People v. Simon (1 Cal. 5th 98, 2016)

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, § 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. 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 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.

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, 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.

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 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. 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.”

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 “[sjubmit [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 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, “Til 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, heated 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 heat the gunshot wound he sustained in this area. The second expert, neurologist Dr. Kenneth Nudleman, examined Simon prior to hial. 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 conhol.

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

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. 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 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 position. 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 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 sheriffs 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 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.)

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 [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) 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) 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 items could be used in tandem to create explosives. Moreover, as in People v. Medina, supra, 115 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 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 [112 Cal.Rptr.3d 96, 234 P.3d 377].) 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 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 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 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 [108 Cal.Rptr.3d 192, 229 P.3d 101].) 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. (Redd, at p. 719.)

c. Analysis

We have not addressed whether a general probation search condition, such as the one to which Simon was subject, authorizes a warrantless, nonconsen-sual blood draw. (Cf. People v. Jones (2014) 231 Cal.App.4th 1257, 1266 [180 Cal.Rptr.3d 407] [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 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 [247 Cal.Rptr. 729, 754 P.2d 1306] [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”].)

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) from the Sterling charges (counts 6-7), 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-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 [78 Cal.Rptr.3d 272, 185 P.3d 708] (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 [177 Cal.Rptr.3d 1, 332 P.3d 1187].)

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 [99 Cal.Rptr.2d 485, 6 P.3d 150] (Mendoza).) Where, as here, the statutory requirements for joinder are met, a defendant must make a “clear showing of prejudice” to establish that the trial court abused its discretion in denying the motion. (Mendoza, 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 [89 Cal.Rptr.3d 188, 200 P.3d 816].)

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 [14 Cal.Rptr.2d 342, 841 P.2d 862].) 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 [137 Cal.Rptr.3d 59, 269 P.3d 494].)

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 [130 Cal.Rptr.3d 590, 259 P.3d 1186] (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 [204 Cal.Rptr. 700, 683 P.2d 699] (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 [172 Cal.Rptr. 86] (Coleman), a Court of Appeal case on which the parties rely, the defendant was 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 [176 Cal.Rptr.3d 27, 331 P.3d 201] (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.)

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 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 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 weak case that needed joinder to bolster the likelihood of conviction. (See People v. Balderas (1985) 41 Cal.3d 144, 173-174 [222 Cal.Rptr. 184, 711 P.2d 480].)

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.