Supreme Court of California Justia
Docket No. S102166

People v. Simon

Filed 7/18/16



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S102166

v.

RICHARD NATHAN SIMON,

Riverside County

Defendant and Appellant.

Super. Ct. No. CR-68928



In November 1999, a Riverside County jury found defendant Richard

Nathan Simon guilty of the first degree murders of Vincent Anes and Sherry

Magpali (Pen. Code,1 § 187, subd. (a)), the second degree murder of Michael

Sterling with the personal use of a firearm (ibid.), the rape of Magpali (§ 261,

subd. (a)(2)), and the kidnapping of Magpali (§ 207, subd. (a)). The jury further

found true the special circumstance allegations of multiple murder (§ 190.2, subd.

(a)(3)), that Simon committed Anes‘s murder while engaged in the commission of

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

that Simon committed Magpali‘s murder while engaged in the commission of a

robbery, kidnapping, and rape (id., subd. (a)(17)(i)-(iii), now subd. (a)(17)(A)-

(C)).


1

Unless otherwise noted, all subsequent statutory references are to the Penal

Code.

1


The jury was unable to reach a decision at the first penalty trial, so the court

declared a mistrial. The court then empaneled a new jury, which fixed the penalty

as death after a second penalty trial.2 The trial court automatically reviewed the

verdict (§ 190.4, subd. (e)), declined to modify it, and sentenced Simon to death.

This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow,

we affirm the judgment in its entirety.

I. BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

a. The Killings of Vincent Anes and Sherry Magpali

On the evening of December 2, 1995, Vincent Anes drove his girlfriend

Sherry Magpali and their friends Jose and Eugene Menor to a party in Moreno

Valley. About two hours later, the four left the party, went bowling, and visited

nearby Taco Bell and Claim Jumper restaurants. Not long after midnight, Anes

dropped Magpali off near her house and drove the Menor brothers home. Jose

then observed Anes make a U-turn and travel back toward Magpali‘s residence.

Around 1:00 a.m., Kenneth Riomales, Jason and John Marianas, and Noah

Maling drove by Pedrorena Park and saw Anes‘s car in the parking lot. Assuming

Anes was with Magpali, they did not stop. No more than half an hour later, the

group returned, checked on the car, and saw a bullet-ridden naked body in the rear

seat. Although the body‘s face was covered, they suspected it was Anes. Without

immediately calling 911, the group drove to Anes‘s nearby house and asked

Anes‘s mother if her son was home. When Anes‘s mother confirmed that he was


2

Unless otherwise noted, the ―penalty phase‖ refers to this second penalty

trial.

2

not, Riomales called 911 and the group returned to Pedrorena Park with Anes‘s

mother, brother, and grandfather. Officers met the group within minutes and

confirmed that Anes was deceased.

The investigating officers observed that Anes‘s body was missing a ring

and necklace that he had been wearing earlier that evening. Also missing was a

large speaker from the car‘s trunk. From the vehicle, investigators collected eight

9-millimeter shell casings and three 9-millimeter projectiles. They also found a

jacket holding some of Magpali‘s possessions, including a camera with

photographs of the couple from that evening‘s party.

Nearby, officers found Anes‘s underwear and T-shirt on a basketball court.

The underwear had been cut along the edges of the waist and legs, and the crotch

had been cut or ripped out. Officers also found torn pieces of Magpali‘s

undergarments as well as Anes‘s pants, belt, and sock on the roof of a restroom.

Magpali‘s bra was on the ground near that restroom. Officers recovered 29 latent

fingerprints from the vehicle and six from the restroom door, but none matched

any prints within the automated statewide fingerprint identification system.

Later that morning, officers found Magpali‘s body several miles away on

the side of Interstate 215 in Sun City, clothed only in jeans and a blouse. Rings

and a necklace she had been wearing that night were missing. Investigators noted

blood under her head, and bloodstains on her right hand and jeans. They

recovered two 9-millimeter shell casings near Magpali‘s body and two 9-

millimeter projectiles in the dirt beneath her head. Investigators also applied ―tape

lifts‖ to collect trace evidence that may have adhered to Magpali‘s body and

clothing.

Evidence from the victims‘ bodies was later collected at the coroner‘s

office. Plant material was collected from Anes‘s penis and thigh, but there was no

indication of sexual assault. Anes‘s autopsy revealed eight gunshot wounds, all

3

received within a span of seconds to a minute or two, and from a gun fired

between three and 18 inches away. In total, five 9-millimeter projectiles were

removed from Anes‘s body. The other three had been found in the vehicle.

Magpali‘s autopsy revealed two gunshot wounds to the head, with holes consistent

with a medium caliber weapon fired from at least 18 to 24 inches away.

Inconclusive evidence indicated that a third projectile may have grazed Magpali‘s

face. Toxicology screenings of Anes and Magpali came back negative for alcohol

and drugs.

Trace evidence collected from Magpali‘s body included fibers, fingernail

clippings, swabs from her hands and vagina, and brushings from the hair on her

head and pubic region. Brushings from her pubic hair, as well as the vaginal

swab, revealed the presence of sperm. Her jeans and shirt showed possible semen

stains, in addition to plant material and bloodstains. And although no signs of

vaginal trauma were detected, Magpali‘s legs had fingertip bruising and scratches

consistent with being held forcefully. When police later obtained a DNA profile

from Simon‘s blood sample, it matched the DNA profile exhibited in the sperm

fraction present on the vaginal swab taken from Magpali‘s body and in the stains

from the crotch area of her jeans. Simon was the only possible source of the DNA

samples obtained from those sperm fractions.

Other trace evidence on Magpali‘s body included red fibers on her jeans

and on the back of her right leg. These fibers were later determined to be

consistent with carpet fibers from a 1981 Dodge Colt, which was owned at the

time by Curtis Williams,3 an associate of Simon‘s. Upon further inspection, this


3

Williams was arrested in connection with the murders of Anes and Magpali

on October 6, 1999. He was tried and convicted in separate proceedings and is not
involved in this appeal.

4

vehicle contained two bullet-sized holes, one at the front edge of the glove box

and one behind it, which tested ―weakly positive‖ for lead. While possible that

one bullet created both holes, no projectile was found in Williams‘s car.

Preliminary examination of the recovered projectiles and shell casings from

both crime scenes showed that all projectiles were probably fired from the same

gun. The cartridge casings, in particular, exhibited a distinctive impression left by

the gun‘s firing pin, which was entered into the Federal Bureau of Investigation‘s

Drugfire system.

On January 18, 1996 — less than seven weeks after the bodies of Anes and

Magpali had been discovered — Simon was pulled over for a traffic stop with two

passengers in the car. All occupants were arrested, the car was impounded, and an

inventory search revealed a nine-millimeter handgun containing 17 rounds under

the front passenger‘s seat. Mamie Meeks — Simon‘s front seat passenger —

testified that earlier that day Simon had driven to a nearby home to pick up a gun

he had said he needed for protection from ―some of the gang bangers or something

in San Bernardino he didn‘t get along with.‖ Meeks explained that upon being

pulled over, Simon gave the gun to Meeks and told her to put it under the seat.

Simon called Meeks from jail the next day, asking her to claim ownership of the

weapon. When she refused, Simon became angry and told Meeks that he was

going to ―fuck her up.‖ This threat prompted Meeks‘s relocation to Nevada for

several months. Simon was eventually released from custody.

On May 7, 1996, cartridge casings from the gun found in Simon‘s

possession were test fired. They matched the impression previously entered into

the Drugfire system. Further examination revealed that all 10 cartridge casings

recovered from the Anes and Magpali crime scenes had been fired from that gun.

5

b. The Killing of Michael Sterling

The night of May 25, 1996, officers responding to a call arrived at an

apartment complex in Moreno Valley. The officers found Vernice Haynes in a

field across from the complex‘s parking lot, kneeling next to Michael Sterling,

who had been shot. Sterling was conscious at the time, but he died of a single

gunshot wound to the chest shortly after paramedics transported him to Riverside

Hospital.

Haynes — Sterling‘s then-fiancée — testified that on the night of the

incident, she and Sterling had been visiting an apartment where Davinna Gentry,

Sterling‘s cousin, lived with Williams, Gentry‘s boyfriend. Around 8:00 p.m.,

Simon, joined by Jamal and Raheen Brown, knocked on the door. When Gentry

opened it, Simon asked if ―Droopy‖ (i.e., Williams) was home. Gentry turned to

look at Williams, stepping away from the door, at which point Simon entered and

shook Williams‘s hand.

Williams introduced Simon to Sterling, the two shook hands, and Simon

asked Sterling where he was from. After Sterling identified himself as a member

of the Inland Empire (IE) gang, Simon — who claimed membership in a rival

gang — became angry, cursing at Sterling. Sterling stood up and lifted his shirt,

showing that he was unarmed, and told Simon that he had just been released from

prison and was ―trying to be cool.‖ According to both Gentry and Haynes, Simon

then told Jamal and Raheen to go get his gun, but they refused. At trial, Jamal

denied that Simon had made this request.

Williams attempted to usher Simon outside to talk. Simon responded by

swinging his fist at Williams and asking why he was hanging out with ―IE.‖

Gentry asked Simon to leave, as she did not want fighting in her home. Around

this time, Simon asked Williams if he could use the bathroom, and during his

absence Gentry told Williams to get Simon out of the house.

6

Testimony conflicted on the events that followed. Gentry testified that after

Simon used the bathroom, he appeared to have calmed down, apologized to

Sterling and Williams, shook Sterling‘s hand, hugged Sterling, and left the

apartment with Williams in tow. According to Haynes, Simon cooled down,

apologized, and hugged Sterling before going to the bathroom. Haynes testified

further that during Simon‘s absence, she told Sterling that she wanted to leave

because she was afraid Simon was going to shoot them. But Sterling, worried

what might happen to Williams, preferred to stay. Haynes also said that when

Simon exited the bathroom, he apologized again to Sterling, but struck Williams in

the face with his elbow and yelled at Williams for having Sterling in the house. At

some point, though, Simon exited the house, and Williams followed.

Testimony again conflicted on the events that transpired after Simon and

Williams went outside. According to Haynes, she and Gentry urged Sterling to

stay inside, but he insisted on leaving to check on Williams. Haynes testified that

she asked Gentry if there was a back door so that she could go get Sterling‘s

brothers, but Gentry told her not to leave the house. And as she and Gentry were

arguing, Haynes said she heard three shots.4 Haynes then testified that Williams

returned within moments; he appeared to have been in a fight. She ran outside,

observed Simon and one of his friends running toward Simon‘s car, saw Sterling

staggering in the field across the street, and ran toward Sterling. Sterling fell to

the ground and told Haynes that he would be going back to jail.

When interviewed by police, Gentry‘s version of the events was consistent

with Haynes‘s testimony in that Gentry said she was inside the apartment when

she heard gunfire. At trial, however, Gentry claimed that the transcript of her


4

After the incident, Haynes told officers she had heard four shots.

7

taped interview with police was incorrect. Gentry testified instead that after

Sterling exited the house, Haynes became upset and ran into the bathroom. Gentry

claimed she then ran out the back door and looked over the gate to see what was

happening. Gentry said that she could only see shadows, but could tell that

Sterling was leaning on Simon‘s car, and heard Simon tell Sterling to get off the

vehicle. When Sterling stood up, she heard two shots together, and a third three to

four minutes later.

Jamal Brown also testified at trial, acknowledging that he and his brother

Raheen accompanied Simon to Gentry‘s apartment that evening. Jamal recalled

arguments both inside and outside of the apartment, but he testified that Simon

never told him to go get a gun. Jamal testified further that he did not remember

how many shots were fired and was not paying attention to what was going on

immediately before the shooting. When an officer interviewed Jamal on May 31,

1996, however, Jamal said he had heard two shots. During that interview, Jamal

also said that Simon had shown him a gun the day of the incident. And although

Jamal claimed not to have witnessed the events immediately preceding the

shooting, he told the officer that Simon ―totally shot [Sterling] cold blooded.‖

When they arrived at the scene, officers found a spent shell casing under a

stairway across from where Sterling fell. Sterling‘s autopsy showed that he was

killed by a single gunshot wound to the torso from a .22-caliber bullet traveling

slightly downward, slightly forward, and from about two feet away. Sterling‘s

toxicology screening was positive for marijuana and showed a blood-alcohol

content of 0.10 percent at the time of death.

On May 26, 1996, officers arrested Simon and searched his home. The

search was conducted in accordance with a condition of Simon‘s probation for a

1993 attempted robbery conviction. The condition required that Simon ―[s]ubmit

[his] person and property under [his] control to search or seizure at any time of the

8

day or night . . . with or without a warrant, or probable cause.‖ During the search,

officers found a .22-caliber handgun under Simon‘s mattress, a box of CCI brand

ammunition, and a clip loaded with several brands of bullets. Investigators later

determined that the shell casing recovered from the Sterling crime scene was fired

by this gun, and the projectile from Sterling‘s body could have been fired by this

gun.

2. Defense Evidence

The defense theory of the Anes/Magpali murders was that Williams alone

was responsible for killing the two teens. In support of this theory, the defense

presented evidence that Williams would have had access to the murder weapon

during the relevant time period. Defense witnesses testified that on January 18,

1996, when Simon was stopped for the traffic violation, he had gone with Meeks

to a residence on Fay Avenue to pick up the gun. Witnesses testified further that

Williams regularly visited a friend at that house.

As to the Sterling homicide, the defense argued that the offense amounted

to less than first degree murder based in part on character evidence suggesting

Sterling had a propensity for violence. Haynes, Sterling‘s fiancée at the time,

testified that Sterling had been in prison for assaulting another man, and that he

had been in jail on other occasions.

B. Penalty Phase

At the penalty phase, the prosecution relied on the circumstances of the

crimes and Simon‘s previous misconduct as evidence in aggravation supporting

imposition of the death penalty. The prosecution presented testimony relating to

the circumstances of the convicted offenses, as well as victim impact evidence on

behalf of Magpali, Anes, and Sterling. As to previous misconduct, the prosecution

introduced evidence that jail personnel had found shanks in Simon‘s cell on two

9

occasions. The prosecution also introduced evidence of a letter, purportedly

written by Simon while in jail, to his cousin Terri Richardson. The letter, which

referenced committing possible acts of violence against other inmates, was

admitted to show Simon‘s motive or intent for possessing a shank on the first

occasion. The letter stated, for example, ―I‘ll hurt one of these fools . . . . I‘m

tired of these punk ass fools in here . . . .‖ It continued, ―I‘m not going to take this

shit too much longer. . . . I‘m going to lay one of they ass out. I‘ll beat the shit

out of one of these fools.‖ The letter was signed, ―Still you cuz, Nate.‖

The defense presented evidence in mitigation. In making the case for

mitigation, the defense focused on Simon‘s psychological background, including

testimony from relatives about Simon‘s childhood and expert testimony discussing

organic brain damage. Simon‘s mother, who eventually became a police officer,

testified that she had been in several abusive relationships during Simon‘s

formative years. One of those relationships was with her patrol sergeant, who

became physically abusive toward both her and Simon. On one occasion, this man

punched Simon for teasing the man‘s youngest son. On another, the man tied

Simon‘s hand to a door with a belt and beat him severely. When Simon was in his

late teens, he was knocked unconscious during a fight at a park in Compton.

About a year later, Simon moved from California to Michigan to live with

relatives. While there, he suffered a gunshot wound to the head, causing him to

lose sight in his left eye. After being hospitalized for his injuries, Simon returned

to California. His cousin Richardson testified that Simon seemed different when

he came back from Michigan. But Simon was supportive of Richardson during

her pregnancy. Another of Simon‘s female relatives, his half sister, testified that

she considered Simon a positive role model who had discouraged her from

engaging in criminal behavior.

10

The defense also offered testimony from two medical experts. The first,

Dr. David Fukuda, treated Simon during the time he was incarcerated pending

trial. Dr. Fukuda prescribed medication to control Simon‘s seizures and ordered

skull X-rays and a computerized axial tomography (CAT) scan, which revealed

bullet fragments lodged in Simon‘s right nasal bone and left eye socket. The CAT

scan also revealed encephalomalacia of the right frontal lobe with deformity of the

overlying cranium consistent with Simon‘s previous surgery to treat the gunshot

wound he sustained in this area. The second expert, neurologist Dr. Kenneth

Nudleman, examined Simon prior to trial. Dr. Nudleman reviewed Simon‘s

medical records and ordered additional neurological testing. From these sources,

Dr. Nudleman concluded that Simon suffered from significant organic brain

damage primarily to the right frontal lobe and, to a lesser extent, the left frontal

lobe. He found roughly 20-25 percent of Simon‘s right frontal lobe was missing.

This part of the brain, Dr. Nudleman explained, is involved with impulse function

and anger control.

During rebuttal, the prosecution introduced an undated and unaddressed

letter that had been enclosed in the Richardson letter and was purportedly directed

toward Simon‘s wife, Keisia. The letter, introduced to rebut evidence of Simon‘s

good character, contained threatening and explicit language. It read, for instance:

―If I can‘t get you, I‘m getting the closest thing to you, bitch. . . . [¶] I‘m going to

get you, bitch. . . . I‘m the one to be scared of. . . . [¶] I‘m already a dead man

walking, . . . so can‘t shit you say or do hurt me. But I can do a whole lot to hurt

you. . . . [¶] You are now considered road kill, bitch, and if you run from it, your

best friend takes your place.‖ The letter was signed, ―Until doomsday, yours that

is; [¶] Nate, (rides again).‖

11

II. DISCUSSION

A. Issue Affecting Both Phases

1. Stun Belt

Simon claims the trial court erred by requiring him to wear a remote-

controlled stun belt as a security measure during the guilt and penalty phases.5

We disagree.

a. Background

On September 13, 1999, the first day of jury selection, defense counsel

requested that ―no chains, shackles, cuffs [or] anything of that sort be worn by the

defendant during the course of the trial.‖ Defense counsel stated that he had been

told Simon was wearing a Remote Electronically Activated Control Technology

(REACT) stun belt that day, an arrangement defense counsel opposed unless the

court could provide adequate justification. Defense counsel also complained that

the belt was placed in such a manner — near Simon‘s left hip — that some jurors

might be able to notice it.

The trial court granted the motion that Simon be unshackled. But the court,

relying on a series of incidents described by the bailiff, denied Simon‘s request to

have the stun belt removed. At the court‘s behest, the bailiff detailed the

following incidents on the record: in June 1996, Simon had a fight with another

inmate; less than a year later, in April 1997, jail personnel found a shank in

Simon‘s cell; in July 1998, Simon refused to obey a deputy‘s order, and jail

personnel found excess food in his cell; in September 1998, Simon refused to

return to his cell during a lockdown, and jail personnel found two plastic shanks in


5

A stun belt is a device worn around the waist that delivers an incapacitating

electric shock when activated by a court security officer. (See People v. Mar
(2002) 28 Cal.4th 1201, 1204 (Mar).)

12

Simon‘s cell; in August 1999, jail personnel found feces stored in a container in

Simon‘s cell, along with cleaning products; and that same month, Simon

threatened a new deputy.

In denying Simon‘s motion, the trial court expressed particular concern

about the shanks and incidents of fighting. The court also noted that it had

inquired into why the feces and cleaning supplies were significant and learned

from the bailiff, as well as from another deputy who was present during their

discussion, that these items are commonly used in making explosives.

Defense counsel next indicated that Simon was uncomfortable because the

position of the stun belt prevented him from leaning back in his chair. Defense

counsel also requested that the belt be placed on Simon‘s right side to make it

more difficult for the jury to notice its presence. The trial court asked whether the

belt could be worn on either side, to which the bailiff responded that the belt could

only be placed on the left side. The court then asked if the inability to lean back is

a typical problem with the belt, and the bailiff explained that an extra cushion

positioned on the right side usually solved this problem.

Defense counsel interjected to raise another concern: Simon had a prior

injury to his left hip area that was causing him discomfort. The cushion, defense

counsel explained, did not improve Simon‘s ability to lean back, and he was

worried Simon would appear uncomfortable in front of the jury. Defense counsel

also argued that Simon should not have to wear the stun belt at all because there

had been no indication that Simon was a flight risk, and because searching him

prior to his entering the courtroom would alleviate any concerns about his bringing

in weapons.

The trial court declined to change its positon. The court explained that its

primary concern was not necessarily that Simon would bring a shank into the

courtroom or attempt to escape. Rather, the concern was that the shanks, fights,

13

and bomb-making materials indicated to the court that Simon was a danger to

others. The court noted further: ―When we bring 75 good citizens into the

courtroom, I think we need to do everything we can to make sure that they are

protected, as well as our own staff and counsel. And I think that . . . some kind of

restraint is appropriate.‖ The court also prepared a minute order, dated September

13, 1999, which read: ―Oral Motion By DEFENSE regarding NO RESTRAINTS

ON DEFT DURING TRIAL is called for hearing. [¶] Motion Granted. [¶]

Defendant to remain unshackled during trial. [¶] Motion denied as to React Belt.

Defendant to wear React Belt during trial.‖

Simon renewed his objection to wearing the stun belt on July 16, 2001, at

the start of the penalty phase. Defense counsel noted the absence of any incidents

during the three and a half month trial of the guilt phase, and during the year and a

half since a mistrial had been declared at the first penalty trial. Defense counsel

acknowledged that the stun belt was ―less obtrusive and noticeable than shackles

or something of that sort,‖ but he added that the stun belt was still a ―fairly

obtrusive item‖ and could be seen if Simon were not wearing a jacket.

The trial court solicited information from a sheriff‘s deputy, who reminded

the court of incidents with the shanks and the fight involving another inmate. The

deputy also mentioned that Simon had claimed to be a member of the Crips gang

and had been verbally aggressive toward deputies on several occasions since 1998

and as late as 2001. The deputy noted further that Simon had written a letter in

1997 containing racial slurs and mentioning a possible attempt to assault a

Hispanic inmate. Finally, the deputy opined that because Simon had already been

convicted, he had nothing to lose. Simon was therefore considered ―a very high

security risk‖ who was being housed accordingly.

Defense counsel argued that neither the charges brought against Simon nor

the nature of his crimes could alone justify requiring him to wear the stun belt.

14

Further, defense counsel objected to the vagueness of the deputy‘s references to

Simon‘s alleged verbal aggression toward his jailers. He questioned the reliability

of the information and noted that the deputy was not under oath. The deputy

interjected at that point, explaining that an incident had happened that morning.

The trial court then asked for input from the prosecutor, who argued that

Simon had exhibited violent tendencies by taking the time to manufacture

weapons in his cell, and that the court should ensure the safety of the courtroom by

requiring Simon to wear the stun belt. The prosecutor also noted the possibility of

using another type of stun belt that is worn on the leg rather than the waist. A

deputy explained that this device is called a Band-It, but it was being used at

another facility so it was not available that day. The deputies would need two

days‘ lead time in order to obtain it.

After reflecting on the views expressed by counsel and the relevant

information, the trial court ruled that Simon should continue to wear the stun belt

for the penalty phase. The court agreed with defense counsel that verbal

aggressiveness, the threats in the letter, and the nature of the charges and possible

punishment did not warrant use of the stun belt. The court also agreed that Simon

was unlikely to bring a weapon to court. Nonetheless, Simon‘s previous

possession of shanks demonstrated a potential willingness to commit violence.

Observing that only one or two armed deputies would be present, the court

reiterated its concern for the safety of the more than 90 people that would be in the

courtroom. The court also stated it would ―certainly direct the deputies at this

time to put [the stun belt] on in such a way that it is as unobtrusive as possible.‖

In this vein, the court asked again whether the belt could be put on Simon‘s right

side. Although the deputies had previously told the court this was not possible,

they now informed the court that the belt could in fact be placed on Simon‘s right

side for the penalty phase. The court also asked the deputies to look into the

15

possibility of obtaining the Band-It, but defense counsel did not press the matter

further.

b. Legal Standard

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

proceedings, and its decisions on these matters are reviewed for abuse of

discretion. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 389

(Bryant, Smith and Wheeler).) That discretion, however, must yield to principles

of due process. (Ibid.) To that end, we have held that physical restraints of any

kind are inappropriate in the courtroom while the jury is present, unless there is a

manifest need for such restraints. (People v. Duran (1976) 16 Cal.3d 282, 290-

291 (Duran).) This ―manifest need‖ standard applies equally to use of a stun belt.

(Mar, supra, 28 Cal.4th at pp. 1218-1220.) 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. (Bryant, Smith and Wheeler, at p. 389.) The use of physical

restraints in the absence of a record showing of violence, a threat of violence, or

other nonconforming conduct is an abuse of discretion. (Duran, at p. 291.)

No formal hearing is required. But 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. (Mar, supra, 28 Cal.4th

at p. 1221.) 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. (Ibid.) The court‘s determination must be based on facts, not rumor or

innuendo. (People v. Cox (1991) 53 Cal.3d 618, 652.) And even when the record

16

establishes a manifest need for restraints, the restraint imposed must be the least

obtrusive or restrictive one that would be effective under the circumstances.

(Duran, supra, 16 Cal.3d at p. 291; Mar, at p. 1226.)

c. Analysis

Simon argues first that the trial court abused its discretion by applying a

lower standard at the guilt phase to reject his request to have the stun belt

removed. According to Simon, the court improperly applied something akin to a

―good cause‖ standard — rather than the required manifest need standard. In

support of his contention, Simon points to the fact that the court, after sustaining

Simon‘s objection to being shackled, appears to have treated the stun belt issue as

a separate matter. Simon also points to the trial court‘s statement that use of the

stun belt was ―appropriate‖ (instead of ―necessary‖) as suggesting that it applied

something lower than the manifest need standard prescribed by Duran and Mar.

But Simon‘s guilt phase and penalty phase trials predated Mar. In that

case, we held for the first time that the record must demonstrate a manifest need

— rather than mere good cause — for imposition of a stun belt. And even if the

trial court‘s use of the word ―appropriate,‖ rather than ―necessary,‖ may suggest it

applied a lower standard, the record as a whole establishes that the manifest need

standard was met. (See People v. Mayfield (1993) 5 Cal.4th 142, 196 [―The record

of the hearing as a whole persuades us, however, that even though the court, in

isolated instances, misstated the applicable standard, it nevertheless applied the

proper concept‖].)

The record shows that, at the guilt phase, the trial court based its decision

on Simon‘s violent behavior in custody and his potential danger to others in the

courtroom. In particular, the court‘s decision was based on Simon‘s fight with

another inmate; the discovery, on two different occasions, of shanks in Simon‘s

17

cell; the discovery of feces and cleaning products, which Simon had stored in a

container for possible use as an explosive; and Simon‘s threat against a corrections

deputy. The court stated on the record that these incidents showed that Simon was

a potential danger to jurors, court staff, and counsel. Likewise, at the penalty

phase, the court relied on Simon‘s previous possession of shanks as evidence of

his potential readiness to commit violence.

The trial court‘s findings and analysis were sufficient to show a manifest

need for the stun belt. As we have held previously, a defendant‘s disruptive

behavior while in jail, including possession of shanks or explosives, justifies the

imposition of restraints. (See, e.g., People v. Wallace (2008) 44 Cal.4th 1032,

1050 [evidence of fighting with inmates and possession of illegal razors]; People

v. Lewis and Oliver (2006) 39 Cal.4th 970, 1032 [defendant attacked another

inmate and threatened to kill deputies]; People v. Combs (2004) 34 Cal.4th 821,

838 [defendant possessed two shanks in jail and threatened jail deputies]; People

v. Alvarez (1996) 14 Cal.4th 155, 190-192 [fights with inmates, threatening

deputies, and possession of weapons and an explosive device].)

In addition, the record shows the trial court was ―aware of its obligation

[under Duran] to make its own determination on the need for restraints, and not

simply defer to the wishes of the prosecutor or courtroom security personnel.‖

(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 391.) The court explained that

it needed to state on the record the reasons justifying resort to the stun belt and

identified the specific incidents supporting use of that restraint. The court further

demonstrated an understanding of its duty under the Duran line of cases by noting

at the start of the penalty phase that the mere fact of Simon‘s conviction and

potential sentence could not justify imposition of the stun belt. (See Duran, supra,

16 Cal.3d at p. 293 [―we cannot condone physical restraint of defendants simply

because they are prisoners already incarcerated on other charges or convictions‖];

18

see also People v. Hawkins (1995) 10 Cal.4th 920, 944 [―We agree with defendant

that his record of violence, or the fact that he is a capital defendant, cannot alone

justify his shackling‖].) Instead, the court relied on Simon‘s history of possessing

shanks, a circumstance we have held sufficient to show a manifest need for

restraints. (See People v. Combs, supra, 34 Cal.4th at p. 838.)

Simon contends that the incidents of violence supporting the trial court‘s

decision were not described in sufficient detail because the bailiff had no personal

knowledge of the events. This argument is unavailing. We have found that a trial

court can base its decision to restrain a defendant on reliable facts provided by law

enforcement or counsel. (See, e.g., People v. Wallace, supra, 44 Cal.4th at

pp. 1049-1050 [upholding trial court‘s imposition of restraints where deputy

represented that defendant had 16 rules violations while in jail]; People v. Medina

(1995) 11 Cal.4th 694, 731 [prosecutor‘s representations of facts, made without

objection or rebuttal by defendant, properly supported trial court‘s ruling to

impose restraints].) Unlike in People v. Cox, supra, 53 Cal.3d at page 651, where

the trial court‘s decision was based on ― ‗rumors floating through the jail‘ ‖ about

an escape attempt, the court here grounded its decision on incidents that had

already occurred and for which the bailiff provided specific dates. The court also

explained that it had inquired further into the significance of the feces and

cleaning supplies, learning that these items could be used in tandem to create

explosives. Moreover, as in People v. Medina, supra, 11 Cal.4th at page 731,

Simon did not dispute his possession of the shanks and bomb-making components,

or his altercation with another inmate. At the penalty phase, defense counsel did

object on vagueness grounds to the deputy‘s references to Simon‘s verbal

aggressiveness, but the court did not base its decision thereon. To the contrary,

the court explicitly stated that verbal aggression would not warrant imposing the

19

stun belt on Simon. The court based its rulings at both the guilt and penalty

phases on uncontested facts related by the bailiff and sheriff‘s deputies.

Simon argues further that the trial court abused its discretion because it did

not consider whether the stun belt was the least restrictive or obtrusive restraint

under the circumstances. Underlying Simon‘s argument is his claim that the trial

court failed to consider the potential psychological consequences of his wearing a

stun belt and the physical effects from electric shock on individuals with certain

medical conditions — considerations we discussed extensively in Mar. (See Mar,

supra, 28 Cal.4th at pp. 1225-1230.) But we expressly stated that our discussion

of these factors was included as guidance for ―future trials.‖ (Id. at p. 1225, italics

added.) Because the proceedings below were held prior to our decision in Mar,

the trial court was ―not required to foresee and discuss each of the concerns

detailed in that opinion.‖ (People v. Lomax (2010) 49 Cal.4th 530, 562.) The trial

court, therefore, cannot be said to have abused its discretion. (See Bryant, Smith

and Wheeler, supra, 60 Cal.4th at p. 391.)

Simon‘s broader argument also founders. The record shows the trial court

was deliberate in its choice of restraint, ruling that although the stun belt was

appropriate, shackles were not. And defense counsel later conceded that the stun

belt was less obtrusive than traditional shackles. The court also explained that it

was not necessarily concerned Simon would bring in weapons or escape; rather, its

concern was that Simon‘s tendency toward violence posed an undue risk to those

in attendance. Thus, simply searching Simon before he entered the courtroom, as

defense counsel had recommended, was not enough to protect the public in the

court‘s view.

The record further indicates the trial court attempted to make the device as

comfortable and unobtrusive as possible. After Simon complained before the guilt

phase that the stun belt was causing discomfort to his left hip area, the court

20

allowed an extra cushion for Simon and inquired about having the belt

repositioned. Although Simon indicated that the pillow did not ease his

discomfort, when defense counsel objected to the belt at the start of the penalty

phase, he did not argue that Simon had actually been uncomfortable during the

guilt phase — defense counsel noted only that a pillow had to be provided to

alleviate Simon‘s discomfort. The court also directed the deputies to place the belt

on Simon ―in such a way that it is as unobtrusive as possible.‖ The court then

asked them to look into obtaining the Band-It — a stun belt worn on the leg, rather

than the waist — for the remainder of the penalty phase. This device was not

available, however, because it was being used at another facility. But the court did

ask the deputies to investigate obtaining the device, and Simon never raised the

issue again. Contrary to Simon‘s assertions, the court considered less restrictive

security measures and implemented available procedures to address his discomfort

and mitigate the stun belt‘s obtrusiveness.

We therefore hold that the trial court‘s decision to restrain Simon with the

stun belt was not an abuse of discretion.

B. Guilt Phase Issues

1. Warrantless Blood Draw

Simon argues that two blood samples taken following his arrest for the

Sterling homicide were illegally obtained. As a result, Simon contends, the DNA

evidence extracted from the second sample — evidence that connected Simon to

the Anes and Magpali murders — ought to have been suppressed. We find any

error harmless.

a. Background

Simon was arrested in connection with the Sterling homicide between 3:30

and 4:00 a.m. on May 26, 1996. A few hours after Simon had been arrested and

21

transported to the local police station, at approximately 7:00 a.m., investigating

officers arranged for a nurse to draw a sample of Simon‘s blood. Several hours

after the first blood draw, a nurse took a second blood sample. Hair and saliva

samples were also taken. The second blood sample was used to create a DNA

profile that was compared to DNA samples taken from the scene of the Anes and

Magpali murders. The police did not obtain a warrant for either blood sample.

Simon moved to suppress all evidence involving the blood samples,

including the results of DNA testing, on grounds that the samples had been

obtained without a warrant and absent any exception to the warrant requirement.

In opposing the motion, the prosecution explained that at the time the samples

were taken, Simon was on probation for a 1993 attempted robbery conviction.

According to the prosecution, then, the taking was authorized by a probation

search condition — which the investigating officers knew of at the time — that

required Simon to ―[s]ubmit your person and property under your control to search

or seizure at any time of the day or night . . . with or without a warrant, or

probable cause.‖ The prosecution argued in the alternative that the first blood

sample, drawn within hours of Simon‘s arrest for the Sterling homicide, was

needed to determine Simon‘s level of intoxication and state of mind at the time of

the homicide, and that the dissipation of such evidence over time created an

exigent circumstance that excused the warrant requirement. Finally, the

prosecution maintained that Simon‘s DNA profile, which was derived from the

second blood sample, would inevitably have been discovered given that the first

sample had been obtained lawfully and police already had evidence linking Simon

to the Anes/Magpali murders at the time of Simon‘s May 26 arrest.

Following a hearing, the trial court denied Simon‘s motion to suppress. In

the court‘s view, the probation search term ―does include the right to search the

person, . . . including even the bodily fluids, hair, [and] various other samples that

22

might be taken.‖ The court therefore concluded that the blood draws, which the

parties later agreed had been conducted in a ―legally and medically prescribed

manner,‖ were lawful. Simon contends that this ruling was erroneous and that

admission of the DNA evidence derived from the warrantless blood draws violated

his rights to be free of unreasonable searches and seizures under the federal and

California constitutions.

b. Legal Standard

A defendant may move to suppress evidence under section 1538.5 on

grounds that a search without a warrant was unreasonable. A warrantless search is

presumptively unreasonable, and the prosecution bears the burden of

demonstrating a legal justification for the search. (People v. Redd (2010) 48

Cal.4th 691, 719.) In reviewing a trial court‘s ruling on a motion to suppress, we

defer to the trial court‘s factual findings, express or implied, where supported by

substantial evidence. (Ibid.) And in determining whether, on the facts so found,

the search was reasonable for purposes of the Fourth Amendment to the United

States Constitution, we exercise our independent judgment. (Ibid.)

c. Analysis

We have not addressed whether a general probation search condition, such

as the one to which Simon was subject, authorizes a warrantless, nonconsensual

blood draw. (Cf. People v. Jones (2014) 231 Cal.App.4th 1257, 1266 [postrelease

community supervision search condition, which provided that ― ‗[t]he person, and

his or her residence and possessions, shall be subject to search at any time of the

day or night, with or without a warrant . . . ,‘ ‖ encompassed warrantless blood

draws].) And we need not do so here: even if the May 26 blood draws exceeded

the scope of Simon‘s probation search condition, the trial court‘s decision not to

23

suppress the DNA evidence derived from those blood draws was harmless in this

case.

At the time of Simon‘s arrest on May 26, 1996, investigators had

significant evidence linking him to the murders of Anes and Magpali. Five

months earlier — in January — Simon had been pulled over and found in

possession of a nine-millimeter handgun. By May 7 — almost three weeks before

Simon‘s arrest for the Sterling murder — investigators had determined that this

particular gun was the source of the 10 cartridge casings found near the bodies of

Anes and Magpali. In addition, the officers who ordered the blood draw knew that

Simon had recently shot and killed another person (i.e., Sterling).

So when Simon‘s blood was drawn, he was in custody for the Sterling

homicide, and the police had key evidence tying him to the murders of Anes and

Magpali — namely, Simon had been found in possession of the murder weapon.

Given this evidence, and the fact Simon was lawfully in custody for a separate

homicide, the trial court would have, to a near certainty, ordered a subsequent

blood sample be taken from Simon even if the initial samples had been drawn

unlawfully. That new sample would have disclosed Simon‘s DNA profile — the

very information used against him at trial. Any error in not suppressing the blood

samples was therefore harmless. (See People v. Siripongs (1988) 45 Cal.3d 548,

569 [finding any error in not suppressing warrantless blood draw ―harmless‖

because ―even had the [trial] court ruled the blood sample unlawfully drawn,

[probable cause existed so] it could have later ordered a new blood sample to be

drawn‖].)6


6

Following oral argument in this case, the United States Supreme Court held

that the search-incident-to-arrest doctrine does not justify law enforcement‘s
failure to obtain a warrant before drawing the blood of someone lawfully arrested


(footnote continued on next page)

24

2. Severance

Simon argues that the trial court committed reversible error in denying his

motion to sever the Anes/Magpali counts from the Sterling counts. We find no

error.

a. Background

Before the guilt phase, Simon moved to sever the Anes/Magpali charges

(counts 1-5)7 from the Sterling charges (counts 6-7),8 and made several arguments

for why joinder of the offenses would be ―so prejudicial that it would deny [him] a

fair trial.‖ First, Simon argued that evidence from each incident was not cross-



(footnote continued from previous page)

on suspicion of drunk driving. (See Birchfield v. North Dakota (June 23, 2016,
No. 14-1468) ___U.S.___ [2016 WL 3434398].) Warrantless blood draws, in
other words, cannot be justified as a search incident to arrest. This holding does
not change the result here because, we conclude, any error in not suppressing the
blood samples was harmless. And we need not consider the extent, if any, to
which a search incident to arrest differs from a probation search.

7

Count 1 charged Simon with the murder of Anes. It also alleged that he

used a firearm during the murder and that the murder was committed during the
commission of a robbery. Anes‘s missing jewelry and speaker were the basis for
the robbery allegation. Count 2 charged Simon with the murder of Magpali. It
also alleged that he used a firearm during the murder and that the murder was
committed during the commission of a robbery, kidnapping, and rape. Magpali‘s
missing jewelry was the basis for the robbery allegation. Count 3 charged Simon
with the rape of Magpali. It also alleged that he used a deadly weapon during the
rape and that the rape was committed during the course of a kidnapping. Count 4
charged Simon with kidnapping Magpali. It also alleged that he used a firearm
during the commission of the kidnapping. Count 5 charged Simon with
possession of a firearm — on or about December 3, 1995 — after previously being
convicted of attempted robbery.

8

Count 6 charged Simon with the murder of Sterling. It also alleged that he

used a firearm during the murder. Count 7 charged Simon with possession of a
firearm — on or about May 25, 1996 — after previously being convicted of
attempted robbery.

25

admissible because the events were unrelated. Second, he contended that evidence

from both incidents was highly inflammatory. Simon noted that the Anes/Magpali

incident involved the killing of two teenagers, one of whom was sexually

assaulted, and the Sterling shooting appeared to be gang related. Third, Simon

claimed that the evidence supporting the Sterling charges was relatively weak

compared to the ―strong‖ Anes/Magpali charges. And fourth, Simon argued that

because the Sterling charges did not independently give rise to special

circumstances warranting the death penalty, their joinder with the Anes/Magpali

capital offenses would be highly prejudicial.

Following a hearing, the trial court denied Simon‘s motion to sever. The

court offered the following explanation: ―it does appear to me that there is some

potential prejudice. However, I don‘t think that that prejudice outweighs the

benefits. And so without saying more, I‘m going to deny the motion.‖

b. Legal Standard

Section 954, in relevant part, permits the joinder of ―two or more different

offenses of the same class of crimes or offenses.‖ Joinder is ordinarily favored

because it avoids the increased expenditures of funds and judicial resources that

may result from separate trials. (See Alcala v. Superior Court (2008) 43 Cal.4th

1205, 1220 (Alcala).) Joinder, therefore, ―is the course of action preferred by the

law.‖ (Ibid.) Nonetheless, a trial court has discretion to sever properly joined

charges in the interest of justice and for good cause. (§ 954; see People v.

Merriman (2014) 60 Cal.4th 1, 37.)

Our review proceeds in two steps. First, we examine whether, in light of

the information available at the time, the trial court abused its discretion in

denying the severance motion prior to the guilt phase. (People v. Mendoza (2000)

24 Cal.4th 130, 161 (Mendoza).) Where, as here, the statutory requirements for

26

joinder are met,9 a defendant must make a ―clear showing of prejudice‖ to

establish that the trial court abused its discretion in denying the motion. (Id. at

p. 160.) A defendant seeking severance of properly joined charged offenses must

make a stronger showing of potential prejudice than would be necessary to

exclude evidence of other crimes in a severed trial. (People v. Soper (2009) 45

Cal.4th 759, 774.)

Second, even if the trial court‘s ruling was proper as a matter of state law,

we will reverse the judgment if the defendant shows that joinder of the charges

actually resulted in ―gross unfairness‖ amounting to a denial of due process during

the guilt phase. (Mendoza, supra, 24 Cal.4th at p. 162.)

c. Analysis

i. Abuse of Discretion

We analyze severance questions by considering a case‘s specific facts.

Whether a trial court abused its discretion in denying severance depends, thus, on

the particular circumstances of each case. (People v. Sandoval (1992) 4 Cal.4th

155, 172.) The factors we consider are as follows: (1) whether the evidence

relating to the various charges would be cross-admissible in separate trials,

(2) whether any of the charges are unusually likely to inflame the jury against the

defendant, (3) whether a weak case has been joined with a strong case or with

another weak case, and (4) whether one of the charges is a capital offense or the

joinder of the charges converts the matter into a capital case. (People v. Elliott

(2012) 53 Cal.4th 535, 551.)

9

Because murder, rape, robbery, and kidnapping are all assaultive crimes

against the person, the Anes/Magpali incident and the Sterling incident both
involved ―offenses of the same class of crimes,‖ thus satisfying the statutory
requirements for joinder under section 954. (See People v. Ramirez (2006) 39
Cal.4th 398, 438-439; People v. Rhoden (1972) 6 Cal.3d 519, 524-525.)

27

We find that Simon has failed to establish a ―clear showing‖ of potential

prejudice under these factors. (Mendoza, supra, 24 Cal.4th at p. 160.) So he

cannot show the trial court abused its discretion in denying his motion to sever.

(a) Cross-admissibility

The prosecution conceded below that evidence for the separate incidents

would not be cross-admissible in separate trials. Although cross-admissibility of

evidence is often an independently sufficient condition justifying a trial court‘s

denial of severance, it is not a necessary one. (See Alcala, supra, 43 Cal.4th at

pp. 1221-1222, 1227.) In the absence of cross-admissibility, we turn to the

remaining factors to assess whether the trial court abused its discretion. (See

People v. McKinnon (2011) 52 Cal.4th 610, 630-631 (McKinnon).)

(b) Particularly Inflammatory Charges

Simon has not made a clear showing of potential prejudice under this

factor. Comparing the two sets of charges, it appears plain that the Anes/Magpali

murders were more likely to inflame the jury‘s passions. The victims, though no

longer minors, were still teenagers. One of them was shot eight times, while the

other was kidnapped from the scene and raped before being shot twice in the head.

The facts of the gang-related Sterling murder, though far from innocuous, were

unlikely to evoke the same emotions as the Anes/Magpali crimes.

Indeed, courts have recognized that sex crimes can be quite inflammatory,

especially when they involve young victims. (See Williams v. Superior Court

(1984) 36 Cal.3d 441, 452 (Williams) [―It is true that the present case does not

involve the ‗highly inflammatory‘ issue of sex crimes against children‖],

superseded by statute on another ground as stated in Alcala, supra, 43 Cal.4th at

p. 1229, fn. 19.) In Coleman v. Superior Court (1981) 116 Cal.App.3d 129

(Coleman), a Court of Appeal case on which the parties rely, the defendant was

28

charged with sex crimes against an 11-year-old child and a 13-year old child. The

appellate court deemed it prejudicial to join these charges with a more serious

murder charge, in part, because sexual crimes against children are ―highly

inflammatory‖ and might have ―a very serious prejudicial effect upon the jury.‖

(Id. at p. 139.)

But the animating concern underlying this factor is not merely whether

evidence from one offense is repulsive, because repulsion alone does not

necessarily engender undue prejudice. (See People v. Capistrano (2014) 59

Cal.4th 830, 850 (Capistrano).) Rather, the issue is ― ‗ ―whether strong evidence

of a lesser but inflammatory crime might be used to bolster a weak prosecution

case‖ on another crime.‘ ‖ (Ibid.) In Capistrano, for instance, we held that

joinder of a brutal rape incident with a separate robbery did not unduly inflame the

jury against the defendant. (Ibid.) We so held, in part, because the evidence of the

separate robbery was far from weak — the defendant had admitted his

participation in the robbery. (Ibid.) We therefore found no abuse of discretion

because there was little risk that details of the rape would have bolstered an

otherwise weak robbery charge.

Coleman illustrates the flip side of this point. There, the Court of Appeal

explained that the evidence supporting the more serious murder charge was

relatively weak. (See Coleman, supra, 116 Cal.App.3d at p. 138.) Indeed, ―the

only evidence connecting defendant to the [murder] consists of the palm and

thumb prints identified at the scene of the crime.‖ (Ibid.) ―If a juror has a

reasonable and appropriate doubt about the identity of the murderer,‖ continued

the court, ―the juror may find it difficult to maintain that doubt in the face of direct

evidence concerning repulsive crimes against minors committed by [defendant].‖

(Ibid.) As a result, the Court of Appeal found the trial court had abused its

discretion in denying the defendant‘s motion to sever. (Id. at pp. 139-140.)

29

The situation here is similar to that in Capistrano. There is no reason to

presume that the potentially inflammatory evidence of sex crimes from the

Anes/Magpali incident was likely to prejudice Simon regarding the Sterling

charges. Without question, the details of the Anes/Magpali incident are

disturbing. But any effect this evidence would have had on the jury as a result of

joinder was not unduly prejudicial given that the Sterling murder was no more

serious an offense and was also supported by strong evidence. Unlike in Coleman,

where joinder of inflammatory evidence was used to bolster a more serious — but

weaker — case, the Anes/Magpali charges here independently gave rise to the

death penalty by involving several special circumstance allegations. The

Anes/Magpali murders, thus, cannot be characterized as the ―lesser‖ crimes.

(Capistrano, supra, 59 Cal.4th at p. 850.) Moreover, unlike in Coleman, where

the evidence supporting the joined murder charge was relatively weak, here — for

reasons discussed below — the Sterling homicide was supported by strong

evidence.

There is little chance, likewise, that joinder of the Sterling matter

prejudiced Simon with respect to the more inflammatory Anes/Magpali murders.

True, we have recognized that gang evidence, even if relevant, can be ―highly

inflammatory.‖ (McKinnon, supra, 52 Cal.4th at p. 655; see also Williams, supra,

36 Cal.3d at p. 453 [explaining that ―evidence of gang membership . . . might

indeed have a very prejudicial, if not inflammatory effect on the jury in a joint

trial‖].) But Simon does not explain why introducing evidence of a gang rivalry

was sufficiently inflammatory that denial of severance constituted an abuse of

discretion. And our case law is to the contrary.

In McKinnon, we held that the proffered gang evidence ―was not unduly

inflammatory.‖ (McKinnon, supra, 52 Cal.4th at p. 631.) The defendant there

was charged with two unrelated murders. In the first, the defendant walked up to a

30

stranger, placed a gun against that person‘s head, and shot him ―for no apparent

reason.‖ (Id. at p. 620.) In the second, the defendant was engaged in an argument

with a rival gang member before fatally shooting him. (Ibid.) In addition to

evidence of gang name, membership, and rivalry, the prosecution submitted

evidence that the defendant had shot the latter victim in retaliation for a separate

gang-related murder. (Id. at pp. 624-625.)

On appeal, the defendant argued that joinder of the charges was prejudicial

because gang evidence from the second incident was unduly inflammatory.

(McKinnon, supra, 52 Cal.4th at p. 631.) We rejected that argument for three

reasons: (1) the prosecution did not present any other evidence of gang violence

aside from evidence that the murder was related to a prior gang-related killing, (2)

any inflammatory effect of the gang evidence ―paled in comparison‖ to the

prejudicial impact of the ―absolute senselessness‖ of the first incident, and (3) any

inflammatory effect was not prejudicial because both cases were supported by

strong evidence. (Ibid.)

So too here. In this case, as in McKinnon, the gang evidence from one

incident (i.e., the Sterling murder) was not likely to alter the outcome of the other

(i.e., the Anes/Magpali murders). In fact, there was even less gang evidence

introduced here than in McKinnon. In that case, in addition to gang name,

membership, and rivalry, evidence was introduced of a separate gang-related

killing. (McKinnon, supra, 52 Cal.4th at p. 631.) The only gang evidence

admitted here, in contrast, was limited testimony that Sterling‘s gang affiliation

served as the impetus for Simon‘s rage. Furthermore, any inflammatory effect of

the limited gang evidence here ―paled in comparison‖ to the prejudicial effect of

the murder, kidnapping, and rape charges in the Anes/Magpali incident. (Ibid.)

This point is even clearer here than was the case in McKinnon, where the

31

prejudicial impact of the other crime was its ―senselessness‖ (ibid.); here, the

Anes/Magpali charges were both senseless and gruesome.

Unlike in Williams, moreover, where gang affiliation was used to implicate

the defendant as the perpetrator, the gang evidence here was neither relied on nor

was it necessary to link Simon to the strongly supported Anes/Magpali charges.

(Cf. Williams, supra, 36 Cal.3d at p. 453.) Not only was there DNA evidence

linking Simon to the Anes/Magpali murders, but Simon was also found in

possession of the gun used to kill both victims. What made the gang evidence in

Williams prejudicial — to wit, that a jury not otherwise convinced beyond a

reasonable doubt of the defendant‘s involvement might use gang evidence to tip

the scales and convict — is therefore not a concern in the present case. (See also

Capistrano, supra, 59 Cal.4th at p. 853 [joinder of attempted murder charge did

not deprive defendant of a fair trial where the only evidence of defendant‘s gang

membership was the victim‘s testimony that ―he believed defendant was a gang

member‖]; People v. Sandoval, supra, 4 Cal.4th at p. 173 [defendant failed to

show requisite prejudice from joinder of other murder charges because any

―inflammatory effect of defendant‘s gang membership as to the [other] case was

neutralized by the fact that the victims were also gang members‖].)

Only when a defendant has made a clear showing of potential prejudice

may we find an abuse of discretion in this context. (See Mendoza, supra, 24

Cal.4th at p. 160.) There was none here. Simon has not shown the potentially

inflammatory evidence from the Anes/Magpali incident would have altered the

outcome of the Sterling charges, or vice versa.

(c) Weak Case Joined to Strong Case

Simon fails to establish a clear showing of potential prejudice under this

factor because neither the Anes/Magpali incident nor the Sterling incident was a

32

weak case that needed joinder to bolster the likelihood of conviction. (See People

v. Balderas (1985) 41 Cal.3d 144, 173-174.)

The core prejudice concern arising in connection with this issue is that

jurors may aggregate evidence and convict on weak charges that might not merit

conviction in separate trials. (Williams, supra, 36 Cal.3d at p. 453.) This concern

is especially pronounced when evidence of a lesser but inflammatory incident

might be used to bolster a weak prosecution case as to another incident.

(Capistrano, supra, 59 Cal.4th at p. 850.) But even where evidence from one

incident could be considered ―inflammatory‖ as the term is understood in our case

law (see id. at pp. 850-851), we will find no abuse of discretion if the evidence of

guilt for each of the joined incidents is sufficiently compelling (see, e.g.,

McKinnon, supra, 52 Cal.4th at p. 631 [―This was not a matter in which a weak

case was joined with a strong case, or with another weak case, thereby ‗causing a

spillover effect that might have unfairly altered the outcome of the trial.‘

[Citation.] Strong evidence supported both cases‖]).

Such is the case here. Both the Anes/Magpali and Sterling charges were

supported by strong evidence that would likely have merited conviction in

separate trials. As to the Anes/Magpali incident, Simon conceded below that

strong evidence supported these charges. The most damaging piece of evidence

was that Simon‘s DNA profile matched the DNA profile of semen evidence

collected from Magpali‘s body and clothing. Such evidence, we have held many

times, indicates a strong case. (See, e.g., People v. Scott (2015) 61 Cal.4th 363,

396; People v. Hartsch (2010) 49 Cal.4th 472, 494; People v. Geier (2007) 41

Cal.4th 555, 576.) In addition, Simon was found in possession of the gun used to

kill Anes and Magpali during a traffic stop less than seven weeks after the

murders. Simon also exhibited a guilty mind following that stop in trying to

coerce Meeks, Simon‘s front seat passenger, to claim ownership of the firearm.

33

As to the Sterling incident, Simon concedes there was ―strong proof‖ he

shot and killed Sterling. Nonetheless, Simon argued below that the Sterling

charges were ―weak‖ because evidence purportedly suggested the killing was

justified as self-defense or could be mitigated to manslaughter by imperfect self-

defense. Although the availability of defense theories may be relevant under this

factor, there was very little to support the defenses Simon offered in this case.

There was no meaningful evidence either that Sterling was armed or that he was

the aggressor. Quite the opposite. There was substantial evidence in the record

that Simon was the aggressor. In light of the admittedly strong proof that Simon

shot and killed Sterling, combined with testimony that Simon was the aggressor,

we find these charges supported by strong evidence. (See People v. Johnson

(2015) 61 Cal.4th 734, 752 [―Although defendant presented an alibi defense to

[one of the murders], a mere imbalance in the evidence between the joined crimes

does not signal a risk that one charge will be prejudicially bolstered‖].)

Simon‘s possession of the gun used to kill Anes and Magpali, DNA

evidence linking Simon to Magpali‘s rape, and uncontroverted evidence that

Simon — after having been the aggressor — shot Sterling indicate that both

incidents were supported by strong evidence. Consequently, we find no clear

showing of potential prejudice under this factor.

(d) Capital Offense

Although joinder resulted in the Sterling murder being charged as a capital

offense, Simon has not clearly shown potential prejudice under this factor because

joining the charges neither converted the entire matter into a capital case nor

bolstered the possibility of Simon receiving a death sentence.

Denials of severance involving capital charges generally require a ―higher

degree of scrutiny and care.‖ (Williams, supra, 36 Cal.3d at p. 454.) Even greater

34

scrutiny is required, we have said, when the joinder of separate murder charges

gives rise to the special circumstance allegation of multiple murder. (Ibid.) But

nothing in our prior cases suggests that severance is required whenever capital

charges are involved. (People v. Balderas, supra, 41 Cal.3d at p. 171.) Further,

where one of two joined murder incidents would independently give rise to a

capital charge, there is less risk of prejudice. (See People v. Johnson, supra, 61

Cal.4th at p. 752 [explaining that ―joinder of the two killings did not convert the

matter into a capital offense because [one of the killings] included two kidnapping

and robbery special-circumstance allegations and thus made defendant eligible for

the death penalty‖]; People v. Ruiz (1988) 44 Cal.3d 589, 607 [―unlike the

situation in Williams, joinder of the Tanya murder charge did not convert the case

into a capital one, for the properly joined Pauline/Tony charges alone satisfied the

multiple-murder special-circumstance statute‖].)

Here, joining the charges did not convert the matter into a capital case, and

the separate offenses were supported by strong evidence. Without joinder, Simon

would still have faced the death penalty based on the special circumstance

allegations that the murder of Anes was committed during the commission of a

robbery and the murder of Magpali was committed during the commission of a

robbery, kidnapping, and rape. (Former § 190.2, subd. (a)(17)(i)-(iii), now

§ 190.2, subd. (a)(17)(A)-(C).) Moreover, the multiple-murder special-

circumstance allegation was available to the prosecution, even if the Sterling

murder had not been joined, because the Anes/Magpali incident involved two

murders. (See People v. Ruiz, supra, 44 Cal.3d at p. 607.) As a result, joining the

charges did not convert the matter into a capital case.

Furthermore, there was strong evidence supporting each incident. So

neither case posed an undue risk of unjustified conviction. (See People v. Myles

(2012) 53 Cal.4th 1181, 1202 [―In the present case, the evidence supporting each

35

of the murder cases was not weak and neither case posed the risk of an

unjustifiable conviction‖]; People v. Thomas (2012) 53 Cal.4th 771, 800 [finding

―no significant risk of an unjustified conviction on any of the murder charges

because . . . evidence in both cases was strong‖].) Because joinder did not bolster

the possibility of conviction, joinder also did not bolster the possibility of the

death penalty being imposed as punishment. We find no clear showing of

potential prejudice under this factor.

ii. Gross Unfairness

Even if we find that the trial court did not abuse its discretion in denying

severance pretrial, we must also determine ―whether events after the court‘s ruling

demonstrate that joinder actually resulted in ‗gross unfairness‘ amounting to a

denial of defendant‘s constitutional right to fair trial or due process of law.‖

(People v. Merriman, supra, 60 Cal.4th at p. 46.) We find no violation of due

process.

In determining whether joinder resulted in gross unfairness, we have

observed that a judgment will be reversed on this ground only if it is reasonably

probable that the jury was influenced by the joinder in its verdict of guilt. (People

v. Merriman, supra, 60 Cal.4th at p. 49.) But, as noted above, both the

Anes/Magpali charges and the Sterling charges were supported by strong evidence

warranting conviction had the incidents been tried separately. What is more, the

fact that the jury found Simon guilty of first degree murder in the killings of Anes

and Magpali, but only second degree murder of Sterling, ―strongly suggests that

the jury was capable of weighing the evidence and differentiating among [the]

various charges.‖ (People v. Lucas (2014) 60 Cal.4th 153, 217, disapproved on

another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; see

also People v. Jones (2013) 57 Cal.4th 899, 927 [―Where the jury returns a guilty

36

verdict of a lesser crime, or, as here, fails to convict at all on some charges, we are

confident the jury was capable of, and did, differentiate among defendant‘s

crimes‖]; People v. Ruiz, supra, 44 Cal.3d at p. 607 [―the fact that the jury found

defendant guilty of only second degree murder of Tanya strongly suggests that the

jury was capable of differentiating between defendant‘s various murders‖].)

Simon argues nonetheless that joinder resulted in gross unfairness because

the trial court failed to adequately caution jurors against considering evidence

from the Anes/Magpali incident when rendering a verdict on the Sterling counts,

and vice versa. But the court instructed the jury, pursuant to CALJIC No. 17.02,

as follows: ―Each count charges a distinct crime. You must decide each Count

separately. The defendant may be found guilty or not guilty of any or all of the

crimes charged. Your finding as to each Count must be stated in a separate

verdict.‖ Defense counsel also reminded the jury of its duty to consider the facts

separately in his closing argument. Absent some showing to the contrary — a

showing Simon has not provided — we presume the jury followed these

instructions. (See People v. Merriman, supra, 60 Cal.4th at pp. 48-49 [―The

record shows moreover that the jury was instructed on the elements of each of the

charged crimes, told that ‗each count charges a distinct crime,‘ and directed to

‗decide each count separately.‘ (CALJIC No. 17.02.) Absent some showing to

the contrary, we presume the jury followed the court‘s instructions. [Citation.]

No such showing was made here‖].)

Simon‘s reliance on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073

(Bean) is unavailing. In that case, the Ninth Circuit held that, despite the state trial

court‘s having instructed the jury pursuant to CALJIC No. 17.02, the court‘s

refusal to sever two sets of charges deprived the defendant of a fair trial. (Id. at

p. 1083.) Bean is distinguishable on several grounds. First, the prosecutor during

closing argument there ―repeatedly urged the jury to consider evidence of Bean‘s

37

‗modus operandi‘ to determine whether he was guilty of both [sets of] crimes.‖

(Ibid.) Although the prosecutor here, in a couple of instances during closing

argument, appeared to cross-reference the two incidents, these isolated remarks

over the course of 80 pages of transcript did not approach the repeated conflation

of events found in Bean. Second, unlike in Bean, there is no ―substantial

disparity‖ (id. at p. 1085) between the strength of the two cases here such that the

evidence from one risked strengthening an ―otherwise weak case‖ (id. at p. 1083).

As explained above, the evidence supporting both sets of charges was quite strong

here. Simon was arrested with the Anes/Magpali murder weapon, and Simon‘s

DNA profile matched that of semen evidence collected from Magpali.

Uncontroverted evidence also showed that Simon — after having been the

aggressor — shot Sterling in the chest. Third, unlike in Bean, there is ―affirmative

evidence of the jury‘s ability to assess the [two incidents] separately.‖ (Id. at

p. 1086.) The jury here found Simon guilty of first degree murder in the killings

of Anes and Magpali, but only second degree murder of Sterling. We therefore

have no compelling reason to doubt that the jury succeeded in sufficiently

compartmentalizing the evidence. (Id. at p. 1085.)

What we conclude in light of these factors is that Simon has not shown

joinder to have resulted in gross unfairness such that he was deprived of a fair

trial.

3. Failure to Instruct on Imperfect Self-Defense

Simon argues that the trial court erred in failing to instruct the jury on

imperfect self-defense with respect to the Sterling homicide. We see no error.

a. Background

In arguing before the trial court for jury instructions on self-defense,

defense counsel cited testimony that Sterling had been convicted of a prior assault,

38

Haynes‘s statements that she observed an argument outside between Sterling and

Simon, testimony by Haynes and Gentry that they heard three gunshots fired

(implying the existence of another gun), testimony by Gentry that Sterling was

bigger than Simon, and testimony that the fatal shot was fired at close range.

From this evidence, defense counsel asserted, ―it appears from the record at least a

reasonable inference could be drawn that Mr. Simon and Mr. Sterling are arguing

with each other.‖

The prosecutor conceded there was evidence that Sterling and Simon had

been arguing, but that any potential third shot fired most likely came from the

same gun. The prosecutor continued that the defense failed to make a case for

imperfect self-defense ―because there‘s no evidence whatsoever of any fear or

honest belief on [Simon‘s] part here,‖ and ―[b]ecause we have no idea whatsoever

of any aggressive behavior by Mr. Sterling toward Mr. Simon.‖

The trial court denied Simon‘s request for a jury instruction on imperfect

self-defense, stating ―No, I don‘t see it, to be honest with you. I don‘t think

there‘s a factual basis for this . . . .‖ The instructions jurors did receive gave them

the option to find Simon guilty of the lesser included offense of voluntary

manslaughter under a heat of passion or sudden quarrel theory, or to acquit Simon

based on a theory of complete self-defense. Simon now challenges the trial

court‘s refusal to instruct the jury on imperfect self-defense, arguing that a jury

could have concluded that he had an actual but unreasonable belief that he needed

to defend himself against imminent harm from Sterling.

b. Legal Standard

An instance of imperfect self-defense occurs when a defendant acts in the

actual but unreasonable belief that he or she is in imminent danger of great bodily

injury or death. (People v. Duff (2014) 58 Cal.4th 527, 561.) Imperfect self-

39

defense differs from complete self-defense, which requires not only an honest but

also a reasonable belief of the need to defend oneself. (People v. Elmore (2014)

59 Cal.4th 121, 133-134.) It is well established that imperfect self-defense is not

an affirmative defense. (See People v. Barton (1995) 12 Cal.4th 186, 199-201

(Barton).) It is instead a shorthand way of describing one form of voluntary

manslaughter. (Id. at p. 200.) Because imperfect self-defense reduces an

intentional, unlawful killing from murder to voluntary manslaughter by negating

the element of malice, this form of voluntary manslaughter is considered a lesser

and necessarily included offense of murder. (People v. Breverman (1998) 19

Cal.4th 142, 154.)

A trial court has a sua sponte duty to instruct the jury on a lesser included

uncharged offense if there is substantial evidence that would absolve the defendant

from guilt of the greater, but not the lesser, offense. (People v. Waidla (2000) 22

Cal.4th 690, 733 (Waidla).) Substantial evidence is evidence from which a jury

could conclude beyond a reasonable doubt that the lesser offense was committed.

(People v. Manriquez (2005) 37 Cal.4th 547, 587-588 (Manriquez); see also

Barton, supra, 12 Cal.4th at p. 201, fn. 8 [―Substantial evidence is evidence

sufficient to ‗deserve consideration by the jury,‘ that is, evidence that a reasonable

jury could find persuasive‘ ‖].) Speculative, minimal, or insubstantial evidence is

insufficient to require an instruction on a lesser included offense. (Mendoza,

supra, 24 Cal.4th at p. 174; see also Barton, at p. 201 [―the need to [instruct sua

sponte on imperfect self-defense] arises only when there is substantial evidence

that the defendant killed in unreasonable self-defense, not when the evidence is

‗minimal and insubstantial‘ ‖ (fn. omitted)].)

We review de novo a trial court‘s decision not to give an imperfect self-

defense instruction. (See Manriquez, supra, 37 Cal.4th at p. 581; see also Waidla,

supra, 22 Cal.4th at p. 733 [―An appellate court applies the independent or de

40

novo standard of review to the failure by a trial court to instruct on an uncharged

offense that was assertedly lesser than, and included, in a charged offense‖].)

c. Analysis

According to Simon, ―a theory of unreasonable self-defense was supported

by the evidence since jurors may have concluded that [he] actually believed in the

need for self-defense, but that his belief was not objectively reasonable.‖ In

support of this claim, Simon emphasizes how, after his initial showing of

aggressive behavior, he apologized, shook Sterling‘s hand, and hugged him before

leaving the apartment.

We disagree. The facts, though hardly pellucid, suggest that Simon — not

Sterling — was the aggressor in their confrontation. It was Simon who began

cursing at Sterling after the latter identified himself as a member of IE, an

apparent rival of Simon‘s gang. Despite Sterling lifting up his shirt to prove that

he was unarmed, Simon asked for someone to retrieve the gun Simon had brought

to the apartment. Simon asserts he was a changed man once he returned from the

bathroom, claiming that he had ―calmed down‖ at that point and that he had

apologized to Sterling as he shook his hand. Yet moments later, Simon walked

over to Williams and elbowed him in the face. When Gentry sought to intervene,

Simon told her to ―shut up,‖ threatening to shoot her too. Once outside, Simon

and Sterling began to argue. And in an interview with police, Jamal Brown said

that Simon ―totally shot [Sterling] cold blooded.‖ Jamal remarked that Simon had

―shot [Sterling,] what for I don‘t know.‖ Jamal also insisted that he had heard

only two gunshots.

Simon, meanwhile, does not point to any evidence indicating that Sterling

was the aggressor. Nor does Simon present evidence that he ever perceived that

Sterling –– who was unarmed –– posed a risk of imminent peril. Given the

41

paucity of support for Simon‘s position, our decision in Manriquez is also

instructive. (Manriquez, supra, 37 Cal.4th at pp. 580-583.) There, we rejected the

defendant‘s claim that the trial court improperly refused his request for a jury

instruction on imperfect self-defense, noting that the record was ―devoid of

evidence‖ supporting the defendant‘s subjective fear. (Id. at p. 581.) The

evidence there included how the defendant had allegedly told officers he ― ‗had

heard some threats‘ ‖ that the victim wanted to kill him. (Id. at p. 582.) A witness

to the murder testified that the defendant appeared angry when he left the room to

meet the victim, that the victim was unarmed, and that the victim asked the

defendant, ― ‗What is your problem with me?‘ ‖ (Id. at pp. 561-562.) The

defendant did not testify at trial. (Id. at pp. 567-568.)

The record here is equally devoid of evidence tending to show Simon‘s

subjective fear of Sterling. Simon, like the defendant in Manriquez, initiated any

aggressive interactions — here, by cursing at Sterling for being a member of a

rival gang. Similarly, the record indicates that Sterling was unarmed. Simon also

did not testify, and there is no evidence he ever told anyone that he had acted out

of fear.

To the extent Simon argues that the trial court‘s decision to give an

instruction on complete self-defense required it to also instruct on imperfect self-

defense, we find no error. Because we conclude there was not substantial

evidence supporting Simon‘s actual belief that he was in imminent danger of great

bodily injury or death, the trial court would not have erred had it likewise refused

to instruct on complete self-defense. (See People v. Rodriguez (1997) 53

Cal.App.4th 1250, 1270 [―Further, just because the court permitted instructions on

perfect self-defense does not mean that substantial evidence supported the giving

of an imperfect self-defense instruction. To the contrary, it would not have been

error for the trial court to have denied perfect self-defense instructions with regard

42

to Contreras because no substantial evidence supported such a defense‖]; see also

People v. De Leon (1992) 10 Cal.App.4th 815, 824 [―It is hard to fault appellant‘s

logic. If there was substantial evidence of his ‗honest belief‘ for self-defense

purposes, there was substantial evidence of his ‗honest belief‘ for imperfect self-

defense purposes. [¶] But we are satisfied, and so hold, there was not substantial

evidence of ‗honest belief‘ for either self-defense or imperfect self-defense‖].)

We conclude the trial court did not err in refusing Simon‘s request to

instruct on imperfect self-defense.

C. Penalty Phase Issues

1. Victim Impact Evidence

Simon argues that the trial court committed reversible error in admitting

victim impact evidence during the penalty phase of his trial. We are not

convinced.

a. Background

Prior to the penalty phase, Simon moved to exclude victim impact evidence

on multiple grounds. First, Simon called for exclusion of testimony regarding the

appropriate punishment for or characteristics of Simon. The trial court agreed.

Second, Simon requested to limit victim impact testimony to a single surviving

family member. The trial court denied the motion, noting that ―California has

never placed‖ such a limitation. Third, Simon sought to exclude emotional,

tearful, or angry testimony, explaining that some testimony had been very

emotional in the first penalty trial. The trial court agreed that testimony may not

be so emotional that it becomes unduly prejudicial. The court reasoned, however,

that it could not ex ante exclude or even distinguish what qualifies as ―overly

emotional or inflammatory.‖ The court therefore ruled that this issue was

something to monitor as the proceedings developed.

43

Fourth, Simon moved to exclude any testimony or evidence regarding

awards or academic achievements of the victims — a request the trial court

promptly denied. Fifth, Simon asked to exclude artwork by Magpali. The trial

court denied the motion but stipulated that such evidence not be ―overly time

consuming or overly prejudicial.‖ Similarly, Simon moved to exclude ―testimony

regarding future plans‖ of the victims. The trial court ruled such evidence

admissible, reiterating again that such testimony may not be overly time

consuming or specific.

Sixth, Simon sought to exclude photographs and testimony going back to

the victims‘ births, suggesting that any such evidence be limited to ―a period of

time closer to the time of death.‖ The trial court denied Simon‘s objections to

both the baby photographs and the testimony. And seventh, Simon requested that

all victim impact evidence be excluded because such testimony is so broad that it

violates the Eighth Amendment to the United States Constitution and article 1,

section 17 of the California Constitution. The trial court denied the motion while

repeating that there would be limitations. The court recognized that the critical

question is whether victim impact evidence becomes ―overly time consuming,

overly repetitious, things of that nature,‖ which could not be determined at a

pretrial hearing.

b. Evidence Presented

i. Sherry Magpali

Two victim impact witnesses testified regarding Sherry Magpali: her sister

Jasmine and brother Jeffrey.

At the time of her death, Sherry was a 19-year-old student at a local

community college, having graduated magna cum laude from high school the year

before. Jasmine and Jeffrey described their sister as a creative, fun person with a

44

lot of friends. Sherry enjoyed singing, playing dress up, and taking pictures with

her siblings. She also hoped to become an artist and was interested in graphics,

Japanese animation, and poetry. Some of Sherry‘s artwork was entered into

evidence, along with photographs of Sherry as a baby, young child, and young

adult.

The night of the incident, Sherry asked Jasmine and Jeffrey to go with her

to the party, but both declined. The next day, her siblings were at a church retreat

when they were pulled aside and told they had to be taken home. Although they

were not told what had happened, Jasmine said she already knew something was

wrong. Jasmine described getting home, hearing people screaming, seeing her

mother lying on the floor after fainting, and no one telling her what was going on.

Jasmine did not learn about how her sister was murdered until she read the

newspaper. Jasmine described being angry when she heard about the way her

sister was killed. And as a result of her sister‘s death, Jasmine said she became

introverted and was no longer a trusting person. She said her brother Jeffrey

became the same way.

Jeffrey testified that at first he did not believe Sherry had been murdered

because she was such a strong person. He said it hurt knowing how his sister died

and that it would have been different if Sherry had died some other way, like in a

car accident or from a medical condition. He said it was also difficult to attend the

funeral because that was when he realized his sister was really gone.

Jasmine described the impact of Sherry‘s death on their mother. For years

after the incident, Jasmine woke up to her mother crying in the middle of the

night. She also explained that the family did not talk to each other much anymore;

holidays, she said, felt empty.

45

ii. Vincent Anes

Regarding Vincent Anes, three victim impact witnesses testified: his

mother Priscilla Severson, his stepfather Timothy Severson, and his brother Dino

Anes. Jurors were shown approximately 11 photographs of Vincent, ranging from

age seven to death.

Priscilla described Vincent as a good, sweet, and thoughtful boy who was

never in trouble. Vincent was a playful, but obedient, son who always did his

homework and helped his younger brother with math. Vincent had a close

connection with his stepfather, who taught Vincent how to work on cars. At the

time of his death, Vincent was a senior in high school and a good student. Vincent

planned on joining the military, then going to college to become a dentist.

The night of the incident, Priscilla was awakened by Vincent‘s friends,

asking if he was home. She did not understand what Vincent‘s friends were

saying, though, and thought Vincent might have just been in a car accident. Dino

was also awakened and recalled people panicking and screaming. Priscilla called

her parents, who lived nearby, and they all drove to the park. On the way, Dino

prayed that his brother was still alive.

Upon arrival, Priscilla and Dino saw Vincent‘s car but were still unaware

that Vincent was dead. An ambulance arrived too, but no one seemed to be

helping the person in the car — this was the first indication to Dino that his

brother was dead. It was only after Priscilla‘s father told her the person in the

vehicle was Vincent that she knew her son had died.

Timothy testified that he blamed himself for Vincent‘s death. Timothy,

who served in the military and was stationed in Nevada at the time, described how

it was difficult to cope with knowing he had left his family in a place where

Vincent was murdered. The night of the incident, Timothy was awakened by a

coworker saying that he had a phone call. Because Priscilla was so distraught,

46

though, she was unable to speak, so her brother had to explain what had occurred.

Timothy processed paperwork through the Red Cross and got permission from his

superiors to leave, but he was only able to stay with his family in California for a

few weeks. It was difficult to leave so quickly, he told the jury.

Priscilla explained that home life was happy before Vincent‘s death. After

the incident, though, she became very fearful and strict toward Dino. Afraid that

something similar to what happened to Vincent might happen to her other son,

Priscilla would turn the ringer of the house phone off on the weekends so that

Dino‘s friends could not reach him. Although she stopped doing this at some

point because it was not fair to Dino, she still lived in fear whenever Dino left the

house. Priscilla also explained that she was bothered by the way Vincent died and

that she still had nightmares.

Vincent‘s death had a significant impact on Dino, who said he became a

loner. Dino testified that it was difficult to accept his brother‘s death because of

how he was killed; had Vincent died because of a car accident or a medical

condition, it would have been different. Dino could not accept how his brother

was ―brutally murdered‖ and ―humiliated.‖ Dino went on to explain that when he

could not sleep at night, he thought about his brother. Dino said he did not pray

anymore because God did not answer his prayers the night Vincent was murdered.

The family moved away from the area four months after the incident, but

for two years Priscilla traveled to visit the cemetery three or four times a week.

Priscilla described how she saved all of Vincent‘s belongings, including the last

bottle of soda she had shared with him. She explained that the family no longer

celebrated holidays, finding it meaningless to even put up a Christmas tree.

47

iii. Michael Sterling

Michael Sterling‘s sister-in-law, Dyanne Sterling, testified about the effect

of Michael‘s death on her husband (i.e., Michael‘s brother) and son. Michael was

very close to his three brothers, who were all affected by Michael‘s death.

Dyanne‘s son, who was six when Michael died, was also affected. He cried

frequently and missed his uncle.

c. Legal Standard

In a capital case, the Eighth and Fourteenth Amendments to the United

States Constitution permit introduction of evidence about the victim or the impact

of the defendant‘s acts on the victim‘s friends and family. (Payne v. Tennessee

(1991) 501 U.S. 808, 825-827.) Such victim impact evidence is only barred by the

federal Constitution if it is so unduly prejudicial that it renders the trial

fundamentally unfair. (People v. Kopatz (2015) 61 Cal.4th 62, 90 (Kopatz).)

Fundamental unfairness results when testimony ―invite[s] the jury to make its

penalty determination on a purely irrational basis.‖ (People v. Taylor (2010) 48

Cal.4th 574, 646.) California law provides further that victim impact evidence is

admissible under section 190.3, factor (a) as a ―circumstance of the crime.‖

(People v. Edwards (1991) 54 Cal.3d 787, 835-836 (Edwards).) Pursuant to

factor (a), trial courts may allow emotional though relevant evidence, but not

irrelevant information or inflammatory rhetoric that elicits purely emotional or

irrational responses from the jury. (Id. at p. 836; see also People v. Pollock (2004)

32 Cal.4th 1153, 1180.)

We review the trial court‘s admission of victim impact evidence for abuse

of discretion. (People v. Trinh (2014) 59 Cal.4th 216, 245.)

d. Analysis

On appeal, Simon raises three arguments. First, the amount and nature of

the victim impact evidence proffered below violated the due process clause of the

48

Fourteenth Amendment to the United States Constitution. Second, the scope of

victim impact evidence admissible under section 190.3, factor (a) should be

limited to characteristics of the victims known or reasonably apparent to Simon at

the time of the offense, and a more expansive interpretation renders the statute

unconstitutionally vague under the Eighth Amendment to the United States

Constitution and article I, section 17 of the California Constitution. Third, the

proposed victim impact evidence should have been excluded under Evidence Code

section 352 because the risk of undue prejudice substantially outweighed the

evidence‘s probative value.

i. Due Process

Simon argues that the victim impact evidence presented below violated the

due process clause of the Fourteenth Amendment to the United States Constitution

because it was so unduly prejudicial that it rendered the penalty phase

fundamentally unfair. Simon contends the amount, and emotional nature, of the

victim impact evidence was so inflammatory that the jury was led to make a

―passionate, irrational, and purely subjective‖ decision based on the sorrow of the

victims‘ families.

But we need not address whether the amount or emotional nature of the

victim impact evidence was unconstitutionally prejudicial. Because Simon failed

to properly object to the evidence, he forfeited the issue on appeal. (See People v.

Wilson (2005) 36 Cal.4th 309, 357 [concluding that ―defendant forfeited his claim

because he failed to object to the testimony as exceeding the scope of section

190.3, factor (a)‖].) Although Simon raised many objections to the scope of

permissible victim impact evidence prior to the penalty phase, the trial court

reached few express rulings: (1) testimony need not be limited to one witness per

victim, (2) evidence of awards, artwork, achievements, and future plans were not

49

per se inadmissible, and (3) testimony and evidence need not be limited to the time

surrounding the victims‘ deaths.

The trial court also warned that the victim impact evidence should not be

overly time consuming or overly emotional, but the court deferred making any

specific rulings on this score pretrial. It was therefore incumbent upon Simon to

monitor the victim impact evidence on an ongoing basis during the penalty phase

and raise any specific objections at that time. (See People v. Romero and Self,

supra, 62 Cal.4th at pp. 45-46 [finding victim impact evidence claim ―forfeited‖

because the ―motion in limine sought to broadly exclude all victim impact

evidence on constitutional grounds, and did not specifically object to the

admission of any particular witness‘s testimony anticipated in this case‖; instead,

―it was incumbent on defendants to object if they believed the testimony actually

presented was ‗excessive, improper, inflammatory, and highly prejudicial‘ ‖].)

Even if Simon‘s claim were not forfeited, his argument fails on the merits

because the victim impact evidence was not unduly prejudicial. The family

members‘ testimony here properly described the nature of their relationships with

the victims, how they learned about the crimes, and how the crimes impacted their

lives. (See Kopatz, supra, 61 Cal.4th at p. 91 [finding no error where ―the family

members‘ testimony properly explained the nature of their relationship with the

victims, the immediate effects of the murders, and the residual and continuing

impact of the murder on their lives‖]; People v. Chism (2014) 58 Cal.4th 1266,

1326-1327 (Chism) [finding no error where the family members‘ testimony ―was

limited to explain the nature of their relationship with the victim, the immediate

effects of the murder, and the residual and continuing impact of the murder on

their lives‖].) Furthermore, neither the number of witnesses — six — nor the

amount of testimony — 59 pages‘ worth — was excessive. (See, e.g., People v.

Romero and Self, supra, 62 Cal.4th at p. 46 [no error where victim impact

50

testimony consisted of six witnesses spanning 96 pages of the reporter‘s

transcript]; see also People v. Pearson (2013) 56 Cal.4th 393, 464-467 [victim

impact testimony of 13 witnesses]; People v. Nelson (2011) 51 Cal.4th 198, 219-

221 [victim impact testimony of one victim‘s six family members].)

Moreover, the content of the victim impact evidence was not so emotional

that it became unduly prejudicial. Simon is likely correct that the testimony

painted a picture of ―the complete devastation of two families,‖ but that is to be

expected when loved ones have been brutally murdered. (See Kopatz, supra, 61

Cal.4th at pp. 90-91 [explaining that the devastating effect of a capital crime on

loved ones and the community is generally relevant and admissible]; Chism,

supra, 58 Cal.4th at p. 1328 [―Evidence presented at the penalty phase need not be

devoid of emotional content‖].) The question is not simply whether victim impact

evidence was emotional or demonstrated the devastating effect of the crime;

rather, it is whether the testimony invited an irrational response from the jury.

(See People v. Tully (2012) 54 Cal.4th 952, 1030.) Simon, however, provides no

persuasive basis for us to conclude that the testimony presented in this case

triggered such a response. And our review of the record indicates the testimony

was not so emotional that the trial court‘s failure to exclude it amounted to an

abuse of discretion or rendered Simon‘s trial fundamentally unfair. (See People v.

Trinh, supra, 59 Cal.4th at pp. 245-246.)

ii. Vague

Simon argues that in Edwards, supra, 54 Cal.3d 787, we incorrectly held

that victim impact evidence admitted under section 190.3, factor (a) may

encompass facts unknown to the defendant at the time of the offense. As support,

Simon relies on Justice Kennard‘s concurring and dissenting opinion in People v.

Fierro (1991) 1 Cal.4th 173, which advanced such an interpretation. (Id. at

51

pp. 262-263 (conc. & dis. opn. of Kennard, J.).) Simon also argues that

interpreting section 190.3, factor (a) to include facts unknown or not reasonably

apparent to him at the time of the offense renders the statute unconstitutionally

vague.

As Simon acknowledges, however, we have rejected these arguments ––

and we have done so repeatedly –– since Edwards was decided. (See, e.g.,

People v. Montes (2014) 58 Cal.4th 809, 877; People v. Zamudio (2008) 43

Cal.4th 327, 364-365; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1057;

People v. Boyette (2002) 29 Cal.4th 381, 445, fn. 12.) Simon offers no different or

persuasive reason for us to revisit our prior rulings.

iii. Evidence Code Section 352

Evidence Code section 352 provides: ―The court in its discretion may

exclude evidence if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of time or (b)

create substantial danger of undue prejudice, of confusing the issues, or of

misleading the jury.‖ Simon contends that the victim impact evidence should have

been excluded under this provision as substantially more prejudicial than

probative. What he argues is that the victim impact evidence was ―bound to

intensify natural feelings of sympathy for the victims and their families and may

have encouraged a desire for retribution against [Simon by] inviting an emotional

and purely subjective response‖ because it was not limited to a single witness or to

the time surrounding the victims‘ deaths, and it was ―emotionally charged and

detailed.‖

We find no abuse of discretion here. (See People v. Brady (2010) 50

Cal.4th 547, 583 [reviewing cumulative effect of victim impact testimony under

Evid. Code, § 352 for abuse of discretion].) The victim impact evidence was not

52

unduly prejudicial because the testimony did not invite the jury to form an

― ‗irrational, purely subjective response.‘ ‖ (Edwards, supra, 54 Cal.3d at p. 836.)

The testimony here properly described how the murders impacted the witnesses‘

lives and did not paint a picture of the crimes as any more disturbing than the

evidence already showed. (See Kopatz, supra, 61 Cal.4th at p. 91; Chism, supra,

58 Cal.4th at pp. 1326-1327.) Nor was it improper for the family members to

testify that the nature of the murders made the aftermath especially difficult for

them. (See People v. Montes, supra, 58 Cal.4th at p. 880 [finding no error where

each of the ―relative[s] testified the unexpected and abrupt nature of [the victim‘s]

death made it especially painful‖].) As a result, Simon has failed to show the trial

court abused its discretion in concluding that the probative value of the victim

impact evidence was not substantially outweighed by any risk of undue prejudice.

2. Victim Impact Instructions

Simon argues that the trial court failed to fulfill its sua sponte duty to

properly instruct the jury as to victim impact evidence. We find no error.

a. Background

At the penalty phase, the trial court instructed jurors with a modified

version of CALJIC No. 8.84.1: ―You will now be instructed as to all of the law

that applies to the penalty phase of this trial. [¶] . . . [¶] You must determine what

the facts are from the evidence received during the trial unless you are instructed

otherwise. You must accept and follow the law that I state to you. You may

consider pity, sympathy, or mercy for the defendant in determining the penalty in

this case which you find to be warranted under the circumstances. [¶] You must

neither be influenced by bias or prejudice against the defendant, nor swayed by

public opinion or public feeling. Both the People and the defendant have the right

to expect that you will consider all the evidence, follow the law, exercise your

53

discretion conscientiously, and reach a just verdict.‖ The trial court also instructed

the jury with CALJIC No. 8.85.

On appeal, Simon acknowledges that he ―did not request an instruction

regarding the appropriate use of victim impact evidence.‖ He argues, however,

that this failure did not absolve the trial court of its sua sponte duty to provide

jurors with the guidance necessary for them to properly consider the victim impact

evidence in the case. According to Simon, the trial court‘s failure to give an

appropriate limiting instruction violated his ―right to a decision by a rational and

properly-instructed jury, his due process right to a fair trial, and his right to a fair

and reliable capital penalty determination‖ under the federal and state

constitutions.

Simon contends that an appropriate instruction, derived from State v.

Koskovich, (N.J. 2001) 776 A.2d 144, 177, and Commonwealth v. Means, (Pa.

2001) 773 A.2d 143, 159, would have been: ―Victim impact evidence is simply

another method of informing you about the nature and circumstances of the crime

in question. You may consider this evidence in determining an appropriate

punishment. However, the law does not deem the life of one victim more valuable

than another; rather, victim impact evidence shows that the victim, like the

defendant, is a unique individual. Your consideration must be limited to a rational

inquiry into the culpability of the defendant, not an emotional response to the

evidence. Finally, a victim-impact witness is precluded from expressing an

opinion on capital punishment and, therefore, jurors must draw no inference

whatsoever by a witness‘s silence in that regard.‖

b. Legal Standard

In general, a defendant‘s failure to request a clarifying jury instruction

forfeits any objection thereto. (People v. Russell (2010) 50 Cal.4th 1228, 1273;

54

see also People v. Arias (1996) 13 Cal.4th 92, 171 [―defendant‘s failure to request

a clarifying instruction waives that claim‖]; People v. Rodrigues (1994) 8 Cal.4th

1060, 1192 [―if defendant believed the instruction was unclear, he had the

obligation to request clarifying language. . . . [¶] . . . [¶] Defendant‘s failure to

request such clarifications at trial bars appellate review of the issue‖].)

Nonetheless, a trial court has a duty to instruct sua sponte ―on those general

principles of law that are closely and openly connected with the facts before the

court and necessary for the jury‘s understanding of the case.‖ (People v. Price

(1991) 1 Cal.4th 324, 442.)

c. Analysis

Simon concedes that he failed to request a clarifying jury instruction

pertaining to victim impact evidence. His claim, hence, is forfeited. (See People

v. Russell, supra, 50 Cal.4th at p. 1273.)

Simon argues nevertheless that the trial court had a sua sponte duty to

deliver an appropriate limiting instruction akin to the one proposed above. We

have rejected the same argument — and the exact same proposed instruction —

before. Indeed, we have repeatedly held that the trial court‘s use of jury

instructions CALJIC Nos. 8.84.1 and 8.85 is sufficient to address a defendant‘s

concerns about the proper use of victim impact evidence, and is consistent with his

or her federal and state constitutional rights to due process, a fair trial, and a

reliable penalty determination. (See People v. Zamudio, supra, 43 Cal.4th at

pp. 369-370; see also People v. Carrington (2009) 47 Cal.4th 145, 198 [―We

previously have rejected these same contentions‖]; People v. Bramit (2009) 46

Cal.4th 1221, 1245 [―We recently considered this instruction and concluded it is

neither required nor appropriate‖].)

55

As the jury here was instructed according to CALJIC Nos. 8.84.1 and 8.85,

and Simon offers no persuasive reason to revisit our prior rulings, we see no error.

3. Prosecution Rebuttal Evidence

Simon argues that the trial court committed reversible error by admitting

irrelevant and highly prejudicial rebuttal evidence at the penalty phase. We are

not persuaded.

a. Background

During the penalty phase, Simon presented expert witness testimony

regarding his brain injuries, as well as testimony from his mother and relatives

regarding his difficult childhood and their loving relationships with him. Simon‘s

family members testified that he was a good role model, a ―disciplined young

person,‖ and ―quite a good kid.‖ His cousin Richardson testified that Simon was

supportive and helpful when she was pregnant. Simon‘s half sister also testified

that Simon had given her good advice in the past, dissuading her from adopting a

lifestyle of crime.

At the close of the defense‘s case, the prosecution sought to introduce as

rebuttal evidence a letter that Simon purportedly had written to his wife, Keisia,

while incarcerated. The letter contained threatening and explicit language directed

at Keisia, calling her ―bitch‖ and ―roadkill‖ and warning that Simon would ―get‖

her. The prosecution argued that it was admissible to counter the evidence Simon

had introduced of his good character. In particular, the letter was necessary to

counter the defense evidence that Simon was ―a person of such character that he‘s

important for his family members to maintain a relationship with him, maybe

someone they can go to for advice.‖ Defense counsel objected to the letter‘s

admission, stating: ―I haven‘t gone into [Simon‘s] character trait for violence.‖

The trial court overruled this objection, and the letter was read to the jury.

56

Simon now contends that the trial court committed reversible error in

admitting this evidence. This decision, he contends, violated his rights to have

reasonable time limits placed on the admission of aggravating evidence, to receive

due process and a fair trial, and to a reliable penalty determination. Simon asserts

that because he did not introduce any evidence relating to his character for

nonviolence, evidence showing his character for violence constituted improper

rebuttal.

b. Legal Standard

When a defendant claims that his or her general character weighs in favor

of mercy, a prosecutor is entitled to rebut that claim with evidence or argument

offering a different account of the defendant‘s character. (See People v. Loker

(2008) 44 Cal.4th 691, 709 [―When a defendant places his character at issue

during the penalty phase, the prosecution is entitled to respond with character

evidence of its own‖]; People v. Rodriguez (1986) 42 Cal.3d 730, 791.) If the

defendant‘s good character evidence ―was not limited to any singular incident,

personality trait, or aspect of his background‖ and ―painted an overall picture of an

honest, intelligent, well-behaved, and sociable person incompatible with a violent

or antisocial character,‖ the prosecution may introduce appropriate rebuttal

evidence of the scope offered. (People v. Mitcham (1992) 1 Cal.4th 1027, 1072.)

But that scope must still be specific, as we have rejected the idea that any evidence

introduced for the defendant‘s good character will open the door to any and all bad

character evidence from the prosecution. (People v. Rodriguez, supra, 42 Cal.3d

at p. 792, fn. 24.)

A trial court has broad discretion when determining the admissibility of

rebuttal evidence, and we review a trial court‘s decision to admit such evidence for

abuse of discretion. (See People v. Valdez (2012) 55 Cal.4th 82, 170 [―absent

57

palpable abuse, an appellate court may not disturb the trial court‘s exercise of that

discretion‖].)

c. Analysis

Admitting the letter here was not an abuse of discretion. The vile,

threatening language Simon employed in the letter to his wife undermined the

defense‘s evidence that Simon was supportive of the women in his life and was

someone they could turn to for sound advice. The letter‘s menacing language —

including repeated threats to Keisia‘s life — suggested that Simon possessed

negative, aggressive attitudes toward women that stood in stark contrast to the

testimony of his positive character attributes.

Our decision in People v. Rodriguez, supra, 42 Cal.3d 730, is instructive.

There, we affirmed the ability of the prosecutor to rebut evidence of the

defendant‘s general character. (Id. at p. 791.) The prosecutor referred to an

incident where the defendant had supposedly reached for a sawed-off shotgun in

the back seat during a traffic stop. (Id. at pp. 745, 791.) We held that the incident

was properly admitted, as it rebutted evidence that the defendant ―was a kind,

loving, contributive member of his community, regarded with affection by

neighbors and family.‖ (Id. at p. 791.) Similarly, the defense evidence here

sought to portray Simon as a kind individual who was supportive of the women in

his life. The letter refuted that portrayal.

As the letter, though sharply worded, was relatively short in comparison to

the good character evidence the defense had offered, and because it pertained

directly to that evidence, we conclude the trial court did not abuse its discretion in

allowing it.

58

4. Reference to Other Murder Cases

Simon claims that the trial court violated his rights to counsel and due

process at the penalty phase by refusing to allow defense counsel to refer to other

prominent murder cases during closing argument. We disagree.

a. Background

During closing argument, defense counsel urged the jury when considering

whether Simon deserved the death penalty to ―put him in that category of

convicted offenders of special circumstances murder, and then evaluate whether

he‘s the worst in that — or among the worst in that category.‖ Using a pyramid

graphic to illustrate the different categories of murder, defense counsel argued that

only a narrow group of people liable for a special circumstances murder qualify

for the death penalty. Defense counsel then referred to the murderers Timothy

McVeigh and Charles Manson as points of comparison for the jurors to consider

when deciding if Simon deserved to die. After hearing this remark, the prosecutor

objected.

During a discussion outside the jury‘s presence, the trial court stated, ―I

think the comparison argument need be made to a point, up to the point to where

we‘re talking about first degree murders are not available for death penalty,‖ but it

expressed concerns with comparing first degree murders with special

circumstances. The prosecutor contended that defense counsel‘s argument that

Simon was ―not as bad as‖ Timothy McVeigh and Charles Manson was improper

because the penalty phase requires an individual determination based on the

defendant‘s own crime and background. The prosecutor cited People v. Jenkins

(2000) 22 Cal.4th 900, 1052 to support the proposition that under section 190.3,

factor (a), a jury‘s consideration of the circumstances of the crime committed must

be individualized, not comparative. The court sustained the objection, agreeing

with the prosecutor that ―[i]t comes down to an individual determination of guilt

59

and not a comparative balancing of whether or not [Simon‘s] crime is worse than

Timothy McVeigh‘s.‖ The court did not, however, give a curative instruction to

the jury.

On appeal, Simon relies on People v. Millwee (1998) 18 Cal.4th 96, 153 to

show that during penalty phase closing argument counsel may discuss ―other cases

and crimes in order to assist jurors in exercising sentencing discretion.‖ Simon

suggests that trial courts may only limit the scope of defense counsel‘s closing

argument when that argument would be overly time consuming. Further, Simon

contends that because the trial court here based its ruling on an incorrect

interpretation of law, its limitation cannot be an appropriate exercise of discretion.

Simon maintains that these alleged errors were prejudicial and ―skewed the

weighing process in favor of the prosecution,‖ resulting in the denial of Simon‘s

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

penalty determination.

b. Legal Standard

Criminal defendants enjoy a constitutional right to have counsel present

closing argument to the trier of fact. (People v. Benavides (2005) 35 Cal.4th 69,

110; see Herring v. New York (1975) 422 U.S. 853, 858 [―There can be no doubt

that closing argument for the defense is a basic element of the adversary

factfinding process in a criminal trial‖].) This right, however, is subject to certain

limits. (People v. Benavides, supra, at p. 110.) A trial court may impose

reasonable time limits and may ensure that argument does not ―stray unduly from

the mark.‖ (People v. Marshall (1996) 13 Cal.4th 799, 854-855.) Trial courts

have broad discretion to control the duration and scope of closing arguments. (See

Herring v. New York, supra, at p. 862 [―In all these respects [the trial court] must

have broad discretion‖].)

60

We review a trial court‘s decision to limit defense counsel closing

argument for abuse of discretion. (See People v. Rodrigues, supra, 8 Cal.4th at

p. 1184.)

c. Analysis

On numerous occasions, we have upheld a trial court‘s refusal to allow

defense counsel to compare the defendant to specific well-known murderers or

their crimes. (See, e.g., People v. Virgil (2011) 51 Cal.4th 1210, 1285-1287;

People v. Hughes (2002) 27 Cal.4th 287, 399-400; People v. Roybal (1998) 19

Cal.4th 481, 528-529 (Roybal); People v. Marshall, supra, 13 Cal.4th at pp. 853-

855.) So long as the defendant is allowed to ―make his central point and to argue

in general terms that there were ‗worse cases‘ than his,‖ the trial court‘s refusal is

within its broad discretion. (People v. Hughes, at p. 400.) As relevant to the

present case, we have held that a trial court‘s instruction that jurors may not

compare the defendant‘s crime with any other crime does not constitute prejudicial

error. (Roybal, at p. 529.)

As an initial matter, we disagree with Simon‘s suggestion that a trial court

may only limit defense counsel‘s closing argument if it is overly time consuming.

To the contrary, trial courts have ―broad discretion‖ to limit both the duration and

scope of closing arguments. (Herring v. New York, supra, 422 U.S. at p. 862.)

Thus, the trial court‘s decision to preclude Simon‘s defense counsel from making

specific references to well-known murderers need not be based on time

considerations only.

We also disagree with Simon‘s contention that the trial court improperly

limited defense counsel during closing argument. The trial court‘s refusal to allow

defense counsel to compare Simon‘s crimes with the murders committed by the

likes of Timothy McVeigh and Charles Manson was well within its broad

61

discretion. (See People v. Virgil, supra, 51 Cal.4th at pp. 1285-1287 [finding no

abuse of discretion where trial court prohibited defense counsel from referencing

prosecutions of O.J. Simpson and the Menendez brothers].)

We upheld a similar limitation in People v. Farley (2009) 46 Cal.4th 1053

(Farley). In Farley, the defendant argued that the trial court erred by prohibiting

defense counsel from arguing at closing that the defendant‘s crimes were not as

bad as other capital defendants. (Id. at pp. 1129-1130.) Defense counsel sought to

refer to infamous murderers like Richard Ramirez, David Carpenter, and Ramon

Salcido. (Id. at p. 1130.) But the trial court ―ruled that counsel would ‗not be

permitted to engage in a comparative analysis of other death penalty cases or other

murder cases . . . .‘ ‖ (Ibid.) While the trial court barred defense counsel from

mentioning specific cases, names, and penalties, it permitted counsel to argue

― ‗this is not a child torture case or something like that.‘ ‖ (Ibid.) We upheld the

trial court‘s refusal, explaining that counsel was not precluded from making his

central point that the ―defendant‘s murders were not ‗the worst of the worst.‘ ‖

(Id. at p. 1131.) The same is true here. Although the trial court below did not

allow defense counsel to mention specific names, defense counsel was still

permitted to ask the jury to consider if Simon was among the worst in the category

of convicted offenders of special-circumstances murder. As in Farley, then, we

find no constitutional violation.

Nor would we likely have found such a violation had the trial court

instructed the jury against comparing Simon‘s crimes to any others. (See Roybal,

supra, 19 Cal.4th at pp. 528-529.) In Roybal, defense counsel sought to compare

the defendant‘s case to the so-called ―Billionaire Boys Club‖ murders. (Id. at

p. 528.) The trial court sustained an objection by the prosecutor and instructed

jurors, ― ‗[Y]ou may not attempt to compare this crime, this murder, with any

other murder. In other words, you can‘t indulge in comparisons. . . . You focus on

62

the facts associated with this case, with this defendant, with this crime.‘ ‖ (Ibid.,

italics added.) We upheld the trial court‘s instruction, reasoning that the defendant

could still argue his central point that the circumstances of his crime were

mitigated by his background and emotional and mental disorders. (Id. at p. 529.)

Here, as in Roybal, Simon‘s defense counsel was not precluded from

making his central argument that not every person (Simon included) found liable

for special circumstances murder deserves the death penalty. And even had the

trial court admonished the jury with a curative instruction following defense

counsel‘s comparative references — which the court did not do — Roybal

demonstrates that such an instruction would likely have been proper. (Roybal,

supra, 19 Cal.4th at p. 529.) Thus, the trial court‘s decision here did not constitute

an abuse of discretion.

5. Other Challenges to the Death Penalty Statute

Simon raises numerous challenges to California‘s death penalty scheme

that we have repeatedly considered and rejected. He fails to persuade us to

reconsider our previous holdings. As a result, we again conclude:

The death penalty is not unconstitutional for failing broadly to ―adequately

narrow the class of murderers eligible for the death penalty.‖ (Bryant, Smith and

Wheeler, supra, 60 Cal.4th at p. 468.) Section 190.3, factor (a), which permits the

jury to consider the circumstances of a defendant‘s crime in determining whether

to impose the death penalty, does not license the jury to impose death in an

arbitrary and capricious manner in violation of the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution. (People v. Boyce

(2014) 59 Cal.4th 672, 723 (Boyce); People v. Enraca (2012) 53 Cal.4th 735,

769.)

63

Nor is the death penalty unconstitutional ―for failing to require proof

beyond a reasonable doubt that aggravating factors exist, outweigh the mitigating

factors, and render death the appropriate punishment.‖ (Boyce, supra, 59 Cal.4th

at pp. 723-724.) This conclusion is not altered by the United States Supreme

Court‘s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, and Ring v.

Arizona (2002) 536 U.S. 584. (Boyce, at p. 724.) Neither does the federal

Constitution require that the jury make written findings regarding aggravating

factors. (People v. DeHoyos (2013) 57 Cal.4th 79, 150.)

Section 190.3 does not require California courts to undertake a comparison

between the case at bar and other similar cases with respect to the relative

proportionality of the sentence imposed. Nor does the federal Constitution

mandate such intercase proportionality review. (People v. Contreras (2013) 58

Cal.4th 123, 173.)

During the penalty phase, the jury may consider a defendant‘s

unadjudicated criminal activity and need not unanimously agree beyond a

reasonable doubt that such criminal activity occurred. (People v. Nelson, supra,

51 Cal.4th at p. 226.)

The use of adjectives such as ―extreme‖ and ―substantial‖ in the list of

potential mitigating factors in section 190.3 does not unconstitutionally obstruct

the jury‘s ability to consider mitigating evidence. (People v. Martinez (2010) 47

Cal.4th 911, 968; see Boyce, supra, 59 Cal.4th at p. 724.) Moreover, the trial

court ―need not instruct the jury that mitigating factors can be considered only in

mitigation.‖ (Boyce, at p. 724.)

California does not deny capital defendants equal protection of the law by

providing certain procedural protections to noncapital defendants that are not

afforded to capital defendants. (People v. Williams (2013) 58 Cal.4th 197, 295.)

64

International norms and treaties do not render the death penalty

unconstitutional as applied in this state. (People v. Williams, supra, 58 Cal.4th at

pp. 295-296.)

Finally, the cumulative impact of these purported deficiencies in

California‘s death penalty scheme does not render the penalty unconstitutional.

We have rejected each of Simon‘s challenges to the death penalty statute, and

these challenges are no more persuasive when considered together. (See People v.

Williams, supra, 58 Cal.4th at p. 296; People v. Garcia (2011) 52 Cal.4th 706,

764-765.)

65

III. CONCLUSION

For the reasons stated above, we affirm the judgment in its entirety.

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.


66

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Simon
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S102166
Date Filed: July 18, 2016
__________________________________________________________________________________

Court:
Superior
County: Riverside
Judge: Gordon R. Burkhart

__________________________________________________________________________________

Counsel:

Kimberly J. Grove, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Holly D. Wilkens, Robin Derman and Eric A. Swenson, Deputy Attorneys
General, for Plaintiff and Respondent.

















Counsel who argued in Supreme Court (not intended for publication with opinion):

Kimberly J. Grove
P.O. Box 425
Ligonier, PA 15658
(724) 238-3497

Eric A. Swenson
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2216


Opinion Information
Date:Docket Number:
Mon, 07/18/2016S102166