County Super. Ct. No. 99CM7335 Peter M. Schultz Judge
Michael J. Hersek, State Public Defender, under appointment
by the Supreme Court, and Jolie Lipsig, Deputy State Public
Defender, for Defendant and Appellant.
D. Harris, Attorney General, Dane R. Gillette and Gerald A.
Engler, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Ward A. Campbell,
Stephanie A. Mitchell, Sean M. McCoy and Tia M. Coronado,
Deputy Attorneys General, for Plaintiff and Respondent.
Anthony Gilbert Delgado, killed two fellow inmates while
serving a 25-year-to-life sentence in Corcoran State Prison.
A jury convicted him of two counts of first degree murder,
with the special circumstances of lying in wait and multiple
murders; two counts of assault by a life
prisoner with malice aforethought,  with findings that the
assaults proximately caused the victims' deaths; battery
by a prisoner on a correctional officer; and possession of a
sharp instrument by a prisoner. It also found he had
suffered two prior felony convictions within the meaning of
the “Three Strikes” law.
jury returned a death verdict and the trial court entered a
conforming judgment,  as well as two consecutive terms of 25
years to life for the battery and weapon possession counts.
This appeal is automatic. We affirm the judgment in its
Murder of Frank Mendoza
September 30, 1998, defendant and Frank Mendoza shared a
cell. Around 11:15 p.m., an officer noted that both men were
lying on their bunks watching television. About 25 minutes
later, defendant called out, and Officer Carmona went to
investigate. He saw Mendoza slumped forward on his knees
between the two beds. Defendant calmly walked over to
Mendoza, lifted him up by a cloth wrapped around his neck,
and dropped him back to the ground. Mendoza had been
strangled to death. A pillowcase covered his face, secured by
a torn bed sheet. A white sock and second torn sheet were
tied around his mouth. Written on the back of Mendoza's
T-shirt were the words: “There's consequences to
everything. He paid his and I'm to pay mine, too.
gave a taped statement about the killing and reenacted the
crime. Mendoza had verbally abused defendant and bragged
about his prior status as a lieutenant in the Nuestra Familia
prison gang. Defendant warned he would “take [Mendoza]
out” if he continued this behavior. Mendoza persisted,
so defendant decided to kill him. Already serving a life
sentence, defendant had nothing more to lose. Defendant
“knew exactly when [he] was going to do it.”
After nighttime cell check, he covered the overhead light and
wedged paper in the cell door to prevent entry. Mendoza
seemed nervous, so defendant watched television to put him at
ease. When the opportunity arose, defendant choked his victim
for over four minutes, which he timed. Mendoza struggled, but
eventually defendant could “fe[el] the life come out of
him.” Defendant tied a sheet and a sock around his
neck, pulling it as tight as he could. He watched Mendoza for
a while to make sure he was dead. Defendant felt no remorse.
He said Mendoza “had it coming.” He wrote a
message on Mendoza's T-shirt and watched more television.
He then removed the paper from the door and alerted the
Murder of Kevin Mahoney
2, 1999, defendant and inmate Kevin Mahoney, Jr., were placed
in an exercise yard together. About two hours later, a
security alarm summoned Officer Robert Todd to the yard.
Mahoney was lying facedown in a pool of blood. He had no
pulse or respiration. There were lacerations and bruises on
his face and body, and a subdural hemorrhage at the back of
his head. Two T-shirts were tied around his neck. A nearby
wall bore blood splatters and a “happy face”
drawn in blood. Defendant's feet and legs were covered in
blood. While waiting in a holding cell, defendant told one
officer, “You guys gave me Three Strikes on some
chicken shit fight, so now I'm going to earn mine. I got
two now, and I got one more to go.”
surveillance tape captured the attack. When defendant and
Mahoney were placed in the yard, they shook hands, then
walked and sat separately for several minutes. Later they
walked together. Approximately 52 minutes after they entered
the yard, defendant attacked Mahoney without warning,
punching and kicking him repeatedly for about 30 seconds.
After the attack, Mahoney sat on the ground as defendant
paced back and forth. Defendant attacked again about 12
minutes later, striking Mahoney several times in the head
with a shoe. Mahoney remained seated; defendant continued to
pace. A third attack occurred about 27 minutes after the
second. Defendant grabbed Mahoney from behind and dragged him
into a shadowy corner. He choked his victim for over four
minutes, then picked up a T-shirt and tied it around
Mahoney's neck. Defendant resumed pacing, repeatedly
returning to the body and stomping on it.
was strangled to death. His blunt force injuries were
consistent with having suffered repeated blows.
defendant gave a taped statement and reenacted the crime. He
decided to kill Mahoney as soon as they were put in the yard
together, and put him at ease by telling him that he wanted
no trouble. Defendant judged Mahoney an “[e]asy”
mark. Defendant had planned to lunge at his victim and snap
his neck, but he was unable to grip him securely. He resorted
to punching and kicking instead. Defendant attacked Mahoney
three times “until I was able to get him in a choke
hold and drag him off into the corner. And that's where I
wanted him.” Defendant explained that he moved Mahoney
to that location because it would be more difficult for
guards to shoot him. He choked the struggling man until he
stopped breathing, then tied torn T-shirts around his neck.
Defendant could hear Mahoney “gurgling in his [own]
blood” which angered him. Intent on “caus[ing] as
much injury... as I could, ” he used his foot to
repeatedly slam Mahoney's head into the concrete.
told an investigator, “I did it so what, what can you
do to me[?] No one can do nothing to me.” As to motive,
he said: “I've [sic] snapped when... they
gave me life for that stupid ass shit... a little over a
year and a half ago. When they gave me three strikes for that
shit, I told myself, made a deal with the devil, you give me
the opportunity man to pick up each murder for each one of
those strikes we're cool. So that's... my pack
[sic] with the devil man, I already got two
that's my two strikes. I'm gonna... earn each and
every one of my strikes.” He confirmed that he would
kill again, saying “I hope there gonna [be] ten or
fifteen” more victims. According to defendant,
“My whole objective from here to now, now until I die,
is to kill and to hurt, to cause as much destruction how[
]ever, where ever, when ever. And oh as far as I'm
concerned I got no more soul and I don't give [a] fuck no
more. Nothing else matters to me.”
Battery of Correctional Officer Erik Mares
the two murders, on October 20, 1998, defendant attacked
Correctional Officer Eric Mares. As he was being handcuffed
to be taken to the shower, defendant pulled away and ran to
the middle of his cell with the handcuff attached to one
wrist. Asked what was bothering him, defendant replied,
“[T]his conversation's over and I'm taking this
to the next level.” Several officers assembled for a
cell extraction. When they directed pepper spray into the
cell, defendant rushed at the door holding his mattress to
block the spray. An officer ran in, but slipped immediately
because a slick substance covered the floor. A second officer
also slipped and fell. Officer Mares managed to enter and
grab defendant's legs. Defendant jabbed at Mares several
times with a pointed object. Another officer pried the weapon
from defendant's grasp. A sharp piece of plastic with a
cloth handle was recovered from the cell floor. A second
piece of sharpened plastic was found on defendant's bed.
Mares had puncture holes in his protective vest and cuts on
admitted that he “[j]ust got bored, ” and decided
to provoke a cell extraction. He had two weapons ready for
the confrontation and put shampoo in front of the cell door
so entering officers would lose their footing. He admitted
stabbing Officer Mares in the shoulder and trying to get
“a nice good solid straight thrust, if I was to get one
in the neck or somethin['] like that, it would cause
serious injury. [¶]... I could get an eye or
Aggravated Assault by a Life Prisoner
was convicted of two counts of assault with a deadly weapon
in 1994, and was serving a life sentence when the charged
prosecution introduced evidence of 10 incidents between 1997
and 2000 during which defendant possessed various weapons and
assaulted correctional officers or another inmate. Several of
these incidents are discussed in further detail,
post, at pages 44-50. Evidence also established
defendant was convicted of receiving stolen property in 1986,
possession of a weapon by an inmate in 1986, and second
degree burglary in 1990.
youngest of nine children sired by four different fathers,
defendant was neglected and abused by his alcoholic mother.
As an infant, he was often left crying, soiled, and hungry
after his mother passed out. His 11-year-old sister
frequently assumed his care. As defendant got older, his
mother would tie his hands and lock him in a dark closet for
extended periods. She beat him often with a broom or a belt.
She sometimes made him kneel on grains of rice, which cut his
bare knees. The family had little to eat, but his mother
punished him if he accepted food from neighbors.
cousin, Inocencio Ortega, recalled defendant's mother
beating him and locking him in the closet. Defendant
sometimes hid at Ortega's house to escape. Once
defendant's older brothers gave him glue to sniff.
was removed from his mother's care at about seven years
old. When he was 11, he lived for over a year in a group
home. Defendant had scars on his wrists that resembled
ligature marks. Slight of build, he was self-protective. He
exhibited low self-esteem and would destroy his things when
he was upset or frustrated. His fifth grade teacher described
him as bright, funny, and trustworthy. He responded well when
treated with respect, but had a temper and lacked social
skills. He would frequently push and shove other children
because he did not know how to communicate. Told his behavior
was inappropriate, he improved and became popular with his
Guilt Phase Issues
Presence of Correctional Officers During Attorney-Client
killing Kevin Mahoney, defendant vowed in an interview that
he would kill again. (See ante, at pp. 4-5.)
Concerned for defense counsel's safety, and with her
express agreement, the trial court ordered two correctional
officers to be present during all attorney-client
consultations. They were bound by the attorney-client
privilege. Defendant contends that the trial court exceeded
its jurisdiction by accepting the parties' stipulation
and purporting to extend the attorney-client privilege to the
correctional officers, who were unnecessary to the
consultation. He criticizes the court for failing to consider
alternative arrangements, such as physical restraints, that
would have accomplished the same goal without jeopardizing
confidentiality. He argues that the court-sanctioned
intrusion deprived him of his federal and state
constitutional rights to counsel, to present a defense, to be
present during all proceedings, and to fundamental due
process. He contends that the error was structural and
reversible without a showing of prejudice. We reject his
August 6, 1999, the court held an in-chambers meeting with
the prosecutor and prospective Defense Counsel Donna Tarter.
The prosecutor observed that defendant had already killed two
people and that he had reason to believe defendant would kill
again. Voicing concerns for Tarter's safety, the
prosecutor suggested that two correctional officers be
present at all attorney-client meetings and that they be
bound by the attorney-client privilege as to anything they
might overhear. Tartar agreed, and the court made the order
to the two correctional officers present. Thereafter, Tartar
met privately with defendant and was appointed by the court
to represent him. Initially, there was no discussion of the
court's order in open court in defendant's presence.
December 22, 1999, while defendant was present in open court,
the prosecutor explained the security arrangements:
“any communications that are overheard between Ms.
Tarter and Mr. Delgado during any of the court proceeding[s]
or when she is visiting him are to be encompassed within the
attorney-client privilege. Given the nature of this case,
we've personally given that privilege to officers Masters
and [Klose] so that they may be present during all
communications just for the safety of all parties.”
Defense counsel stated her agreement, and the trial court
expressly admonished the officers “that you're each
ordered not to disclose any information you might overhear in
any of those conversations to anyone, including family
members, coworkers, anyone.” Both officers affirmed
their understanding. Defendant voiced no objection.
trial, three correctional officers were stationed near
defendant, one on either side and one directly behind. The
record is not entirely clear if defendant and defense counsel
sat next to each other or if a correctional officer sat
between them. Defendant's hands were unrestrained so that
he could write notes to counsel. Defense counsel expressly
agreed to these security arrangements.
the time he was first arraigned, defendant appeared
personally in court approximately 23 times during pretrial
and trial proceedings. He never complained to the court about
the presence of officers at confidential attorney-client
meetings. On April 14 and May 2, 2000, before trial began,
the court inquired of defendant personally if there was any
reason the trial could not go forward. He stated there was
none. Defense counsel likewise answered ready for trial.
Periodically thereafter, the court inquired of defense
counsel if she had any objections or concerns. She, too,
voiced no concern about the presence of officers at
attorney-client meetings or in the courtroom.
defendant advances both statutory and constitutional
challenges to the court's order.
Attorney-Client Privilege and the Need for the Ordered
Evidence Code section 952, defendant argues that the
correctional officers' presence destroyed the
confidentiality of his attorney-client communications because
it was not reasonably necessary to further the purpose of the
legal consultation. (See Evid. Code, §
952; Zurich American Ins. Co. v.
Superior Court (2007) 155 Cal.App.4th 1485, 1503
(Zurich).) He reasons that there was no showing of a
security risk to defense counsel, and that other measures,
such as physical restraints, would have been adequate. He
contends that the parties were not authorized to extend the
attorney-client privilege by stipulation, and that the trial
court acted in excess of its jurisdiction in accepting the
claims have been forfeited. Defense counsel expressly agreed
to the officers' presence at attorney-client meetings to
ensure her safety, and both parties stipulated that the
officers would be bound by the privilege. In the trial court,
neither party challenged the necessity for the measures or
the legality of the stipulation. Under these circumstances,
defendant may not be heard to argue for the first time on
appeal that the arrangement was unnecessary and that the
privilege was destroyed. (Dowling v. Farmers Ins.
Exchange (2012) 208 Cal.App.4th 685, 696-697; see
generally Ward v. Taggart (1959) 51 Cal.2d 736,
742.) Nor may he argue that the trial court abused its
discretion in failing to devise a different solution.
(People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 389 (Bryant); People v. Montes
(2014) 58 Cal.4th 809, 843; People v. Duran (1976)
16 Cal.3d 282, 289). Similarly, defendant's jurisdiction
argument is undermined by the absence of a challenge below.
(See People v. Mower (2002) 28 Cal.4th 457, 474, fn.
6 [acts in excess of jurisdiction are subject to waiver and
argues that he should not be bound by his counsel's
stipulation, which occurred before she was formally
appointed. The timing here was immaterial. The stipulation
was made to facilitate counsel's appointment. Counsel was
appointed shortly thereafter, whereupon the stipulation
became effective for all subsequent attorney-client meetings.
There was one brief consultation in the interim. However,
even if that meeting was outside the stipulation for purposes
of our forfeiture analysis, defendant fails to identify
anything of consequence that occurred to support his claims
addition, nothing prevented counsel from revisiting the terms
of the stipulation after speaking with
defendant. Defendant counters the record does
not reveal whether or not counsel told him about the
arrangement extending the attorney-client privilege to the
attending officers. We will not presume counsel's
omission. It is defendant's burden to show that counsel
performed deficiently, by developing the record on habeas
corpus if necessary. (People v. Pope (1979) 23
Cal.3d 412, 425 (Pope), overruled on another ground
in People v. Berryman (1993) 6 Cal.4th 1048, 1081,
fn. 10; see generally People v. Fosselman (1983) 33
Cal.3d 572, 581-582.)
further argues that counsel could not be counted on to object
on his behalf to an order made solely for counsel's
benefit and contrary to his rights and interests. His only
authority involves a failure to object to an award of
attorney's fees, a circumstance that is readily
distinguishable. (Cf. People v. Viray (2005) 134
Cal.App.4th 1186, 1214.) Security risks occur with some
frequency, and do not invariably create a conflict of
interest for counsel. Defendant points to no evidence in the
record that counsel labored under an actual conflict that
adversely affected her performance. (Cuyler v.
Sullivan (1980) 446 U.S. 335, 348.) On the contrary,
counsel agreed to the arrangement only after receiving
express assurances from the prosecution that it would not
compromise the attorney-client privilege. Nor does defendant
demonstrate that the potential risk to counsel's safety
caused her to perform deficiently. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688.)
it is not accurate to say the arrangement was made solely for
counsel's benefit. Defendant was entitled to counsel. His
own statements and admitted conduct made securing willing and
capable counsel uniquely difficult. The court's action
was taken to ensure that defendant's right to counsel was
were we to overlook defendant's forfeiture and reach the
merits, there is no basis for relief. Evidence Code section
954 affords the client “a privilege to refuse to
disclose, and to prevent another from disclosing, a
confidential communication between the client and
lawyer.” (Zurich, supra, 155
Cal.App.4th at p. 1494.) Absent actual disclosure, or a
demand for disclosure, the statute is simply not implicated.
(People v. Alexander (2010) 49 Cal.4th 846, 887
(Alexander).) In Alexander, we rejected the
defendant's claim that a police detective's
interception and recording of a three-way call between the
defendant, his mother, and a defense investigator violated
the statutory attorney-client privilege. We reasoned:
“Defendant has made no showing that any witness
disclosed any information from the call during the
proceedings in violation of Evidence Code section 954.
Indeed, substantial evidence supports the trial court's
findings that the call's contents were not disclosed to
the prosecutors.” (Id. at p. 887, fn.
omitted.) Likewise here, the prosecutor did not seek to
discover or offer evidence of confidential communications.
Additionally, there is no evidence that the officers ignored
the admonition by disclosing confidential communications to
anyone. In short, nothing before us indicates the
officers' presence violated defendant's rights.
likewise reject defendant's challenge to the necessity of
the security arrangements, and the availability of less
intrusive alternatives. “In general, the ‘court
has broad power to maintain courtroom security and orderly
proceedings' [citation], and its decisions on these
matters are reviewed for abuse of discretion.”
(People v. Lomax (2010) 49 Cal.4th 530, 558
(Lomax).) Given that defendant had killed two people
with his bare hands and had vowed to kill again, the trial
court did not abuse its discretion by adopting the
parties' proposed solution to a clear security problem.
emphasize, however, that we do not suggest such measures are
necessary or appropriate in every circumstance. Ordering law
enforcement officers to be present at attorney-client
meetings is an unorthodox solution with obvious potential
pitfalls. We hold only that, under these extreme
circumstances, the court did not abuse its discretion. Trial
courts are well advised to fashion security measures tailored
to minimize the risk of intrusion on the defendant's
constitutional rights. With these observations in mind, we
turn to defendant's Sixth Amendment claim.
Deprivation of the Right to Counsel
argues that the right to confidential communications is
“absolute and essential to both the federal and state
right to representation by counsel.” (Citing In re
Rider (1920) 50 Cal.App. 797, 799.) According to
defendant, the officers involved here were members of the
prosecution team, and their presence during attorney-client
consultations destroyed confidentiality despite the
parties' stipulation to the contrary. Defendant claims
that the officers' presence had a chilling effect on his
communications with counsel and his defense preparation,
resulting in a “wholesale evisceration” of his
right to counsel under both the Sixth Amendment and article
I, section 15 of the California Constitution. These
circumstances, he argues, were “tantamount to a failure
to appoint counsel at all, ” and amounted to structural
error. The appellate record fails to support defendant's
claims of error.
explained in Alexander, supra, 49 Cal.4th
846, the federal Constitution does not protect confidential
communications between a defendant and his attorney for their
own sake. “No federal constitutional provision...
establishes an attorney-client communication privilege.
Rather, the Sixth Amendment guarantees a criminal defendant
the right to ‘assistance of counsel for his
defense.' (U.S. Const., 6th Amend.) Confidential
communication between a defendant and his lawyer is itself
not a separate ‘right' that the federal
Constitution guarantees, but rather an aspect of ensuring
fulfillment of the right to assistance of counsel.”
(Alexander, supra, 49 Cal.4th at pp.
held that interception of attorney-client communications does
not constitute a complete denial of the right to counsel.
(Alexander, supra, 49 Cal.4th at p. 888.)
Citing Weatherford v. Bursey (1977) 429 U.S. 545
(Weatherford), we explained that the Supreme Court
had “rejected a per se rule that ‘
“whenever the prosecution knowingly arranges or permits
intrusion into the attorney-client relationship the right to
counsel is sufficiently endangered to require reversal and a
new trial.” ' ” (Alexander, at p.
888, quoting Weatherford, at p. 549.) The high court
made clear that “unless the record supports ‘at
least a realistic possibility of injury to [the defendant] or
benefit to the State, there can be no Sixth Amendment
violation.' ” (Alexander, at p. 888,
quoting Weatherford, at p. 558.)
we look to Weatherford, supra, 429 U.S.
545, to evaluate defendant's Sixth Amendment claim.
Weatherford was an undercover agent for a state law
enforcement agency. He vandalized a local office of the
Selective Service with Bursey and two others. To maintain his
undercover status, Weatherford was arrested and charged along
with Bursey. Before trial, Weatherford was invited to two
meetings where Bursey and his attorney discussed defense
tactics. Weatherford did not share the details of these
meetings with anyone. However, he did testify at Bursey's
trial regarding his own undercover activities and
Bursey's act of vandalism. After Bursey was convicted, he
filed a civil rights action against Weatherford and his
supervisor under 42 United States Code section 1983, alleging
that he had been deprived of his Sixth Amendment right to the
assistance of counsel. (Weatherford, at pp.
evaluating the Sixth Amendment claim, the high court rejected
the notion that a constitutional violation can be made out
“whenever conversations with counsel are
overheard” by a government agent.
(Weatherford, supra, 429 U.S. at p. 551.)
Rather, the court held that “the constitutionality of
the conviction depends on whether the overheard conversations
have produced, directly or indirectly, any of the evidence
offered at trial.” (Id. at p. 552.) The court
identified several relevant factors, including whether: (1) a
witness testifies at trial about the confidential
conversations; (2) any of the state's evidence originated
in these conversations; (3) the conversations were
communicated to the prosecutor; or (4) the conversations were
used in any other way to the defendant's substantial
detriment. (Id. at p. 554.) The court noted that
“[n]one of these elements is present here....
Weatherford's testimony for the prosecution about the
events of March and April 1970 revealed nothing said or done
at the meetings... that he attended. None of the State's
evidence was obtained as a consequence of Weatherford's
participation in those meetings.” (Id. at p.
555, fn. omitted.) Further, the district court expressly
found that Weatherford had not communicated anything about
the meeting to either his superiors or the prosecution.
(Id. at p. 556.)
the Weatherford factors to defendant's claim, he
fails to establish a constitutional violation. The officers
who provided security were expressly admonished not to reveal
the content of any overheard conversations to
anyone. Again, there is no evidence they
disregarded the court's admonishment by disclosing
confidential communications. Nor did the officers testify
regarding any attorney-client conversation. Finally,
defendant fails to identify any evidence allegedly developed
as a result of the correctional ...