penalty phase instruction in California

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

1988J.) reversed the death judgment, ruling under dispositive California precedent that the penalty phase instruction to disregard sympathy (CALJIC No. 1.00) was constitutionally improper and prejudicial, and thus invalidat ed the sentence. (40 Cal.3d at pp. 521, 536-537, citing People v. Easley (1983) 34 Cal.3d 858, 875-880 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ], and People v. Lanphear (1984) 36 Cal.3d 163, 165-169 [ 203 Cal.Rptr. 122 , 680 P.2d 1081 ].) In separate opinions, two justices dissented from the penalty reversal.

1988J.) reversed the death judgment, ruling under dispositive California precedent that the penalty phase instruction to disregard sympathy (CALJIC No. 1.00) was constitutionally improper and prejudicial, and thus invalidat ed the sentence. (40 Cal.3d at pp. 521, 536-537, citing People v. Easley (1983) 34 Cal.3d 858, 875-880 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ], and People v. Lanphear (1984) 36 Cal.3d 163, 165-169 [ 203 Cal.Rptr. 122 , 680 P.2d 1081 ].) In separate opinions, two justices dissented from the penalty reversal.

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2003(Robison v. Maynard (10th Cir. 1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , “testimony from a victim’s relative that she did not want the jury to impose the death penalty was improper mitigating evidence and inadmissible at the penalty phase hearing”].) Citing section 190.3 and the United States Constitution, we have held that testimony from somebody “with whom defendant assertedly had a *623 significant relationship, that defendant deserves to live, is proper mitigating evidence as ‘indirect evidence of the defendant’s character.’ ” (People v. Ervin (20

2006We previously have rejected the contention that a trial court is required to reinstruct at the penalty phase on the presumption of innocence, the prosecution’s burden to prove guilt, or the meaning of reasonable doubt. 36 (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1020 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ]; People v. Benson (1990) 52 Cal.3d 754, 809-810 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ].) “As we have explained, a reasonable juror would assume that ‘generic’ instructions given at the guilt phase continue to apply at the penalty phase.” (People v. Kirkpatrick, supra, 7 Cal.4th at p. 1020.)

2006We previously have rejected the contention that a trial court is required to reinstruct at the penalty phase on the presumption of innocence, the prosecution’s burden to prove guilt, or the meaning of reasonable doubt. 36 (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1020 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ]; People v. Benson (1990) 52 Cal.3d 754, 809-810 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ].) “As we have explained, a reasonable juror would assume that ‘generic’ instructions given at the guilt phase continue to apply at the penalty phase.” (People v. Kirkpatrick, supra, 7 Cal.4th at p. 1020.)

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2024(See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1031 .) According to defendant, “It makes little sense that counsel could completely forego a penalty phase defense at the defendant’s direction, even where the defendant actively seeks a death sentence, but a capital defendant cannot 33 We observe the characterization is somewhat overbroad.

1992As defendant also concedes, it is clear that counsel "did not present available mitigating evidence because [defendant] desired to be sentenced to death" and that counsel "vehemently opposed [defendant's] decision not to present a penalty phase defense." Under these circumstances, defendant may not complain of counsel's acquiescence. ( Deere II, supra, 53 Cal.3d at p. 717; Lang, supra, 49 Cal.3d at p. 1032.) 3.

2013(See People v. Wilson (2005) 36 Cal.4th 309, 354 [ 30 Cal.Rptr.3d 513 , 114 P.3d 758 ]; People v. Sanders (1995) 11 Cal.4th 475, 562 [ 46 Cal.Rptr.2d 751 , 905 P.2d 420 ]; People v. Bonin (1988) 46 Cal.3d 659, 698 [ 250 Cal.Rptr. 687 , 758 P.2d 1217 ].) Second, as we have explained, the term “confinement in the state prison for life without possibility of parole,” which appeared here in a penalty phase instruction asking jurors to impose a sentence of “death or confinement in the state prison for life without possibility of parole,” is commonly understood by those familiar with the English lan

2013(See People v. Wilson (2005) 36 Cal.4th 309, 354 ; People v. Sanders (1995) 11 Cal.4th 475, 562 ; People v. Bonin (1988) 46 Cal.3d 659, 698 .) Second, as we have explained, the term, “confinement in the state prison for life without possibility of parole,” which appeared here in a penalty phase instruction asking jurors to impose a sentence of “death or confinement in the state prison for life without possibility of parole,” is commonly understood by those familiar with the English language, is not used in a technical sense peculiar to the law, and can readily be understood by jurors.

2013(People v. Cowan (2010) 50 Cal.4th 401, 494 [ 113 Cal.Rptr.3d 850 , 236 P.3d 1074 ]; People v. Chatman (2006) 38 Cal.4th 344, 408 [ 42 Cal.Rptr.3d 621 , 133 P.3d 534 ].) And yet “its failure to do so was harmless. ‘Absent any suggestion to the contrary, the jury would likely have assumed the reasonable doubt the court referred to at the penalty phase had the same meaning as the term had during the guilt phase.

2013(People v. Cowan (2010) 50 Cal.4th 401, 494 [ 113 Cal.Rptr.3d 850 , 236 P.3d 1074 ]; People v. Chatman (2006) 38 Cal.4th 344, 408 [ 42 Cal.Rptr.3d 621 , 133 P.3d 534 ].) And yet “its failure to do so was harmless. ‘Absent any suggestion to the contrary, the jury would likely have assumed the reasonable doubt the court referred to at the penalty phase had the same meaning as the term had during the guilt phase.

2012(People v. Sanders, supra, 11 Cal.4th 475, 550 ; People v. Kirkpatrick, supra, 7 Cal.4th 988, 1017 .) F. Failure to Instruct on Costs of Imprisonment The defense requested this penalty phase instruction: “In deciding whether death or life imprisonment without the possibility of parole is the appropriate sentence you may not consider for any reason whatsoever the deterrent or nondeterrent effect of the death penalty or the monetary cost to the state of execution or maintaining a life prisoner.” Defendant contends the trial court erred in refusing to give this instruction.

2006We previously have rejected the contention that a trial court is required to reinstruct at the penalty phase on the presumption of innocence, the prosecution’s burden to prove guilt, or the meaning of reasonable doubt. 36 (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1020 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ]; People v. Benson (1990) 52 Cal.3d 754, 809-810 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ].) “As we have explained, a reasonable juror would assume that ‘generic’ instructions given at the guilt phase continue to apply at the penalty phase.” (People v. Kirkpatrick, supra, 7 Cal.4th at p. 1020.)

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

2007The views of a crime victim ... regarding the proper punishment has no bearing on the defendant's character or record or any circumstance of the offense. ( Skipper v. South Carolina [(1986)] 476 U.S. [1,] 4, 106 S.Ct. 1669 [ 90 L.Ed.2d 1 ].) Hence, the Eighth Amendment to the United States Constitution does not compel admission of those views. ( Robison v. Maynard (10th Cir.1991) 943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 , `testimony from a victim's relative that she did not want the jury to impose the death penalty was impr

1992Failure to Clarify Factor (b) In determining the appropriate penalty, the jury was instructed to "consider ... (b) The presence or absence of criminal activity by each defendant *204 which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence." (See § 190.3, factor (b) [hereafter factor (b)].) Defendants claim several instructional errors related to this provision. (i) Alleged Robertson Error (82) Defendants first claim they are entitled to a new penalty phase hearing because the trial court failed to instruct the jury that it should

1992Failure to Clarify Factor (b) In determining the appropriate penalty, the jury was instructed to "consider ... (b) The presence or absence of criminal activity by each defendant *204 which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence." (See § 190.3, factor (b) [hereafter factor (b)].) Defendants claim several instructional errors related to this provision. (i) Alleged Robertson Error (82) Defendants first claim they are entitled to a new penalty phase hearing because the trial court failed to instruct the jury that it should

1988We recently have held that although the giving of an antisympathy instruction at the penalty phase is not error, the instruction nevertheless should not be given because in certain cases it might mislead jurors to the defendant's prejudice. ( People v. Hamilton (1988) 46 Cal.3d 123 , 152 & fn. 7 [ 249 Cal. Rptr. 320 , 756 P.2d 1348 ].) Here none was given.

1988We recently have held that although the giving of an antisympathy instruction at the penalty phase is not error, the instruction nevertheless should not be given because in certain cases it might mislead jurors to the defendant's prejudice. ( People v. Hamilton (1988) 46 Cal.3d 123 , 152 & fn. 7 [ 249 Cal. Rptr. 320 , 756 P.2d 1348 ].) Here none was given.

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988(See People v. Frank (1985) 38 Cal.3d 711, 734 [ 214 Cal. Rptr. 801 , 700 P.2d 415 ]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal. Rptr. 196 , 690 P.2d 669 ]; People v. Zimmerman (1984) 36 Cal.3d 154, 161 [ 202 Cal. Rptr. 826 , 680 P.2d 776 ]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [ 197 Cal. Rptr. 803 , 673 P.2d 680 ].) In addition, defendant argues that various prospective jurors were improperly excluded from the penalty phase in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

1988J.) reversed the death judgment, ruling under dispositive California precedent that the penalty phase instruction to disregard sympathy (CALJIC No. 1.00) was constitutionally improper and prejudicial, and thus invalidat ed the sentence. (40 Cal.3d at pp. 521, 536-537, citing People v. Easley (1983) 34 Cal.3d 858, 875-880 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ], and People v. Lanphear (1984) 36 Cal.3d 163, 165-169 [ 203 Cal.Rptr. 122 , 680 P.2d 1081 ].) In separate opinions, two justices dissented from the penalty reversal.

1988J.) reversed the death judgment, ruling under dispositive California precedent that the penalty phase instruction to disregard sympathy (CALJIC No. 1.00) was constitutionally improper and prejudicial, and thus invalidat ed the sentence. (40 Cal.3d at pp. 521, 536-537, citing People v. Easley (1983) 34 Cal.3d 858, 875-880 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ], and People v. Lanphear (1984) 36 Cal.3d 163, 165-169 [ 203 Cal.Rptr. 122 , 680 P.2d 1081 ].) In separate opinions, two justices dissented from the penalty reversal.

1985Through failure to discover or present such evidence, counsel has `create[d] the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.'" ( Id. at p. 319, quoting from Lockett v. Ohio, supra, 438 U.S. at p. 605 [ 57 L.Ed.2d at p. 990 ].) Since Frierson it has also been plain that the available mitigating evidence need not appear conclusive or even particularly persuasive.

1985Through failure to discover or present such evidence, counsel has `create[d] the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.'" ( Id. at p. 319, quoting from Lockett v. Ohio, supra, 438 U.S. at p. 605 [ 57 L.Ed.2d at p. 990 ].) Since Frierson it has also been plain that the available mitigating evidence need not appear conclusive or even particularly persuasive.

2026The jury received this instruction at the guilt phase, but received the standard instruction at the penalty phase to “[d]isregard all other instructions given to you in other phases of this trial.”8 The court’s refusal to give the no-adverse-inference instruction at the penalty phase was error, but we conclude the error was harmless beyond a reasonable doubt. “[T]he Fifth Amendment requires that a criminal trial judge must give a ‘no-adverse-inference’ jury instruction when requested by a defendant to do so.” (Carter v. Kentucky (1981) 450 U.S. 288, 300 (Carter); see People v. Daveggio & Micha

2026The jury received this instruction at the guilt phase, but received the standard instruction at the penalty phase to “[d]isregard all other instructions given to you in other phases of this trial.”8 The court’s refusal to give the no-adverse-inference instruction at the penalty phase was error, but we conclude the error was harmless beyond a reasonable doubt. “[T]he Fifth Amendment requires that a criminal trial judge must give a ‘no-adverse-inference’ jury instruction when requested by a defendant to do so.” (Carter v. Kentucky (1981) 450 U.S. 288, 300 (Carter); see People v. Daveggio & Micha

2024(See, e.g., People v. Holt (1997) 15 Cal.4th 619, 705 [counsel’s performance and tactical decisions must be viewed with recognition that he 28 represented defendant who made pretrial admission of many or most elements of charged offenses and focus[ed] [his] efforts on a penalty phase defense rather than risk losing credibility in an attempt to persuade the jury the defendant is not guilty”].) Here, the prosecution had damning evidence, including Sanchez’s messaging on Skout and texts that included detailed sexually explicit communications with a purported 14-year-old girl and plans to meet at

2022In visible shackling cases, we are often concerned with the “visual, psychological, and emotional response” a juror might have to seeing a defendant “restrained and differentiated from everyone else.” (People v. McDaniel, supra, 159 Cal.App.4th at p. 746 ; see Deck v. Missouri, supra, 544 U.S. at p. 630 .) Here, that particular concern was not present; the stun belts had no visual impact on the jurors, even in passing.