chair, defense counsel withdrew his offer to
stipulate to use of the REACT belt and objected to the use of any
restraints whatsoever. Nevertheless, the court found there was
manifest need, based on “the totality of the facts and
circumstances,” to restrain defendant with both the security
chair and the REACT belt. At defense counsel’s suggestion,
however, the court ordered that defendant and all counsel
remain seated when jurors entered or left the courtroom.
b. Analysis
“In general, the ‘court has broad power to maintain
courtroom security and orderly proceedings’ (People v. Hayes
(1999) 21 Cal.4th 1211, 1269 [91 Cal.Rptr.2d 211, 989 P.2d
645]), and its decisions on these matters are reviewed for abuse
of discretion. (People v. Stevens (2009) 47 Cal.4th 625, 633 [101
Cal.Rptr.3d 14, 218 P.3d 272].) 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 [127 Cal.Rptr. 618, 545 P.2d 1322].)
Similarly, the federal ‘Constitution forbids the use of visible
shackles . . . unless that use is “justified by an essential state
interest” — such as the interest in courtroom security — specific
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
to the defendant on trial.’ (Deck v. Missouri (2005) 544 U.S. 622,
624 [161 L.Ed.2d 953, 125 S.Ct. 2007], 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 [124 Cal.Rptr.2d 161, 52
P.3d 95].)” (People v. Lomax (2010) 49 Cal.4th 530, 558–559
(Lomax).)
“In determining whether there is a manifest need to
restrain the defendant, courts consider several factors,
including evidence that the defendant poses a safety or flight
risk or is likely to disrupt the proceedings.” (People v. Simon
(2016) 1 Cal.5th 98, 115 (Simon).) Although no formal hearing
on the matter is required (Lomax, supra, 49 Cal.4th at p. 559),
“when the use of restraints is based on conduct of the defendant
that occurred outside the presence of the trial court, sufficient
evidence of such conduct must be presented on the record so that
the court may make its own determination of the nature and
seriousness of the conduct and whether there is a manifest need
for such restraints. [Citation.] The court may not, we have
emphasized, merely rely on the judgment of law enforcement or
court security officers or the unsubstantiated comments of
others.” (Simon, at p. 115.) Finally, when the evidence
establishes a manifest need for restraints, the court should
impose the least obtrusive or restrictive restraint that would be
effective under the circumstances. (Ibid.; see People v. Mar,
supra, 28 Cal.4th at p. 1226.)
Defendant first complains the court’s decision to impose
restraints was based solely upon the prosecutor’s unsworn
allegations of dangerousness. This argument is based on the
court’s statement at the close of the first hearing that “at this
time” it found “good cause, based upon the totality of the facts
20
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
and circumstances,” to impose some type of restraints. The
court made this announcement after hearing the prosecutor
describe the violent incidents the People intended to present in
aggravation, including defendant’s many in-custody fights and
weapons violations along with his attempts to have witnesses
killed. Read in context, the statement appears to reflect the
court’s tentative view, pending confirmation of these incidents
through evidence presented to the court. It began that inquiry
the next day.
The record indicates the court well understood its
obligation to base its decision on evidence and not merely the
representations of counsel. (See People v. Cox (1991) 53 Cal.3d
618, 651–652; Duran, supra, 16 Cal.3d at p. 291.) At the outset
of the first hearing, the court disputed the prosecutor’s assertion
that he was not obliged to present evidence because a footnote
in Duran stated that “[t]he imposition of restraints . . . is
normally a judicial function in which the prosecutor plays no
necessary part.” (Duran, at p. 293, fn. 12.) The court required
that “the showing . . . of manifest need for the restraints must
be through evidence.” They debated the issue at some length
and, near the end of the hearing, the court repeated its concern
that it had heard no testimony about the need for restraints or
the type of restraints available. The prosecutor said he could
provide further documentation of defendant’s misconduct, and
the court responded, “I think that would be advisable, . . . so that
we can make an assessment of the evident necessity for the
restraints and the type of restraints which are available through
the sheriff’s department.” The debate continued at the start of
the next hearing until the court insisted that it could not make
a ruling until it had received evidence. The court told the
prosecutor: “With respect to the issue of court security, it is
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Opinion of the Court by Corrigan, J.
indeed the court’s duty to provide for court security. But with
respect to the Duran case and the footnote that you referred to
earlier, that does not indicate that the People have no part in
presenting the evidence before the court. Indeed, the court is
not the party which presents evidence. And if there is no
evidence presented to the court, then the court cannot make a
reasoned and intelligent decision.”7 The court went on to discuss
a Court of Appeal case holding “that the court must conduct a
prior hearing to determine the need for restraints, and must
consider the defendant’s history individually on the record.”
Thereafter, the court heard testimony from five witnesses before
ultimately finding “manifest need” for the restraints it imposed.
Considering the record as a whole, it is clear the court
understood its obligation to base its ruling on evidence and
proceeded accordingly.
Next, defendant contends the restraints were not justified
and were improperly ordered as a general prophylactic measure.
On the contrary, the court’s conclusion was well supported. The
court heard extensive evidence at the hearing about defendant’s
violent and dangerous behavior in custody. He solicited
assistance in having witnesses killed, was repeatedly found with
weapons in custody, had “slipped his handcuffs” while at the
county jail, stole dangerous medication, and hid a syringe inside
a body cavity. For the better part of a decade, he repeatedly
assaulted other inmates, amassing a disciplinary record of “well
over 25 incidents.” Contrary to defendant’s assertion that prior
7
We note that the next sentence in the Duran footnote
referred to by the prosecutor reads in part, “the prosecutor may
bring to the court’s attention matters which bear on the issue”
of restraints. (Duran, supra, 16 Cal.3d at p. 293, fn. 12.)
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Opinion of the Court by Corrigan, J.
violence or misbehavior outside the courtroom cannot establish
manifest need, we have repeatedly upheld the use of shackles
and other restraints when a defendant has assaulted other
inmates or possessed weapons while in custody. (See, e.g.,
People v. Miracle (2018) 6 Cal.5th 318, 347 (Miracle) [four
violent incidents in custody justified handcuffs and leg
shackles]; Simon, supra, 1 Cal.5th at pp. 116–117 [possession of
shanks and materials for making explosives justified stun belt];
People v. Wallace (2008) 44 Cal.4th 1032, 1049–1050 [five
jailhouse fights and possession of razors justified leg restraints];
People v. Combs (2004) 34 Cal.4th 821, 838 [possession of two
shanks and threats against jail deputies justified leg restraints];
People v. Hawkins (1995) 10 Cal.4th 920, 943–944 (Hawkins)
[three jailhouse fights and extensive criminal record justified
restraint in a security chair].)8 “The fact that these incidents
occurred outside of the courtroom does not diminish their
relevance or their support for the trial court’s order.” (Miracle,
at p. 347.)
Defendant’s in-custody fights and weapons offenses alone
constituted “a record showing of violence” justifying the
imposition of restraints. (Duran, supra, 16 Cal.3d at p. 291.)
But there was more. The court heard evidence that defendant
had solicited Aryan Brotherhood associates to kill Brian White,
who would be one of the primary witnesses against him at trial.
Defendant’s assembly of this “death warrant,” combined with
8
Although defendant protests that some of his disciplinary
incidents were remote in time, the evidence showed he was
moved to administrative segregation while awaiting trial
because of his frequent fighting. Defendant’s persistent history
demonstrates a long-standing record of violence, rather than a
remote or isolated incident.
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
his demonstrated readiness to use violence, indicated he posed
a significant threat to the witnesses testifying against him. A
documented risk of violence against witnesses may also justify
the use of restraints. In People v. Livaditis (1992) 2 Cal.4th 759,
775, for example, we upheld shackling during the testimony of
a witness the defendant had held hostage and terrorized. And
in People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
391–392 (Bryant, Smith and Wheeler), we concluded stun belts
were permissible in a multidefendant trial to prevent escape
attempts and potential assaults against prosecution witnesses.
Although defendant protests that he never disrupted courtroom
proceedings, the decision to impose restraints need not be based
solely on a defendant’s courtroom conduct. (Hawkins, supra, 10
Cal.4th at p. 944; Livaditis, at p. 744.) Defendant’s compliance
with court staff in pretrial proceedings did not necessarily
foreshadow how he would behave when confronted with
witnesses against him, some of whom he had threatened to kill
or tried to have killed. The argument ignores defendant’s own
taped statements that when frustration at his situation builds
up, he will “shove it all down, till the chance that I get to
explode” and acknowledging that he “beat[s] people half to
death.”
Defendant also complains his restraints were excessive.
“Generally, when physical restraints are called for, a trial court
should impose ‘the least obtrusive or restrictive restraint’ that
will ensure effective security.” (Lomax, supra, 49 Cal.4th at
p. 562.) Here, the court considered evidence from several
witnesses about the appropriate available restraints.
Miramontes, Tyrrell, and Bowser all described the delay
between the supervising monitor’s detection of impending
danger, the REACT belt’s activation, and ultimate delivery of a
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
shock. Tyrrell and Bowser each testified that this delay could
allow sufficient time for the wearer to initiate an assault.
Finally, Special Agent Duarte related that a courtroom assault
would enhance defendant’s status with the Aryan Brotherhood
and might provide additional incentive to engage in such
conduct. When asked, these witnesses agreed that the safest
course to prevent attacks, absent chains, would be for defendant
to wear the stun belt and be tethered to the floor. Another
witness, Sergeant Susan Trevino, discussed the option of a
security chair with restraints that would be apparent to the
jury. The trial court had broad discretion to evaluate this
evidence and decide which security measures were appropriate.
(Miracle, supra, 6 Cal.5th at p. 348; see People v. Stevens, supra,47 Cal.4th at p. 642.) Defendant had a lengthy history of
violence. He stood well over six feet tall with an estimated
weight nearing 250 pounds. Considering all the circumstances,
we cannot conclude the court exceeded “ ‘the bounds of reason’ ”
(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 390) by
ordering that defendant wear the REACT belt and be confined
to a chair. These security measures were less restrictive and
obtrusive than the restraint chair Sergeant Trevino discussed.
c. Prejudice
Defendant urges that the restraints were prejudicial
because they were painful, which caused him to be absent from
part of the trial, impaired his participation, and impugned the
dignity of the courtroom. It is settled “that courtroom shackling,
even if error, was harmless if there is no evidence that the jury
saw the restraints, or that the shackles impaired or prejudiced
the defendant’s right to testify or participate in his defense.”
(People v. Anderson (2001) 25 Cal.4th 543, 596 (Anderson).) We
have concluded defendant’s restraints were justified by manifest
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Opinion of the Court by Corrigan, J.
need and the court did not err in imposing them. Even were a
claim of error successfully made, the record does not support
defendant’s assertions of prejudice.
When jury selection was underway, defense counsel noted
outside the jurors’ presence that the security chair had been
placed in its lowest position and defendant found it
uncomfortable. The prosecutor said that, according to sheriff’s
deputies, the chair was most effective when placed in its lowered
setting. The court declined to order the chair raised. The next
day, defendant moved for reconsideration. He declared that he
had a preexisting back injury that sometimes made him unable
to get out of bed. He stated, “Because of my height and the
position of my knees, keeping my chair as low as possible
aggravates my back condition and makes my left leg go numb.”9
Finally, he predicted that continued use of the lowered chair
could cause undue pain and prevent his attendance at trial. The
court observed that the chair was meant to be used in its lowest
position and should have been in that position from the
beginning. Although it might reconsider the order if presented
with evidence substantiating defendant’s claims, the court did
not find the declaration alone sufficient evidence of a back
condition to justify a change in the chair’s height. The court
further observed that defendant’s chair was of the same type as
the others at counsel table and allowed defendant sufficient leg
room under the table. While the seat of defendant’s chair was
lower than the others, due to his height he still sat taller than
9
Various documents reflect defendant’s height as six feet
one inch, six feet two inches, or six feet five inches. During
argument below, counsel did not make a specific record of
defendant’s height.
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
the attorneys. After this ruling, defense counsel conveyed
defendant’s request “to voluntarily absent himself from the
proceedings until he can sit up,” indicating the chair had caused
pain and “problems” the night before. The court replied that
defendant “can certainly voluntarily absent himself from the
proceedings at any time. And if he wants to do that, he can do
that.”
When trial resumed four days later, the court noted that
defendant was voluntarily absent. Defense counsel reported
that defendant had previously instructed his attorneys to simply
sit in court and put on no defense. Counsel was not concerned
about defendant’s absence during part of jury selection but
noted, “at some point we need to have Mr. Poore here to decide
what he’s going to do . . . in this trial.” Counsel planned to
discuss the matter with defendant that afternoon. The next
morning, defendant was again absent. Counsel reported that he
had been unable to speak with defendant because jail officials
had “taken [him] somewhere for x-rays.” Voir dire continued
without defendant’s presence, but he returned to court the next
day.10 The following week, defense counsel said defendant had
called from jail and “could barely speak” due to an illness that
was also affecting a courtroom deputy. Although counsel
conceded defendant had voluntarily absented himself from part
of the voir dire once before, he believed defendant was required
to be present for the actual selection of jurors. After reviewing
10
The record indicates the court had divided the entire panel
into smaller groups for voir dire. After examination of each
subgroup, the court entertained stipulations and challenges for
cause. Defendant was present for a substantial part of the
general voir dire, including that of the two panelists he asserts
were wrongly excused for cause. (See, post, at pp. 32–41.)
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
the case law, the court agreed jury selection could not proceed
further until defendant was present. It ordered that defendant
be examined by a medical expert and called a recess until
afternoon to permit this examination. Defendant had
complained of nausea but had not requested a doctor. When
proceedings resumed, defendant was present.
Defendant first complains his restraints caused such pain
that they were presumptively prejudicial. Although it is true
the state may not impose “ ‘wanton and unnecessary’ pain” on
inmates or pretrial detainees (Hope v. Pelzer (2002) 536 U.S.
730, 738), defendant presents “no authority for the proposition
that, even when the need for shackling is manifest, the
restraints must be removed if they cause discomfort.” (People v.
Smith (2015) 61 Cal.4th 18, 45.) Assuming such a claim is
appropriate, it is unsupported here. Defendant asserted the
security chair’s height caused him back pain but presented no
independent verification of his complaints. The court was not
required to accept defendant’s uncorroborated declaration at
face value. The court invited the defense to submit additional
evidence that the chair’s position was inflicting pain, but none
was forthcoming. Moreover, although defendant absented
himself from trial for two days, he did not renew his complaints
of pain after returning to court, even though the chair remained
in its lowest position. Especially when, as here, there is no
suggestion the jury saw the restraints,11 we will not presume
11
Because there is no indication the restraints were ever
seen by jurors, defendant’s claim that the restraints “violated
the dignity and decorum of the courtroom” is similarly
unsupported. Defendant faults the court for failing to ask jurors
whether they saw the restraints, but doing so would have
defeated the purpose of keeping the restraints concealed.
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
prejudice without evidence the restraints hampered the
defendant’s ability to participate in the trial. (See People v.
Letner and Tobin (2010) 50 Cal.4th 99, 156; Anderson, supra, 25
Cal.4th at p. 596.) The record contains no independent evidence
that the chair’s height caused discomfort or that defendant’s
height, or any other condition, made such discomfort likely.
Nor did the court abuse its discretion in ordering that the
chair be kept in its lowest position. The issue of restraints was
discussed many times, and several witnesses testified about the
best ways of securing defendant to prevent a courtroom attack.
Some options were highly restrictive, like a security chair with
visible restraints or a chair bolted to the floor. The court
considered all of these options and chose a middle course, opting
to use a security chair that was not affixed to the floor but was
kept in its lowest position. The lowered seat height would have
made it difficult for defendant to rise quickly from a seated
position. Considering the testimony about reaction time delays
in activating the stun belt, it was reasonable for the court to
order a chair height setting that would provide the most
security.
Defendant’s related claim that the restraints negatively
affected his demeanor also lacks support in the record.
Defendant complains the stun belt had “the possibility of an
impact on [his] mental faculties or demeanor” and that this
Defendant’s additional complaint that the court should have
instructed jurors to disregard any visible restraints is also
unavailing. We have cautioned that such an “instruction should
not be given unless requested by defendant,” since it might draw
attention to the restraints and create prejudice that might
otherwise have been avoided. (Duran, supra, 16 Cal.3d at
p. 292.) Defendant did not request the instruction.
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
“potential impact” warrants reversal of his conviction. (Italics
added.) The phrasing of these claims reveals their speculative
nature. Defendant points to no evidence whatsoever
demonstrating that the restraints interfered with his ability to
participate in the trial. Indeed, defendant testified at length in
the guilt phase. There is no indication he suffered any
impairment while doing so, nor did he ever voice such a
complaint.
Finally, defendant contends pain from the restraints
caused him to be absent from trial. The record does not support
defendant’s claim that his absence was related to any discomfort
from the stun belt or security chair. After defendant complained
about the chair height, proceedings did not resume until four
days later. Defendant was voluntarily absent at that session
and the next day, when defense counsel reported that he had
been taken for X-rays. But the record does not demonstrate that
this absence was due to continuing pain from one day of sitting
in a lowered chair, followed by a four-day respite, as opposed to
disaffection with the court’s ruling. No evidence was ever
produced as to what defendant’s X-rays showed, and he returned
to court the day after they were reportedly taken. When
defendant was absent the following week, he complained not of
back pain but of a respiratory or intestinal illness. There is no
claim that this illness was related to the restraints.
To the extent defendant asserts error due to his absence
itself, we conclude he waived his constitutional right to be
present and the evident 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.” (People v. Bell
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
(2019) 7 Cal.5th 70, 114 (Bell); see Illinois v. Allen (1970) 397
U.S. 337, 338.) Voir dire of prospective jurors is a critical stage
for purposes of this constitutional right. (People v. Wall (2017)
3 Cal.5th 1048, 1059 (Wall).) However, a capital defendant may
waive the constitutional right to be present, so long as the
waiver is knowing, intelligent, and voluntary. (Ibid.; see Bell,
at p. 114.) Defendant made such a waiver. Immediately after
the court denied his request to raise the seat height, defendant
conferred with his attorney, who conveyed, in his presence,
defendant’s request “to voluntarily absent himself from the
proceedings until he can sit up.” Thereafter, the court and
defense counsel consistently described defendant’s absence as
voluntary. The record presents no reason to doubt the validity
of defendant’s waiver. There was no constitutional error. (See
Bell, at p. 115.)
There was, however, statutory error under sections 977
and 1043, a point the Attorney General concedes. “ ‘[W]hen 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).’
([People v.] Jackson [(1996)] 13 Cal.4th [1164,] 1210.) ‘ “Section
977 requires . . . that the defendant personally execute, in open
court, a written waiver of the right to be present.” ’ (People v.
Romero (2008) 44 Cal.4th 386, 418 [79 Cal.Rptr.3d 334, 187 P.3d
56].)” (Wall, supra, 3 Cal.5th at p. 1060.) Those requirements
were not met. But in such an instance 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 [299 P.2d 243].)” (Bell, supra, 7
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PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
Cal.5th at p. 116; see Wall, at pp. 1060–1061; People v. Weaver
(2001) 26 Cal.4th 876, 968.) Defendant was absent for part of
the voir dire but was back in court when the parties exercised
peremptory challenges and agreed upon the jury as sworn.
Defendant does not explain how his attorneys’ questioning of
some prospective jurors might have differed had he been
present, nor does he offer any other fact-based argument for how
he might have suffered prejudice. Accordingly, “we find no
reasonable probability in this case that a different jury would
have been chosen or that the jury chosen would have reached a
different verdict had [defendant] been present during” the entire
voir dire. (Wall, at p. 1061.)
2. Jury Selection
a. Excusals for Cause
Defendant contends the court violated his state and
federal constitutional rights to due process and a fair and
impartial jury by erroneously dismissing two prospective jurors
based on their death penalty views. Although the question is
close, in light of the deference given to trial courts based on their
ability to observe prospective jurors’ intonation and demeanor,
we conclude substantial evidence supports the court’s rulings.
“Criminal defendants have a constitutional right to an
impartial jury, and ‘a prospective juror’s personal views
concerning the death penalty do not necessarily afford a basis
for excusing the juror for bias.’ [Citation.] Instead, consistent
with the constitutional imperative, prospective jurors may be
dismissed for cause only if their views on capital punishment
‘ “would ‘ “prevent or substantially impair” ’ the performance of
[their] duties as defined by the court’s instructions and [their]
oath.” ’ ” (People v. Turner (2020) 10 Cal.5th 786, 810–811
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Opinion of the Court by Corrigan, J.
(Turner); see Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt);
Witherspoon v. Illinois (1968) 391 U.S. 510, 521–522.) A
panelist’s bias against the death penalty need not be shown with
“ ‘unmistakable clarity.’ ” (Witt, at p. 424.) “Jurors commonly
supply conflicting or equivocal responses to questions directed
at their potential bias or incapacity to serve.” (People v.
Martinez (2009) 47 Cal.4th 399, 426.) Indeed, some “prospective
jurors ‘simply cannot be asked enough questions to reach the
point where their bias has been made “unmistakably clear”;
these [prospective jurors] may not know how they will react
when faced with imposing the death sentence, or may be unable
to articulate, or may wish to hide their true feelings.’ ” (People
v. Beck and Cruz (2019) 8 Cal.5th 548, 607 (Beck and Cruz).)
Nevertheless, excusal is appropriate if, “the trial judge has been
‘left with the definite impression that a prospective juror would
be unable to faithfully and impartially apply the law.’ ([Witt,]
at p. 426; accord, People v. Thompson (2016) 1 Cal.5th 1043,
1066 [210 Cal.Rptr.3d 667, 384 P.3d 693].)” (People v.
Armstrong (2019) 6 Cal.5th 735, 751 (Armstrong).)
“Our review in this area is necessarily deferential because
‘the trial court, through its observation of the juror’s demeanor
as well as through its evaluation of the juror’s verbal responses,
is best suited to reach a conclusion regarding the juror’s actual
state of mind.’ (People v. Jones (2012) 54 Cal.4th 1, 41 [140
Cal.Rptr.3d 383, 275 P.3d 496]; see Uttecht v. Brown (2007) 551
U.S. 1, 7 [167 L.Ed.2d 1014, 127 S.Ct. 2218].) In applying
deferential review, ‘appellate courts recognize that a trial judge
who observes and speaks with a prospective juror and hears that
person’s responses (noting, among other things, the person’s
tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the
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Opinion of the Court by Corrigan, J.
record.’ (People v. Stewart (2004) 33 Cal.4th 425, 451 [15
Cal.Rptr.3d 656, 93 P.3d 271] . . . .) Accordingly, the trial court’s
determination as to the juror’s true state of mind is binding on
appeal if supported by substantial evidence. ([People v.]
Thompson, supra, 1 Cal.5th at p. 1066; Martinez, supra, 47
Cal.4th at pp. 426–427.)” (Turner, supra, 10 Cal.5th at p. 811.)
Defendant’s claim points to two panelists in particular.
Their questionnaire and voir dire responses provide background
for their ultimate excusal. Panelist N.S. indicated some support
for the death penalty in her jury questionnaire. She responded,
“For it,” when asked for her feelings about the death penalty but
did not elaborate. In response to the court’s voir dire question,
she explained that she agreed with the death penalty “[i]f the
case is right” and “under certain circumstances.” N.S. checked
questionnaire boxes indicating the death penalty should
“sometimes” be imposed for intentional killings and “usually”
imposed for killings during a robbery or for financial gain.
However, when asked to rate her support for the death penalty,
she checked an option that stated, “I have no position for or
against the death penalty; however, would consider the
imposition of the death penalty in some cases.” She also
indicated that her views about the death penalty had changed,
explaining that there were too many cases of wrongful
imprisonment brought to light by DNA testing. In voir dire, she
said she had seen a talk show featuring five men who had been
released from prison after DNA exonerated them. Finally, when
asked in the questionnaire what the death penalty
accomplishes, N.S. wrote, “The only thing it really does is make
the family of the murdered victim feel compensated.”
Panelist J.W.’s questionnaire responses were equivocal.
J.W. wrote: “If I felt the defendant was guilty beyond any doubt
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Opinion of the Court by Corrigan, J.
I would be for the death penalty but would rather vote for life in
prison.” When questioned in voir dire, J.W. said she realized the
criminal standard only required proof of guilt beyond a
reasonable doubt. J.W. marked on the questionnaire that death
was “sometimes” the appropriate punishment in some
situations, “usually” appropriate for a killing during a robbery,
and “never” appropriate for the killing of a relative. She checked
a box indicating that she was in favor of the death penalty but
would not always vote for death and would weigh the
aggravating and mitigating circumstances. Even so, she was
“somewhat” concerned that religious beliefs would impact her
vote, explaining that she had never before “come face to face
with a death penalty decision.”
Later in voir dire, the prosecutor posed questions to a
small group of panelists that included N.S. and J.W. After one
panelist who was generally opposed to the death penalty
confirmed that he could set aside those feelings, weigh the
aggravating and mitigating factors, and impose death if it was
warranted, the prosecutor asked how others felt about the death
penalty. N.S. spoke up immediately, saying, “I’m for the death
penalty, but I would have to be honest and say if it got down to
the point that I had to say[,] ‘Kill him,’ I really can’t honestly
say. I don’t know if I could do it or not.” The prosecutor thanked
her for the answer, and J.W. interjected, “Sir, I feel the same
way she does.” The prosecutor asked, “So when it comes down
to it, you’re not sure?” J.W. responded, “I am not sure if when it
comes down to the nitty-gritty, whether I could do that, vote to
kill him.”
The prosecutor later returned to N.S., asking about her
apparent reluctance to serve. N.S. explained: “Well, because of
. . . the death penalty thing, I really . . . — I would — might be
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Opinion of the Court by Corrigan, J.
doing an injustice, because even though he was found 100-
percent guilty in every respect, I don’t know if I could live with
myself after saying I am putting someone to death. I don’t know
if I could live with myself.” She then summarized, “I might be
able to do it, but I don’t know.” Over defendant’s objection, the
court granted the prosecution’s challenges and excused N.S. and
J.W. for cause.12
The record supporting these rulings is thin, but we
conclude it is sufficient to support the excusals. Although the
jurors had expressed some degree of support for the death
penalty in theory, each separately spoke up and volunteered a
doubt that she could actually cast such a vote. “Even if a
prospective juror’s questionnaire responses express a
willingness to consider the death penalty, an excusal for cause
is appropriate if oral questioning establishes that the juror’s
views on capital punishment would, in fact, substantially impair
her ability to return a death sentence.” (People v. Winbush
(2017) 2 Cal.5th 402, 429 (Winbush).) While the records
supporting impairment are typically more robust than the one
we encounter here, we have frequently upheld the excusal of
panelists who doubt their own ability to vote to impose the death
penalty despite their general support for it. In Turner, supra,
10 Cal.5th at page 813, for example, the court did not err in
excusing a juror who “may have supported the death penalty in
theory,” but whose “voir dire responses made it clear she felt
great reluctance about actually voting to impose it.” The record
was similar in People v. Baker (2021) 10 Cal.5th 1044 (Baker).
12
When the jury was ultimately selected, neither side came
close to exhausting its allotted peremptory challenges, with the
prosecution using only half.
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Opinion of the Court by Corrigan, J.
There, we upheld the dismissal of a juror whose questionnaire
had professed openness to the death penalty but who
equivocated in voir dire and, when asked if he could actually
vote for death, ultimately answered, “ ‘I don’t know. I just don’t
know.’ ” (Id. at p. 1086.) Our death penalty cases are replete
with similar examples of panelists whose excusals were upheld
after they expressed doubts about their personal ability to vote
for the death penalty even when objectively, in their judgment,
the facts would warrant it. (See, e.g., People v. Suarez (2020) 10
Cal.5th 116, 141 (Suarez) [“ ‘I am not sure if I could do this or
not’ ”]; People v. Miles (2020) 9 Cal.5th 513, 564–565 (Miles) [“ ‘I
don’t know if I could follow the law. There’s . . . just a good
chance that I would or I wouldn’t. You’re going to have to pick
me and have me sit here and see, because I just don’t know’ ”];
People v. Solomon (2010) 49 Cal.4th 792, 831 [“ ‘I don’t know. I
don’t know’ ”].)
Defendant protests that a juror is not substantially
impaired simply because she cannot predict how she would vote
before hearing the evidence. In a similar vein, he argues it is
error to excuse a prospective juror who refuses to guarantee a
vote for death. (See Armstrong, supra, 6 Cal.5th at p. 756.) But
neither of these characterizations captures what N.S. and J.W.
actually said. The trial court carefully explained to the panelists
that jurors only had a choice to vote for death under very limited
circumstances. If mitigating evidence predominated over
aggravating evidence, they had to vote for life imprisonment
without the possibility of parole. If mitigating and aggravating
evidence were equal, again, they had to vote for life
imprisonment. “Only if the aggravating or bad evidence is
greater than the mitigating or good evidence [did they] have a
choice.” The court explained that the law would not tell jurors
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Opinion of the Court by Corrigan, J.
what to do but that they only had the option to vote for death
when they found the aggravating evidence so substantial in
comparison to mitigating evidence that death was warranted.
These instructions accurately described the showing necessary
before a death sentence could even be considered. Even so, N.S.
and J.W. each interjected to voice doubts about whether she
could realistically vote for death in any circumstance. “While it
is true that a prospective juror is not disqualified merely
because she would find it difficult to impose the death penalty”
(Turner, supra, 10 Cal.5th at p. 814; see People v. Merriman
(2014) 60 Cal.4th 1, 53), these panelists did not merely note the
difficulty of reaching a penalty decision. They went on to
question their actual ability to vote for death under any
circumstances. “When a prospective juror repeatedly says he
does not know whether he could realistically impose the death
penalty, we will not second-guess the trial court’s determination
that the juror is substantially impaired.” (Turner, at p. 815; see
Miles, supra, 9 Cal.5th at pp. 565–567; Wall, supra, 3 Cal.5th at
p. 1063.)
Defendant also argues the court should not have
dismissed these panelists without probing their views through
more questioning, in particular concerning whether they could
set aside their beliefs and vote for death. Initially, we note that
this argument misapprehends the reason the panelists were
substantially impaired from serving. The basis was not that
they opposed the death penalty and would have to consider
whether they could nevertheless follow the instructions and
impose that sentence if it was warranted. In fact, both women
wrote in their questionnaires that they generally supported the
death penalty, at least in some circumstances. The problem
here was that, despite their theoretical support for the penalty,
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both doubted that they themselves could cast such a vote. As
N.S. said twice in that regard: “I don’t know if I could live with
myself.”
We do agree, though, that the questioning of these
panelists was sparse and probably approaches the minimum of
what may suffice to support a cause excusal on appeal. “Before
excusing a juror for cause, ‘ “the court must have sufficient
information regarding the prospective juror’s state of mind to
permit a reliable determination” ’ concerning whether the
juror’s views on capital punishment would impair his or her
performance as a juror in a capital case. (People v. Leon (2015)
61 Cal.4th 569, 592 [189 Cal.Rptr.3d 703, 352 P.3d 289], italics
omitted . . . , quoting People v. Stewart, supra, 33 Cal.4th at p.
445.) To ensure that its excusal of a prospective juror for cause
is consistent with the constitutional standard, the court must
make ‘ “a conscientious attempt to determine a prospective
juror’s views . . . .” ’ ” (People v. Schultz (2020) 10 Cal.5th 623,
652.) The questioning here, particularly of J.W., was minimal.
After N.S. volunteered her doubts and J.W. spoke up to say she
felt the same way, the prosecutor merely asked J.W. to clarify
whether she was “not sure” if she could vote for death “when it
comes down to it,” and J.W. confirmed that she was “not sure”
whether she could return such a vote. Neither the court nor
attorneys for either side followed up on this response. J.W.’s
demeanor may have made her inability to serve apparent to all
in the courtroom. But the cold record seldom captures
indications like facial expressions, tones of voice, or hesitancy in
responding. The court and counsel should take care to ensure
that the record captures these relevant but more nuanced and
unvocalized pieces of information. As we have repeatedly
reminded trial courts, prospective jurors should be questioned
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at sufficient length to clearly establish their ability to impose
the death penalty, and a thorough voir dire assists our review of
Witt claims. (See People v. Capistrano (2014) 59 Cal.4th 830,
860 (Capistrano); People v. Stitely (2005) 35 Cal.4th 514, 539.)
Nevertheless, “[t]he trial court was in the best position to
observe [the panelists’] demeanor, vocal inflection, and other
cues not readily apparent on the record, and we reasonably infer
that the trial court based its decision not only on what [the
panelists] said, but also on how [they] said it.” (People v. Flores
(2020) 9 Cal.5th 371, 388.) According substantial deference to
the trial court, as we must (see Uttecht v. Brown, supra, 551 U.S.
at p. 7), we conclude there is sufficient evidence to support the
excusal of N.S. and J.W. for cause. These panelists had been
advised of a capital juror’s duty. With that standard in mind,
and without being faced with a direct question, they each
volunteered doubts about their ability to fulfill this duty. “If a
prospective juror states unequivocally that he or she would be
unable to impose the death penalty regardless of the evidence,
the prospective juror is, by definition, someone whose views
‘would “prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.” ’ (Witt, supra, 469 U.S. at p. 424.)” (Capistrano, supra,
59 Cal.4th at p. 859.) Here, while the panelists did not state
absolutely that they could not impose a death sentence, they
clearly expressed doubts about their ability to do so even if the
evidence warranted it. Under our precedents, their expressions
of doubt demonstrated substantial impairment. (See Baker,
supra, 10 Cal.5th at pp. 1086–1087; Turner, supra, 10 Cal.5th
at p. 815; Suarez, supra, 10 Cal.5th at pp. 142–143; Miles,
supra, 9 Cal.5th at pp. 565–566.) Tellingly, defendant did not
seek to question these panelists below, nor does he suggest here
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Opinion of the Court by Corrigan, J.
any questions that could have shed more light on the issue. The
record is sufficient to support the court’s ruling.
Finally, relying on the dissenting opinion in Capistrano,
defendant suggests deference to the trial court is inappropriate
because the record includes no reference to the excused
panelists’ demeanor. The voir dire process here was very
different from the one we considered in Capistrano. There, the
trial court conducted a preliminary screening and asked
whether any panelists would be unable to impose the death
penalty. It then excused, without further questioning, all who
answered “yes.” (Capistrano, supra, 59 Cal.4th at p. 854.) Over
the dissent’s criticism that this inquiry was insufficient, we
concluded the panelists’ unequivocal responses demonstrated
their substantial impairment to serve as capital jurors. (Id. at
p. 859.) We also concluded deference was owed to the trial court
even though the questioning was brief. “The fact remains the
trial court was present at the voir dire and we were not.” (Id. at
p. 860.) The voir dire here was more extensive than in
Capistrano, encompassing questions from the court and counsel
posed to a small group of panelists. The court had ample time
to observe the demeanor of N.S. and J.W., both while answering
questions and reacting to the answers of others. Moreover,
deference to its ruling is appropriate even if the court did not
specifically comment about their demeanor on the record. (See
People v. Silveria and Travis (2020) 10 Cal.5th 195, 249.) Again,
however, we emphasize that a more complete record of
demeanor and other nonverbal information substantially assists
the process of review.
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b. Constitutionality of Death Qualification
Defendant next argues the process of disqualifying jurors
who would not impose the death penalty violates due process
and the right to an impartial jury and is inconsistent with the
framers’ understanding of the Sixth Amendment. Because he
did not raise these objections below, they are forfeited. (See
People v. Mendoza (2016) 62 Cal.4th 856, 913; People v. Howard
(2010) 51 Cal.4th 15, 26 (Howard).) They also fail on the merits.
We have rejected similar challenges in previous cases, and
defendant’s new argument about original intent does not
persuade us to reconsider our settled views.
Apart from his constitutional arguments, defendant
suggests we reconsider People v. Riser (1956) 47 Cal.2d 566,
which approved of the death qualification process in California.
Although a literal reading of the cause challenge statute (Code
Civ. Proc., § 229) does not require the exclusion of jurors who
cannot or will not vote for the death penalty, Riser explained
that permitting such jurors to serve would do violence to the
purpose of the death penalty law and “would in all probability
work a de facto abolition of capital punishment, a result which,
whether or not desirable of itself, it is hardly appropriate for this
court to achieve by construction of an ambiguous statute.”
(Riser, at p. 576.) We recently reaffirmed Riser’s holding
(Suarez, supra, 10 Cal.5th at p. 138) and, finding no compelling
reason to depart from it, do so again.
As defendant acknowledges, both this court and the
United States Supreme Court have consistently upheld the
constitutionality of the death qualification process. The
exclusion of panelists who are substantially impaired from
performing their duties as a capital juror does not violate the
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Opinion of the Court by Corrigan, J.
Sixth Amendment’s guarantee of an impartial jury. (Lockhart
v. McCree (1986) 476 U.S. 162, 177–178; People v. Taylor (2010)
48 Cal.4th 574, 602.) The high court’s decision in Lockhart
“remains good law despite some criticism in law review articles.
[Citations.] ‘We may not depart from the high court ruling as to
the United States Constitution, and defendant presents no good
reason to reconsider our ruling[s] as to the California
Constitution.’ ” (Howard, supra, 51 Cal.4th at p. 26.) Nor does
the death qualification process violate capital defendants’
constitutional right to a jury drawn from a fair cross-section of
the community. (Lockhart, at pp. 173–177; Suarez, supra, 10
Cal.5th at p. 139; Taylor, at p. 603.) “ ‘Death qualification,’
unlike the wholesale exclusion of blacks, women, or Mexican-
Americans from jury service, is carefully designed to serve the
State’s concededly legitimate interest in obtaining a single jury
that can properly and impartially apply the law to the facts of
the case at both the guilt and sentencing phases of a capital
trial. There is very little danger, therefore, . . . that ‘death
qualification’ was instituted as a means for the State to
arbitrarily skew the composition of capital-case juries.”
(Lockhart, at pp. 175–176, fn. omitted.)
Relying primarily on law review articles, defendant
argues the high court’s death qualification jurisprudence should
be reexamined in light of the original understanding of the jury
trial right. Because the practice of removing potential jurors
who could not vote for death did not develop until the early
nineteenth century, defendant argues it is too “recent” a
development to command adherence today. He notes that the
United State Supreme Court has reexamined much of its Sixth
Amendment jurisprudence on this basis in the past 15 years
(see, e.g., Apprendi v. New Jersey (2000) 530 U.S. 46643
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
(Apprendi); Crawford v. Washington (2004) 541 U.S. 36) and
overturned several venerable precedents in the process. That
may be. However, this court is not the United States Supreme
Court, and we are not empowered to alter federal constitutional
law. Defendant’s challenge to the Witherspoon-Witt framework
is more appropriately addressed to the high court. (See
Capistrano, supra, 59 Cal.4th at p. 864.) Because defendant
raises no separate challenge to our holdings under the
California Constitution, we have no occasion to reconsider those
decisions.
B. Penalty Phase Issues
1. Absence of Penalty Phase Defense
Defendant contends the absence of a penalty phase
defense rendered his death verdict constitutionally unreliable.
We have consistently rejected such claims and do so again here.
a. Background
Shortly after the jury returned guilty verdicts, defense
counsel reported that defendant wanted to represent himself in
the penalty phase. (See Faretta v. California (1975) 422 U.S.
806.) Asked how long his penalty phase presentation would last
if the motion were denied, counsel responded that, based on his
discussions with defendant, “my time would probably be zero.”
At the next hearing, the court observed that defendant
had no constitutional right to self-representation midtrial and
asked him to explain the request. Defendant said he disagreed
with his attorney’s strategy for the penalty phase. Specifically,
counsel “would attempt . . . to show mitigating factors that I
don’t approve of.” Defendant said “the only thing” he wanted to
defend against was “the gang allegations.” Although he
recognized the jury had just found the gang allegations untrue,
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Opinion of the Court by Corrigan, J.
he believed his Aryan Brotherhood validation would be brought
up again. “Other than that,” he said, “I don’t plan on putting on
any mitigating evidence at all.” Defendant wanted to call
Richard Terflinger and Joseph Hayes on the “gang issues.” He
also thought they could testify as “character witnesses” for him.
Guilt phase evidence revealed that both were Aryan
Brotherhood members. Defense counsel disagreed with this
strategy. The prosecutor also objected to testimony from these
witnesses, whom he believed defendant wanted to bring to court
for “an inappropriate reason.”
The court observed that the Faretta request was untimely.
It advised defendant that, pursuant to People v. Bradford (1997)
15 Cal.4th 1229 and People v. Lang (1989) 49 Cal.3d 991 (Lang),
he could insist that no mitigating evidence be presented but
would then be estopped from claiming ineffective assistance of
counsel on appeal. The court also cited People v. Bloom (1989)
48 Cal.3d 1194 (Bloom), noting that defendant’s desire to
present no mitigating evidence had to be respected, despite
counsel’s opposition. Defendant affirmed for the record that he
would be instructing counsel to present no mitigating evidence
if the motion for self-representation was denied. After further
argument, the court denied the Faretta motion, citing the
lateness of the request and the quality of counsel’s
representation.
Defense counsel then informed the court that he would not
be calling Terflinger or Hayes. Instead, pursuant to defendant’s
instructions, he would present no mitigating evidence. The
court asked whether defendant was “asking the jury essentially
to put him to death.” Defendant answered, “No,” and counsel
said, “I don’t know whether he’s asking that or not, Your Honor,
but he just says he doesn’t want to put on any mitigating
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Opinion of the Court by Corrigan, J.
evidence.” The court stated that if defendant did not present
mitigating evidence or argument, he would be effectively asking
the jury to put him to death. Counsel responded, “I can’t get into
his mind, Your Honor. We have a good relationship . . . . But I
cannot get into his mind, because I have talked to him at length
about this very matter.” The court encouraged counsel to review
Bloom, Bradford, Lang, and several other cases, and set the
matter for further consideration in the afternoon, explaining, “I
need to know whether the defendant has made an intelligent
choice in deciding that he does not wish his lawyer to present
any evidence in mitigation. And so we may need to take a
waiver with respect to that.”
When they returned, defense counsel summarized cases
holding that the client may choose to forgo a mitigation defense
and counsel does not render ineffective assistance by complying
with that choice. (See, e.g., People v. Howard (1992) 1 Cal.4th
1132, 1185–1186.) He then stated, “Mr. Poore has made it clear
to me that he does not want me to present a . . . case in
mitigation . . . . And, of course, if he wants me not to do that, I
will not do that, and I will sit here and say no questions, no
objections[,] and no final argument, I suppose.” The court then
questioned defendant as follows:
“THE COURT: Mr. Poore, you’ve heard what your
attorney has just said; correct?
“THE DEFENDANT: Yes.
“THE COURT: Is that what you wish him to do?
“THE DEFENDANT: Yes.
“THE COURT: You understand that there may be some
evidence which is mitigating evidence?
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“THE DEFENDANT: Yes.
“THE COURT: And you understand that there may be
some argument that your attorney can make which may
convince the jurors that life without possibility of parole would
be the appropriate penalty rather than death?
“THE DEFENDANT: Yes.
“THE COURT: But you don’t wish him to make that
argument; is that correct?
“THE DEFENDANT: That’s correct.
“THE COURT: So it is your position that you are ordering
your attorney not to present any mitigating evidence; correct?
“THE DEFENDANT: Correct.
“THE COURT: And you are ordering your attorney not to
argue against the death penalty; correct?
“THE DEFENDANT: Correct.
“THE COURT: Knowing that the jury may order the
death penalty, you do not wish to resist that; is that correct?
“THE DEFENDANT: Correct.”
The penalty phase proceeded, with the defense asking no
questions on cross-examination. When the prosecution rested,
defense counsel announced that the defense waived its opening
statement, would call no witnesses, and rested its case. The
proceedings were adjourned. The next day, however, the court
informed the attorneys it wanted to revisit defendant’s decision
not to present mitigating evidence. The court explained it
wanted to question defendant further about his decision to
ensure it was knowing and voluntary. Further, “I also wish to
seek to persuade the defendant to change his mind, to encourage
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Opinion of the Court by Corrigan, J.
him to consult further with counsel before making a final
decision, and to advise him that his decision may, in fact, result
in a verdict of death, and will not be a basis for reversal on
appeal.”
The parties returned in the afternoon. Defense counsel
stated that he had spoken with defendant “once again about his
right to present mitigating evidence, about the witnesses that
we would call,” noting that they had spoken of these subjects
before. He reported that defendant still did not wish to present
a case in mitigation. The court then inquired:
“THE COURT: All right. Mr. Poore, you understand that
you have the right to present mitigating evidence in this case?
“THE DEFENDANT: Yes.
“THE COURT: You also understand that you have the
right not to present mitigating evidence if you choose not to do
so?
“THE DEFENDANT: Yes.
“THE COURT: What are your wishes in that respect?
“THE DEFENDANT: To not present any mitigating
evidence at all.
“THE COURT: Is there anything which the court can do
to convince you that you should present mitigating evidence in
this case?
“THE DEFENDANT: No.
“THE COURT: Is there anything which has improperly
influenced you not to present mitigating evidence?
“THE DEFENDANT: No.
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Opinion of the Court by Corrigan, J.
“THE COURT: Has anyone threatened you or coerced you
to not present mitigating evidence?
“THE DEFENDANT: No.
“THE COURT: Has anyone made you any promises to not
present mitigating evidence?
“THE DEFENDANT: No.
“THE COURT: Have you discussed with [defense counsel]
the existence of specific mitigating evidence?
“THE DEFENDANT: Yes. Thoroughly.
“THE COURT: Have you discussed their readiness to
present that mitigating evidence?
“THE DEFENDANT: Yes.
“THE COURT: Have you discussed with [defense counsel]
their recommendation that mitigating evidence be presented?
“THE DEFENDANT: Yes.
“THE COURT: I previously encouraged you to consult
further with counsel before making a final decision concerning
the presentation of mitigating evidence. [¶] Have you had an
opportunity to speak with counsel concerning that?
“THE DEFENDANT: Yes.
“THE COURT: On more than one occasion?
“THE DEFENDANT: Yes.
“THE COURT: Has there been any change in your stance
whatsoever with respect to the presentation of mitigating
evidence?
“THE DEFENDANT: None, Your Honor.
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Opinion of the Court by Corrigan, J.
“THE COURT: You understand that your decision may,
in fact, result in a verdict of death?
“THE DEFENDANT: Yes.
“THE COURT: You understand also that this decision to
not present mitigating evidence may not only result in a verdict
of death, but it will not be a basis for reversal on appeal?
“THE DEFENDANT: Yes.
“THE COURT: And knowing all of that, you still choose
not to present any mitigating evidence?
“THE DEFENDANT: Yes.”
The court then asked defense counsel whether it would
refrain from presenting mitigating evidence for any other reason
besides defendant’s choice. Counsel responded in the negative,
noting he had been prepared to call certain witnesses but
defendant did not want them to testify. Counsel stated, “The
only reason I’m not presenting mitigating evidence is because
he does not want mitigating evidence.” Counsel then explained
that he did not accede to defendant’s desire to call Terflinger and
Hayes because he “did not feel that those two gentlemen would
be witnesses that would help my case . . . if I were allowed to call
them.”13 Thereafter, counsel confirmed the defense would
present no closing argument.
13
In proceedings held outside the prosecution’s presence,
defendant said Terflinger and Hayes could have shed light “from
a different side” on his experiences in prison. Defense counsel
was of the firm view that the witnesses would harm the defense,
however, because they would be questioned about their gang
membership, their long prison terms, and “every bad thing that
they had ever done in . . . prison.” He believed the gang
allegations against defendant “would still be in the jury’s mind,”
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b. Analysis
Contrary to his position in the trial court, defendant now
argues a “capital defendant cannot unilaterally waive his
Eighth and Fourteenth Amendment right to have the jury
consider mitigating evidence.” He further contends the jury’s
inability to consider mitigating evidence rendered his sentence
unreliable. Settled case law, which defendant’s briefing largely
ignores, is to the contrary.
The failure to present mitigating evidence at the penalty
phase of a capital murder trial “does not, in and of itself, render
a judgment of death constitutionally unreliable.” (People v.
Snow (2003) 30 Cal.4th 43, 112; Lang, supra, 49 Cal.3d at
p. 1030; Bloom, supra, 48 Cal.3d at p. 1228.) “Rather, the
required reliability is attained when the prosecution has
discharged its burden of proof at the guilt and penalty phases
pursuant to the rules of evidence and within the guidelines of a
constitutional death penalty statute, the death verdict has been
returned under proper instructions and procedures, and the
trier of penalty has duly considered the relevant mitigating
evidence, if any, which the defendant has chosen to present. A
judgment of death entered in conformity with these rigorous
and testimony from Terflinger and Hayes would harm the jury’s
view of any other mitigation evidence he might present.
Defendant said he wanted to call Terflinger and Hayes because
“they’re not family members.” He did not “care about putting
them through the process of the penalty phase” because he
believed “that they could have offered evidence as far as . . .
knowing me in prison, what my experiences would have been,
and what might have led up to most of the circumstances that
the District Attorney has brought out in the penalty phase.”
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standards does not violate the Eighth Amendment reliability
requirements.” (Bloom, at p. 1228.)
Our cases have also held that a defendant is not deprived
of his Sixth Amendment right to counsel by “counsel’s
acquiescence in the defendant’s own decision that no defense
shall be presented on his behalf.” (People v. Amezcua and Flores
(2019) 6 Cal.5th 886, 925, italics added (Amezcua and Flores).)
“To require defense counsel to present mitigating evidence over
the defendant’s objection would be inconsistent with an
attorney’s paramount duty of loyalty to the client and would
undermine the trust, essential for effective representation,
existing between attorney and client.” (Lang, supra, 49 Cal.3d
at p. 1031.)14
As the record quoted above demonstrates, defendant was
thoroughly advised of his right to present mitigating evidence.
The court questioned defendant directly twice, using “the same
kind of care that is required when ensuring that the waiver of
any substantial right is personally and properly made.”
(Amezcua and Flores, supra, 6 Cal.5th at p. 926.) The court
explored whether defendant had discussed specific mitigating
evidence with counsel. It confirmed that defendant understood
he could be sentenced to death as a consequence of his refusal to
14
Because defendant does not contend the absence of a
penalty phase defense deprived him of the effective assistance
of counsel, we need not decide whether such decisions about
penalty phase evidence are among the “objective[s] of the
defense” over which a represented defendant retains control, for
purposes of the Sixth Amendment. (McCoy v. Louisiana (2018)
584 U.S. ___ [138 S.Ct. 1500, 1508] (McCoy).)
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present mitigating evidence. The court even asked whether
there was anything it could do to change defendant’s mind.15
In his reply brief, defendant attempts to argue that he did
want to present mitigating evidence, but his lawyer
unreasonably refused to call the two witnesses he wanted to
testify.16 Defendant does not attempt to describe with any
particularity what mitigating evidence Terflinger and Hayes
would have presented. He initially told the court their
testimony would respond to a suggestion that his gang
affiliation indicated future dangerousness, but because the
prosecutor did not present such evidence the need for this
anticipated rebuttal did not arise. Although defendant later
suggested the witnesses could have presented “a different side”
of his prison experiences, his attorney strongly believed that
their testimony would be harmful to the defense.
Defendant had no right to control how his lawyer would
present a defense if he chose one because “[t]rial management is
the lawyer’s province.” (McCoy, supra, 584 U.S. at p. __ [138
15
Defendant suggests we should ignore the second colloquy
because it came after the parties had rested. In raising the
matter again at this stage, it is clear the court wanted to ensure
an adequate record and confirm that defendant was fully
advised of his right to present mitigating evidence. The jury had
not yet received its penalty phase instructions, and from the
court’s remarks it is apparent the court would have reopened
the case if defendant changed his mind.
16
Despite defendant’s present assertion that he had a “clear
conflict” with his attorney, we note that he did not pursue a
motion under People v. Marsden (1970) 2 Cal.3d 118. He did not
object when counsel informed the court that “we have a good
relationship,” nor does he claim the denial of his Faretta motion
was error.
53
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
S.Ct. at p. 1508].) Counsel properly has the prerogative to
control “choices affecting conduct of the trial, including the
objections to make, the witnesses to call, and the arguments to
advance.” (Gonzalez v. United States (2008) 553 U.S. 242, 249,
italics added; see McCoy, at p. __ [138 S.Ct at p. 1508].) “When
a defendant chooses to be represented by professional counsel,
that counsel is ‘captain of the ship’ and can make all but a few
fundamental decisions for the defendant.” (People v. Carpenter
(1997) 15 Cal.4th 312, 376; see In re Barnett (2003) 31 Cal.4th
466, 472.)
Defendant’s attorney was not required to present
testimony from gang members Terflinger and Hayes simply
because defendant wanted these witnesses to appear. Counsel
reasonably believed the witnesses would not help the defense.
Guilt phase evidence was offered on defendant’s purported
association with the Aryan Brotherhood and the role it may
have played in his offenses. However, having heard that
evidence, the jury rejected all gang enhancement allegations. If
defendant had called two known gang members to testify on his
behalf, the jury might well have second guessed its decision,
undermining the credibility of the defense. Moreover, the jury
received evidence in the guilt phase of a letter in which
defendant said he was trying to bring these same two men to
court. Witnesses familiar with the Aryan Brotherhood testified
that individuals associated with the gang frequently sought to
call other gang members as witnesses because trips away from
prison gave members an opportunity to conduct illicit gang
business. Indeed, the prosecution presented evidence indicating
that Terflinger, in particular, had been trying to arrange a trip
to court that fall. Defense counsel’s refusal to call them did not
render the death verdict unreliable.
54
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
2. Delay in Providing Habeas Counsel
In People v. Williams (2013) 56 Cal.4th 165, 202, we
rejected as speculative a capital defendant’s claim that the state
would “likely” fail to provide him with habeas corpus counsel in
a timely manner, in violation of numerous constitutional
provisions. Defendant makes a similar claim here, arguing he
has been on death row for nearly 20 years yet is still awaiting
habeas counsel. He contends California’s delay in this regard
violates his rights to counsel, reliable proceedings, and other
elements of due process. Although more definite in its
articulation, defendant’s challenge is no more meritorious than
the one we rejected in Williams. Defendant filed a habeas
corpus petition in propria persona but withdrew it a week after
his appellate counsel filed the opening brief in this appeal. He
has presented us with no reason to doubt that counsel will
ultimately be appointed to represent his interests in collateral
proceedings. Accordingly, his arguments here are speculative.
Moreover, defendant’s claim is not the sort we have
considered cognizable on direct appeal because it “ ‘does not
affect the validity of the judgment and is not a basis for reversal
of the judgment on appeal.’ ” (People v. Cornwell (2005) 37
Cal.4th 50, 106.) “On direct appeal, defendant is restricted to
claims ‘bear[ing] on the validity of the death sentence itself.’ ”
(Ibid.; see People v. Charles (2015) 61 Cal.4th 308, 336
[challenge to state’s execution method not cognizable on appeal];
People v. Hinton (2006) 37 Cal.4th 839, 919 [claim of error
relating to sealing of attorney’s billing records not cognizable on
appeal].) Defendant’s claim is premature and provides no basis
for disturbing the judgment.
55
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
3. Delay in Death Penalty Review
Defendant argues the delay in California’s administration
of the death penalty constitutes cruel and unusual punishment
under the Eighth Amendment. We have consistently rejected
this claim, explaining that “the automatic appeal process
following judgments of death is a constitutional safeguard, not
a constitutional defect [citations], because it assures careful
review of the defendant’s conviction and sentence [citation].”
(Anderson, supra, 25 Cal.4th at p. 606.)
We also recently considered the related claim under Jones
v. Chappell (C.D.Cal. 2014) 31 F.Supp.3d 1050, reversed by
Jones v. Davis (9th Cir. 2015) 806 F.3d 538, that systematic
delays render California’s capital punishment scheme arbitrary
and capricious in violation of the Eighth Amendment. (People
v. Seumanu (2015) 61 Cal.4th 1293, 1368–1375.) We found no
support for the claim. Differences relating to when defendants
complete the judicial review process “are not necessarily
attributable to arbitrariness . . . , but may instead represent the
legitimate variances present in each individual case,” including
the nature of the facts, length of the record, complexity and
number of issues raised, quality of the briefing, and other
matters. (Id. at p. 1374.) Moreover, we observed, there is no
“randomness or a lack of rationality” in a system of judicial
review that affords each case the amount of time needed for this
court’s careful examination of each claim based on its specific
factual context. (Id. at p. 1375.)
Defendant’s briefing offers no basis to reexamine these
conclusions. (See People v. Rhoades (2019) 8 Cal.5th 393, 453–
454 (Rhoades); Winbush, supra, 2 Cal.5th at p. 488; People v.
Clark (2016) 63 Cal.4th 522, 645.)
56
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
4. Challenges to Death Penalty Statute
Defendant raises a number of challenges to the
constitutionality of California’s death penalty statute. He
acknowledges that we have previously rejected all of these
claims but presents them again to urge reconsideration and
preserve the issues for federal review. (See People v. Schmeck
(2005) 37 Cal.4th 240, 303–304.) We adhere to our settled
precedents, which hold:
The class of offenders eligible for the death penalty under
section 190.2 is not impermissibly broad. (People v. Potts (2019)
6 Cal.5th 1012, 1060 (Potts); People v. Reed (2018) 4 Cal.5th 989,
1018.) The special circumstances are not so numerous or
expansive as to defeat their constitutionally required narrowing
function. (Winbush, supra, 2 Cal.5th at p. 488.)
Section 190.3, factor (a), which permits aggravation based
on the circumstances of the crime, does not result in arbitrary
and capricious imposition of the death penalty. (Rhoades,
supra, 8 Cal.5th at p. 455; People v. Capers (2019) 7 Cal.5th 989,
1013 (Capers).)
The jury’s use of unadjudicated criminal conduct in
aggravation under section 190.3, factor (b) does not violate due
process or result in cruel and unusual punishment. (People v.
Hoyt (2020) 8 Cal.5th 892, 954 (Hoyt); Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 469.)
As we have often explained, the jury’s penalty choice is a
normative decision, not a factual one. (Beck and Cruz, supra, 8
Cal.5th at p. 670.) For this reason, California’s death penalty
scheme does not violate the federal Constitution for failing to
require written findings (People v. Molano (2019) 7 Cal.5th 620,
678 (Molano)); unanimous findings as to the existence of
57
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
aggravating factors or unadjudicated criminal activity (Capers,
supra, 7 Cal.5th at p. 1013); or findings beyond a reasonable
doubt as to the existence of aggravating factors (other than
section 190.3, factor (b) or (c) evidence), that aggravating factors
outweigh mitigating factors, or that death is the appropriate
penalty (People v. Fayed (2020) 9 Cal.5th 147, 213 (Fayed);
People v. Krebs (2019) 8 Cal.5th 265, 350 (Krebs)). The high
court’s decisions in Apprendi, supra, 530 U.S. 466, Ring v.
Arizona (2002) 536 U.S. 584, and Hurst v. Florida (2016) 577
U.S. 92 do not alter these conclusions. (Rhoades, supra, 8
Cal.5th at p. 455; Capers, at pp. 1013–1014.)
Defendant challenges two aspects of the jury instructions
concerning mitigating evidence. The predicate for these claims
fails because defendant instructed his counsel to present no
mitigating evidence in the penalty phase. In any event, we have
held the words “extreme” and “substantial” in CALJIC No. 8.85
do not unduly constrain the jury’s consideration of mitigating
circumstances. (Molano, supra, 7 Cal.5th at p. 678; People v.
Rices (2017) 4 Cal.5th 49, 94.) The court was not
constitutionally required to instruct that certain factors were
relevant only for mitigation. (Krebs, supra, 8 Cal.5th at p. 351;
Potts, supra, 6 Cal.5th at p. 1061.)
The federal Constitution does not require intercase
proportionality review. (Hoyt, supra, 8 Cal.5th at p. 955;
Rhoades, supra, 8 Cal.5th at pp. 455–456.) Nor does the death
penalty law violate equal protection because it provides
different procedures for capital and noncapital defendants.
(Fayed, supra, 9 Cal.5th at p. 214; Rhoades, at p. 456.)
California’s capital sentencing scheme does not violate
international norms or the Eighth Amendment. (Beck and Cruz,
supra, 8 Cal.5th at p. 671; Molano, supra, 7 Cal.5th at p. 679.)
58
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
Finally, “considering the arguments in combination, and
viewing the death penalty law as a whole, it is not
constitutionally defective. Defendant’s challenges to
California’s death penalty scheme ‘are no more persuasive when
considered together,’ than when considered separately.
[Citation.] ‘California’s capital sentencing scheme as a whole
provides adequate safeguards against the imposition of
arbitrary or unreliable death judgments.’ ” (People v. Anderson
(2018) 5 Cal.5th 372, 426.)
C. Cumulative Error
Defendant asserts that cumulative prejudice resulting
from errors in the guilt and penalty phases requires reversal of
the judgment. Although the court committed statutory error by
allowing defendant to be absent from trial without a written
waiver (see § 977, subd. (b)(1); Wall, supra, 3 Cal.5th at p. 1060),
we have identified no additional errors, nor any ruling that
caused defendant undue prejudice. Accordingly, the claim fails.
(See People v. Gonzalez (2021) 12 Cal.5th 367, 417.)
59
PEOPLE v. POORE
Opinion of the Court by Corrigan, J.
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
60
PEOPLE v. POORE
S104665
Concurring Opinion by Justice Liu
In a line of cases tracing back to People v. Lang (1989)
49 Cal.3d 991, this court has held that counsel to a capital
defendant does not provide constitutionally ineffective
assistance under the Sixth Amendment to the United States
Constitution by acquiescing to the defendant’s desire not to
present evidence in mitigation at the penalty phase. (Lang, at
p. 1031.) We have said that a defendant may “request not to
present certain evidence for nontactical reasons,” and counsel’s
agreement to that request is not deficient performance. (Ibid.;
see, e.g., People v. Brown (2014) 59 Cal.4th 86, 112 [“[I]f a
competent defendant decides for nontactical reasons to present
no mitigating evidence, he cannot later label counsel ineffective
for honoring the defendant’s own wishes.”].)
This rule appears in some tension with the high court’s
recent decision in McCoy v. Louisiana (2018) 584 U.S. __
[138 S.Ct. 1500] (McCoy). McCoy held that a defendant’s Sixth
Amendment right to the assistance of counsel is violated when
defense counsel concedes guilt over the client’s objection.
(McCoy, at p. __ [138 S.Ct. at p. 1509].) The high court
explained that decisions about the objectives of a criminal
defense are “reserved for the client.” (Id. at p. __ [138 S.Ct. at
p. 1508].) This includes the decision “that the objective of the
defense is to assert innocence.” (Ibid.) In McCoy’s framing, “the
objective of the defense” appears to mean the verdict the
defendant seeks to obtain — guilt of the charged offense, guilt of
1
PEOPLE v. POORE
Liu, J., concurring
a lesser offense, or innocence. By contrast, “[t]rial management
is the lawyer’s province: Counsel provides his or her assistance
by making decisions such as ‘what arguments to pursue, what
evidentiary objections to raise, and what agreements to conclude
regarding the admission of evidence.’ ” (Ibid.)
It is not obvious that decisions about the particular
evidence to present at the penalty phase — or whether to
present mitigation evidence at all — should be considered part
of “the objective of the defense” that remains within a
represented defendant’s control under the division of roles
articulated in McCoy. (McCoy, supra, 584 U.S. at p. __ [138
S.Ct. at p. 1508].) Rather, those decisions would seem to be
aspects of “[t]rial management” reserved to counsel: They are
“strategic choices about how best to achieve a client’s objectives”
as opposed to “choices about what the client’s objectives in fact
are.” (Ibid.) Following McCoy, when a capital defendant at the
penalty phase has decided to seek a verdict of life without the
possibility of parole rather than death, counsel may be
empowered to decide what evidence to bring forward to advance
that objective, and ceding that authority to the defendant may
constitute ineffective assistance.
In this case, defendant Christopher Eric Poore has argued
that his counsel’s acquiescence in his desire not to present
certain mitigating evidence rendered his death verdict
unreliable for purposes of the Eighth Amendment, but he has
not argued that it was ineffective assistance of counsel under
the Sixth Amendment. The court’s opinion therefore does not
reach that Sixth Amendment question. (Maj. opn., ante, at
p. 52, fn. 14.) Whether McCoy affects our precedent on the right
of a capital defendant to control counsel’s presentation of
mitigating evidence awaits assessment by our court in a case in
2
PEOPLE v. POORE
Liu, J., concurring
which the issue is presented. With that understanding, I join
the court’s opinion.
LIU, J.
3
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Poore
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S104665
Date Filed: June 27, 2022
__________________________________________________________
Court: Superior
County: Riverside
Judge: Randall D. White
__________________________________________________________
Counsel:
R. Clayton Seaman, Jr., and Patricia A. Scott, under appointments by
the Supreme Court, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler,
Chief Assistant Attorney General, Ronald S. Matthias, Assistant
Attorney General, Theodore M. Cropley, Anthony Da Silva and
Michael T. Murphy, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Patricia A. Scott
Attorney At Law
P.O. Box 11056
Prescott, AZ 86304
(928) 233-5415
Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9211