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People v. Simon

Supreme Court of California

July 18, 2016

The People, Plaintiff and Respondent,
v.
Richard Nathan Simon, Defendant and Appellant.

         Superior Court of Riverside County, No. CR-68928 Gordon R. Burkhart Judge

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         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.

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         OPINION

         Cuéllar, J.

         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)).

         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.

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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 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 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.

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         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 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.

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         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.

         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.

         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

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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 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.”

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         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 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 occasions. The prosecution also introduced

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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.

         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 to 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.

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         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).”

         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 Simon’s cell; in August 1999, jail

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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, 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

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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. 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

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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 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 [178 Cal.Rptr.3d 185, 334 P.3d 573] (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 [127 Cal.Rptr. 618, 545 P.2d 1322] (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 [280 Cal.Rptr. 692, 809 P.2d 351].) And even when the record 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.)

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         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—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 [19 Cal.Rptr.2d 836, 852 P.2d 331] [“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 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 [81 Cal.Rptr.3d 651, 189 P.3d 911] [evidence of fighting with inmates and possession of illegal razors]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1032 [47 Cal.Rptr.3d 467, 140 P.3d 775] [defendant attacked another inmate and threatened to kill deputies]; People v. Combs (2004)

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34 Cal.4th 821, 838 [22 Cal.Rptr.3d 61, 101 P.3d 1007] [defendant possessed two shanks in jail and threatened jail deputies]; People v. Alvarez (1996) 4 Cal.4th 155');">14 Cal.4th 155, 190-192 [58 Cal.Rptr.2d 385, 926 P.2d 365] [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”]; see also People v. Hawkins (1995) 10 Cal.4th 920, 944 [42 Cal.Rptr.2d 636, 897 P.2d 574] [“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 [47 Cal.Rptr.2d 165, 906 P.2d 2] [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 ...


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