People v. Covarrubias (1 Cal. 5th 838, 2016)

Opinion

CANTIL-SAKAUYE, C. J.

—A jury convicted defendant Daniel Sanchez Covarrubias of the first degree murders of Ramon Morales, Martha Morales, and Fernando Martinez (Pen. Code, § 187, subd. (a); counts 1 through 3), attempted murder of 11-month-old Alejandra Morales (§§ 187, 664; count 4), assault with a firearm of Alejandra Morales (§ 245, subd. (a)(2); count five), three counts of robbery (§ 212.5, subd. (a); counts 6 through 8), residential burglary (§ 459; count 9), and conspiracy to commit robbery and burglary (§ 182, subd. (a)(1); count 10). The jury further found true the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)) and allegations that the murders were committed while defendant was engaged in the commission or attempted commission of the crimes of robbery and burglary (§ 190.2, subd. (a)(17)(A), (G)).

As to counts 1 through 9, the jury found that a principal was armed with a firearm, a .38-caliber handgun and a .30-30 rifle (former § 12022, subd. (a)(1)), and an assault weapon, an AR-15 semiautomatic assault rifle (former § 12022, subd. (a)(2)). The jury found not true the allegation that defendant was personally armed with a knife (former § 12022, subd. (b)) and was unable to reach a verdict on the allegation that defendant personally used a handgun (former § 12022.5, subd. (a)).

Following the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant’s motion for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)) and sentenced him to death on the murder counts. On the remaining counts, the court imposed an aggregate determinate sentence of 32 years four months, stayed pending execution of the death sentence.

This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death because of the erroneous excusal of a prospective juror during jury selection, remand the matter for a new penalty determination and reconsideration of the question of a restitution fine under the currently applicable statute, and affirm the judgment in all other aspects.

I. Facts

A. Guilt Phase

1. Prosecution Evidence

a. Overview

On November 16, 1994, Ramon Morales (Ramon), his wife Martha Morales (Martha), and her brother Fernando Martinez (Martinez), were shot and killed during a home invasion robbery committed by defendant and his cousins Antonio Sanchez (Sanchez) and Joaquin Nunez (Nunez), and his 16-year-old nephew, Jose Luis Ramirez (Ramirez). The Moraleses’ 11-month-old daughter, Alejandra Morales (Alejandra), was shot multiple times and survived.

After the homicides, defendant fled to Mexico. In July 1995, he was captured at his home in Mexicali, Mexico, returned to the United States by bounty hunters, and eventually taken into custody in Monterey County to face charges in this case. Sanchez and Nunez were subsequently taken into custody in Mexicali.

Ramirez testified pursuant to a plea agreement with the Monterey County District Attorney’s Office that provided he would plead guilty to three counts of robbery and one count of burglary and serve a sentence of 11 years eight months in exchange for his truthful testimony.

b. Background

In early 1994, Ramon, Martha, Alejandra, and Martinez rented a house on Toro Sheet in Salinas with four other individuals. In August 1994, Sanchez moved into the house.

Ramirez frequently visited the house. According to Ramirez, Sanchez and Ramon were “good friends”; they stole cars and sold drugs. Sanchez “sold a lot of cocaine” for Ramon. At some point, Ramon and Sanchez had a dispute over drug money. Each said they wanted to kill the other. Ramon and Sanchez also quarreled over money that Ramon owed to Sanchez for repairing Ramon’s car.

Around September 1994, Sanchez went to Mexicali, Mexico. Meanwhile, the Morales family, Martinez, and Lorenzo moved into a converted garage apartment on East Market Street in Salinas. The apartment consisted of a living room and kitchen, each of which was 10 feet by 10 feet, and a bedroom/bathroom combination room.

In November 1994, defendant was living in Southern California. Around November 11, defendant arrived in his car at the home of his sister Bertha Sanchez (Bertha) in Salinas. Sanchez and Nunez accompanied defendant. They all stayed at Bertha’s house overnight. Defendant told her he intended to return to Southern California the following day. Bertha asked him to wait because she was going to drive to Mexicali in a couple of days to pick up her husband, and she wanted him to follow her in his car in case she had mechanical problems. Defendant agreed, and they planned to leave on Thursday, November 17. Defendant, Sanchez, and Nunez stayed at Bertha’s house until November 16, the day of the homicides.

On November 15, Lorenzo visited defendant, Sanchez, and Nunez at Bertha’s house. Lorenzo pulled some guns out from under a sofa. When Bertha saw the guns, she told defendant to remove them from the house. He took them to his car, and the four men left. Bertha testified the guns could have been an AR-15 and a .30-30 rifle.

c. The day of the homicides

(i) Morning hours and the drive to the trailer park

About 10:00 a.m. on November 16, 1994, Sanchez, defendant, and Nunez arrived at Ramirez’s house in defendant’s car. Lor a couple of hours, they ate, played dominoes, and drank beer. In the afternoon, defendant drove himself and Sanchez, Ramirez, and Nunez to a trailer in a nearby trailer park so that Sanchez could collect $100 on a debt owed to him.

(ii) JKD Shooting Sports store

After they left the trailer park, defendant drove to JKD Shooting Sports in Salinas. Defendant stayed in the car and the others went inside. With the $100 he had collected at the trailer park, Sanchez purchased .223-caliber ammunition and a high-capacity magazine that could fit an AR-15 semiautomatic assault rifle. The magazine could hold 40 rounds, and the box of ammunition contained 50 rounds. Sanchez also purchased ammunition for the .30-30 rifle.

(iii) Visits to the homes of Amy Arredondo, Amy Trejo, and Bertha Sanchez

After the four men left the firearms store, defendant drove them to the home of Amy Arredondo, Sanchez’s half sister, where they had dinner and drank more beer. Arredondo saw Sanchez and Nunez each had a big rifle; they said one was an “R-15” (sic) and the other was an “M-16.” Arredondo informed the four men that they had to leave because she did not want guns in her house. They departed around 5:30 p.m. and drove to the home of her daughter, Amy Trejo.

Upon arriving at Trejo’s house, Sanchez went to a car he stored there, telling Ramirez he was going to get his rifles out of the car. Trejo saw Sanchez take a box from his trunk and place it in defendant’s car trunk. She had seen “guns” in the box on a previous occasion. Trejo knew that there had been problems between Sanchez and Ramon and that Sanchez “wanted to get” Ramon, and Ramon “wanted to get” Sanchez. The four men were at Trejo’s house for about 15 minutes and then left.

After leaving Trejo’s house, the four men went to Bertha’s house and fixed a tire on her car. Afterward, they sat in defendant’s car, drinking beer with Bertha’s son, Jorge Acosta. Sometime between 7:00 and 8:00 p.m., Bertha came home. She became upset when she found the men drinking in the car. Bertha believed defendant was drunk and testified that she would not have driven in a car with him that evening. Jorge got out of the car and went inside with his mother. The four men left in defendant’s car.

(iv) Test-firing the rifles

After leaving Bertha’s house, defendant drove them into the foothills outside Salinas. On the way, Sanchez, who was in the front seat, talked about going to Ramon’s house to rob and kill him. Sanchez and Ramirez put ammunition in the high-capacity magazine Sanchez purchased at the firearms store. When defendant stopped the car, all four men exited. After defendant opened the trunk, Sanchez grabbed an AR-15 rifle, and Nunez grabbed a .30-30 rifle. The trunk contained a bag of ammunition different from that purchased at the firearms store. Everyone got back into the car, and defendant slowly drove around as Sanchez and Nunez test-fired their rifles by shooting them into the air from the rolled-down window. Ramirez test-fired the .30-30 rifle once.

Robert Falcon, who lived three miles outside of Salinas in the foothills, heard three or four gunshots nearby and called 911. Monterey County Sheriffs Deputy Greg Liskey arrived about 40 minutes later, at 8:41 p.m. but found nothing suspicious.

(v) Guillermo Morales’s home and the motel

After test-firing the rifles, defendant, Sanchez, Ramirez, and Nunez decided to go to the home of Guillermo Morales, Ramon’s brother. Sanchez said that “they also want[ed] to kill Guillermo.” On the way to Guillermo’s house, defendant said he wanted a smaller weapon and detoured to the house of one of Ramirez’s friends who was known to have guns. When they learned that the friend was not home, the four men headed to Guillermo’s house. Upon arriving there, they discovered no one was home. The four men then headed toward a hotel where they understood that a person named “Frank” was staying. Sanchez said that he wanted to kill Frank because he owed Sanchez $100 or $200. When they arrived at the hotel, no one got out of the car. They left and defendant drove to the Morales house.

(vi) The shootings

When the four men arrived at the Morales residence, defendant parked around the corner. There, defendant and Sanchez came up with a plan to go in the house, steal “stuff,” and kill whoever was inside so that there would be no witnesses to their crimes. Defendant volunteered to knock on the front door because no one in the house knew him.

The four men exited defendant’s car. Nunez had the .30-30 rifle, Sanchez had the AR-15, and defendant had a seven- or eight-inch knife. Defendant went to the door, knocked, and when no one answered, he opened the door and went inside. Defendant grabbed Martinez, who was sleeping in the living room, held him at knifepoint, and told him not to look at anyone. Sanchez, Nunez, and Ramirez followed defendant inside the house. Sanchez pointed his rifle at Martinez.

Defendant and Sanchez stayed in the living room with Martinez; Ramirez and Nunez started to search the bedroom for items to steal. Sanchez instructed Ramirez to take whatever he could from the house. Ramirez transported various items, including a video cassette recorder (VCR) and stereo equipment, to defendant’s car. Ramirez also took a neck chain, a .32-caliber handgun that Sanchez handed him, and a hair oil product. Ramirez made three trips to the car. Defendant searched boxes that were near a wall.

About 9:00 p.m., on his last trip taking items to defendant’s car, Ramirez saw Ramon drive up. Ramirez went inside and told Sanchez that Ramon and Martha were coming. Nunez hid behind the front door. Defendant took Martinez into the bedroom. Sanchez and Ramirez hid in the kitchen behind the refrigerator. When Martha entered the house, Nunez pointed his rifle at her and forced her into the bedroom. Martha was carrying Alejandra. When Ramon entered, Sanchez pointed his AR-15 rifle at him, ordered him to kneel down, and demanded Ramon tell him where the drugs, money, and guns were. At some point, defendant tried to place a blindfold on Ramon. Ramon told Sanchez that he had $5,000 in the bank and that his brother had the drugs. Sanchez kept his rifle pointed at Ramon while defendant searched for guns. Defendant then found two handguns in a box near the kitchen. Ramirez testified that he thought one of the guns was a .38-caliber handgun, and the other he could not remember. He thought defendant used his left hand to put the gun Ramirez believed to be a .38-caliber handgun in Sanchez’s jacket pocket. Defendant held the other gun in his right hand.

As Ramon was begging for his life in the living room, Ramirez heard what sounded like a .30-30 gunshot from the bedroom. Ramirez fled. “Fairly rapid” gunfire erupted inside the house. Della Longoria, a neighbor, heard the gunfire and saw gun smoke come through the opened front door of the Morales house. Longoria identified the first person she saw run from the house to be defendant and believed he was carrying a rifle.

Meanwhile, Ramirez ran to the next block. When he looked back at the Morales house, he saw defendant, Sanchez, and Nunez, running to defendant’s car. Defendant sped away with the car’s headlights off.

(vii) Events immediately following the homicides

Around 9:00 p.m., police responded to the scene and discovered Ramon’s body on the living room floor. Martinez’s body was found near the doorway leading to the bedroom and bathroom, and Martha’s body was found in the bedroom at the foot of the bed. Alejandra was lying near Martha’s knees, crying and covered in blood.

Ramirez ran to his cousin Amy Trejo’s house. He was dressed in dark clothing, wore a knit cap, and had in his possession the neck chain, the .32-caliber handgun, and the hair oil product that he took from the Morales’s house. Ramirez gave these items to Arturo Perez and left.

Later that night, defendant went to the home of his sister Elvia Covarrubias and asked for gas money. He left immediately after he was given $50. Defendant fled to Mexico.

The next day, Ramirez returned to Trejo’s house with a friend, Daniel Barba. Ramirez gave the handgun, which was inoperable, to Daniel. Perez helped Ramirez sell the neck chain at a pawnshop for $60.

d. Investigation

Salinas police investigators found the following on the bed in the bedroom: a box of .38-caliber ammunition (full metal jacket rounds); a box of .380-caliber ammunition (full metal jacket rounds); a box of baby diapers; and a cashbox. At least four cartridges were missing from the box of .38-caliber ammunition, and five were missing from the box of .380-caliber ammunition. Defendant’s fingerprints were on both boxes of ammunition and the box of diapers. Ramirez’s fingerprints were on the cashbox.

Investigators found the following additional items during their search of the crime scene: two boxes in the living room, one containing a .22-caliber intact bullet and a spent casing and the other containing a .380 semiautomatic pistol; a trash can in the kitchen containing a vinyl bag full of .22-caliber ammunition; a box of .32-caliber ammunition on top of the refrigerator; a box of .22-caliber ammunition, a Taser gun, and a small amount of hashish on the bedroom floor; and a triple-beam scale in the chicken coop outside the house. During a separate search of the residence conducted more than a month after the homicides, police found two .380-caliber pistols in the bedroom and a .22-caliber rifle in the chicken coop.

Alejandra was treated at a local hospital emergency room. She suffered a .38-caliber through-and-through gunshot wound; the bullet had entered her left shoulder area and exited through her back. The infant also suffered four nonfatal gunshot wounds to her leg that were caused by a single bullet.

Personnel processing the victims’ bodies at the coroner’s office collected $204.37 from Ramon’s pocket, $123 from Martinez’s pocket, and $51 from Martha’s purse.

e. Autopsies

Dr. John Hain performed the autopsy on each victim. Martinez was fatally shot in the back of the head, execution style and at point-blank range. Martinez also suffered a .38-caliber gunshot wound to his back, which probably occurred postmortem.

Ramon died from multiple gunshot wounds. He suffered “massive” wounds to the face “in that there was a 4-by-5 inch area of the face that was just torn apart.” Three enhance wounds to Ramon’s lower chest “virtually tore the heart to pieces.” Seven .223-caliber bullets were recovered from Ramon’s body. A single .38-caliber bullet was recovered from the back of his head.

Martha suffered two fatal “devastating” gunshots to her forehead that left “her face torn away by the blast of the gunshots and in front of the skull.” The bullets that caused the head wounds, a .38-caliber bullet and a .30-caliber hollow-point bullet, traveled to and became lodged in Martha’s right shoulder and armpit, respectively, and were recovered from those areas. A .223-caliber bullet was recovered from her left side. Martha probably died within minutes of being shot.

f. Ballistics evidence

Criminalist Larry Waller collected eighteen .223-caliber shell casings from the crime scene. Four casings were located outside the front door of the residence, but most of the remaining casings were discovered in the living room and kitchen area. Waller also found four .30-30 casings—one in the living room, one at the junction of the living room and the kitchen, and two next to Martinez’s body. Investigators collected a .30-caliber bullet that dislodged from between Martinez’s eyes when his body was rolled over.

Senior Criminalist Scott Armstrong analyzed 16 of the .223-caliber casings and concluded that all but one were fired from the same weapon, most likely a semiautomatic rifle like an AR-15. He could not determine whether the remaining casing was fired from the same weapon. Armstrong examined the four .30-30 casings and concluded that all four were fired from the same rifle. Armstrong also examined a .30-caliber bullet recovered from Martinez’s body and one recovered from Martha’s body and determined that both were consistent with having been fired from a Martin Lever Action .30-30 rifle.

Five expended .38-caliber bullets were recovered; two from under the bed and one from each of the three homicide victims. Armstrong concluded that the three bullets found in the homicide victims and one of the bullets found under the bed were fired from the same weapon. He could not determine whether the second bullet found under the bed was fired from that weapon. The bullets found in the homicide victims were “full metal jacket round nose type.” Armstrong compared tool marks on a bullet from one of the cartridges in the .38-caliber ammunition box found in the bedroom with marks on the .38-caliber bullets recovered from the homicide victims. Based on his comparisons, the expert concluded all four bullets “were manufactured on the same tool, at the same factory, at about the same time.”

Criminalist Julie Doerr examined the jacket and “onesie” sleeper that Alejandra was wearing when she was shot, as well as one of the .38-caliber expended bullets found under the bed. Holes in the upper left shoulder and mid-back area of the sleeper corresponded with holes in the jacket. The nose of the bullet contained a tuft of green fibers that were consistent with the fibers on Alejandra’s jacket. Doerr opined that it was “highly likely” the bullet passed through the jacket.

g. Defendant’s videotaped statement

As noted earlier, after the homicides, defendant fled to Mexico. Meanwhile, Lorenzo Nunez was arrested and prosecuted separately for his involvement in the homicides. Crecencio Padilla, an investigator with the Office of the Monterey County Public Defender who represented Lorenzo Nunez in his state criminal proceedings, contacted Lorenzo’s sister, Yolanda Nunez, and asked her to contact defendant and ask for his assistance in defending Lorenzo. Subsequently, on July 20, 1995, defendant’s sister, Bertha, provided a videotape to investigator Padilla.

On the videotape, defendant stated that he was making a statement “in the hopes it will be of some use to Lorenzo Nunez Martinez because on the 16th day of November of 1994 we committed a—a crime but one in which Lorenzo Nunez did not—did not participate at all . . . .” Defendant proceeded to admit the following: He was at the Morales house with Sanchez, Joaquin Nunez, and Ramirez when the victims were shot, but went there only to help Sanchez “pick up some things that were left in the house.” Defendant had weapons in his car that Lorenzo gave him the day before the homicides. Defendant intended to sell the weapons in Mexico and, with the proceeds, bring Lorenzo’s wife and daughter to Salinas. The weapons were brought into the house because Sanchez told them Ramon had threatened to kill him. Once inside, Sanchez asked Martinez “about some things that—that he had left there,” but Martinez “said that he didn’t know about that.” Sanchez “started to—to with his eyes, to look around and . . . didn’t find them.” When Ramon was lying on the floor, he pulled out a weapon, and “out of fear, we all shot. We fired the weapons that we had ... we shot really like crazy.”

Defendant was subsequently brought back to the United States by bounty hunters. On September 29, 1995, defendant was arraigned in Monterey County Superior Court.

2. Defense Evidence

Defendant did not testify. His attorney conceded that on the night of the homicides, defendant went to the Morales residence with Sanchez, Ramirez, and Nunez and that Sanchez and Nunez brought weapons. Defendant’s defense was that he went to the Morales house simply to obtain property belonging to Sanchez, that Ramirez was untruthful, and that absent Ramirez’s testimony, there was no evidence defendant was aware of any plan to burglarize, rob, or murder the Morales family.

Trial counsel elicited from Ramirez on cross-examination that he lied to police when he told them (1) that defendant gave him one of the handguns he found near the kitchen and (2) that he (Ramirez) was looking through the window when he saw defendant with a handgun in his hand. Ramirez testified that he was in the entryway when he saw defendant with a handgun, and that he never saw defendant load a weapon. Ramirez also testified that on the day of the homicides, the four men bought four 12-packs of beer, and each drank about six beers.

Jorge Acosta, Bertha’s son, testified that on the evening of the homicides, he saw defendant, who was his uncle, and the other men drinking in defendant’s car parked outside his mother’s house. Acosta was worried about how much defendant was drinking and “concerned ... his uncle . . . [would] be getting into some trouble or crashing or getting stopped.”

Acosta also testified that a few days before the homicides, the four men came to visit. Acosta saw an “assault weapon” and a “rifle” but did not see defendant handle either weapon.

Salinas Police Detective Joseph Gunter interviewed Ramirez on November 18, 1994. District attorney investigator Richard Moore interviewed Ramirez on October 31, 1995. Ramirez never mentioned to either Gunter or Moore that on the day of the homicides, the four men went to a friend’s house to get defendant a weapon. Nor did Ramirez mention that they went to Guillermo Morales’s house to kill him.

B. Penalty Phase

1. Prosecution Evidence

a. Circumstances of the crimes

The prosecution presented testimony of an expert in crime scene reconstruction who examined the crime scene photographs, police and autopsy reports, and evidence collected at the scene. The expert testified concerning the position of each victim’s body when shot, the nature of each victim’s gunshot wounds, and the location of the shooters when the victims were shot.

b. Victim impact evidence

The prosecution presented victim impact testimony from Martha’s and Martinez’s mother and father, Josephina Vasquez and Juan Martinez Gonzalez; their sister, Patricia Martinez Becerra; and Ramon’s mother, Magdalena Diaz. Each testified concerning their loss, how the homicides had affected their lives, and the additional emotional pain caused by having closed caskets at the funerals because of the extensive injuries each victim suffered.

Alejandra was almost five years old at the time of trial. She had been diagnosed with a genetic disease that requires her to live in a special medical care foster home. Her disease is unrelated to the gunshot wounds she suffered. Martha’s parents, who lived in Mexico, had been unsuccessful in their efforts to obtain custody of Alejandra.

c. Evidence submitted in aggravation under section 190.3, factor (b)

The prosecution presented evidence of multiple other acts of violence or threats of violence by defendant while in custody at the Monterey County jail prior to trial. (§ 190.3, factor (b).) On June 30, 1996, sheriff deputies found a dismantled razor blade, two pieces of wire, three buttons, and a string hidden in defendant’s jail-issued deodorant stick. Deputies also found a second dismantled razor blade and a “cut open” toothbrush lodged under defendant’s bed frame. On July 13, 1996, deputies found a dismantled razor in a brown paper bag in defendant’s cell. The items found could be used as weapons or to fashion a weapon from some of the other items.

On August 18, 1996, defendant repeatedly punched a sheriff deputy in the back of his head and neck in an attempt to escape from the jail facility. When deputies subsequently apprehended defendant, he was in possession of a blue watch cap and a pencil, and had a piece of paper in his pocket, which contained writing in Spanish or code.

2. Defense Evidence

Defendant’s brother-in-law, Robert Reynoso, his brother, Luis Covarrubias, his sisters, Bertha Sanchez and Elvia Covarrubias, and his friend Moisés Diaz all testified that defendant was a good brother and caring and generous person and friend. Defendant was respectful to people and hard working. In 1989, defendant volunteered his time and truck to transport food and clothing to survivors of the Loma Prieta earthquake. Defendant helped Reynoso for a year when he was regularly on a dialysis machine.

Defendant was married and had four children ranging in ages from six to 11 years old. He was very loving toward his family and friendly with all his neighbors. Defendant’s relatives and friends intended to continue to support and visit defendant in prison if he were sentenced to life without possibility of parole.

Defendant presented the sworn statements of four individuals who were his neighbors in Mexico (Juan Manuel Avila Sanchez, Jose Guadalupe Espinoza Flores, Martina Dominguez de Castro, and Maria Guadalupe Castro de Gonzalez). The statements provided positive character testimony that showed defendant to be a caring, generous person who was concerned about his family and was friendly, helpful, and respectful to other people.

Dr. Thomas Reidy, a forensic psychologist, was asked to evaluate defendant with regard to his “life history and adverse factors and positive life factors that . . . shaped his life,” but specifically excluding information about the crimes and homicides. Defendant grew up in poverty in Mexico. His father was intolerant and abandoned the family when defendant was a small child. Defendant was raised by his mother, who was absent for periods of up to six months at a time when she was working in the United States or in the fields. When defendant’s mother was absent, his sister and brother cared for him. When defendant was seven or eight years old, his older brother, who was very close to him, was stabbed to death.

Defendant began to work at age 10 washing cars. He started abusing alcohol around age 14. Defendant performed well in school and went on to secondary education. His mother committed suicide in his early adulthood. He suffered two convictions for driving under the influence and one for driving on a suspended license. For a couple of years, he would give rides to family members and friends from Mexico to the United States, but he did not profit financially from this work. Dr. Reidy explained that defendant “expressed a great remorse regarding what happened in this case,” and that when defendant talked about this case, he kept his head down, “looked very sad,” and “talked about being sad.” Dr. Reidy concluded that defendant did not have an antisocial personality disorder and was not a psychopath.

II. Discussion

A. Jury Selection Issues

1. Excusáis for Cause Based Solely on Written Questionnaires

Defendant contends the trial court erroneously excused for cause five prospective jurors (Prospective Jurors Nos. 11, 12, 16, 39, and 50) based solely on their written questionnaire answers concerning their personal views on capital punishment, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (See Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt); People v. Riccardi (2012) 54 Cal.4th 758, 778-783 [144 Cal.Rptr.3d 84, 281 P.3d 1] {Riccardi).) We conclude the trial court erred in excusing Prospective Juror No. 16 for cause based solely on his questionnaire responses. Although this error did not result in the seating of an unqualified juror, it requires automatic reversal of defendant’s death sentence under existing United States Supreme Court precedent. (Gray v. Mississippi (1987) 481 U.S. 648, 659-667 [95 L.Ed.2d 622, 107 S.Ct. 2045] (opn. of the court) (Gray); id. at pp. 667-668 (plur. opn.).) In light of our conclusion, we need not decide whether the trial court erred in dismissing any of the remaining prospective jurors.

a. The written questionnaire

The prospective jurors completed a 21-page questionnaire. Questions Nos. 50 to 58 sought the prospective jurors’ general views on the death penalty. Question No. 59 explained the difference between the guilt trial and penalty trial, described the meaning of “special circumstance,” and defined aggravating and mitigating circumstances. The question then explained that “[t]he weighing of these factors is not quantitative, but qualitative, [and] in order to fix the penalty of death, the jury must be persuaded that the aggravating factors are so substantial in comparison with the mitigating factors that death is warranted instead of life imprisonment without parole.” The question continued in six subparts: ‘“(A) Assume for the sake of this question only that, in the guilt phase, the prosecution has proved first degree murder beyond a reasonable doubt and you believe the defendant is guilty of first degree murder. Would you, because of any views that you may have concerning capital punishment, refuse to find the defendant guilty of first degree murder, even though you personally believed the defendant to be guilt [sic] of first degree murder, just to prevent the penalty phase from taking place?

‘“(B) Assume for the sake of this question only that, in the guilt phase, the prosecution has proven one or more special circumstances to be true beyond a reasonable doubt, and you personally believe the special circumstance(s) to be true. Would you, because of any views that you may have concerning capital punishment, refuse to find the special circumstance(s) true, even though you personally believed it (them) to be true, just to prevent the penalty phase from taking place?

‘“(C) Assume for the sake of this question only that the jury has found the defendant guilty of first degree murder and has found one or more special circumstances to be true and that you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty of life imprisonment without the possibility of parole, without considering any of the evidence of any of the aggravating and mitigating factors . . . regarding the facts of the crime and the background and character of the defendant?

‘“(D) Assume for the sake of this question only that the jury has found the defendant guilty of first degree murder and has found one or more of the special circumstances true and that you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of life imprisonment without the possibility of parole and automatically vote for a penalty of death, without considering any of the evidence, or any of the aggravating and mitigating factors . . . regarding the facts of the crime and the background and character of the defendant?

‘“(E) If your answer to either question C) or question D) was yes, would you change your answer if you are instructed and ordered by the court that you must consider and weigh the evidence and the above-mentioned aggravating and mitigating factors regarding the facts of the crime and the background and character of the defendant, before voting on the issue of penalty?

“(F) Could you set aside your own personal feelings regarding what the law ought to be and follow the law as the court explains it to you?”

Question No. 61 explained that there would be a “wide spectrum of possible evidence” that the jury would be asked to consider in any penalty phase and that in any such phase of trial, the jurors would determine the weight of the evidence presented. The question continued: “Considering the above, assume a defendant was convicted of multiple premeditated murder during the course of a robbery and burglary as special circumstances [.] [Wjhich of the following would you do? [¶] (a) No matter what the evidence was, always vote for the death penalty. [¶]_(b) Always vote for life without the possibility of parole. [¶]_(c) I would not automatically vote for either life without possibility of parole or the death penalty. I would consider all the evidence and vote my conscience.”

Question No. 62 inquired as follows: “If this case has a penalty phase, you will be instructed that you may consider factors in the defendant’s background, such as his upbringing, emotional difficulties and possible substance abuse in deciding whether to impose the death penalty or life in prison without the possibility of parole. [¶] A. Do you feel that those factors would be helpful to you in reaching a decision as to whether the death penalty or life in prison without the possibility of parole is the appropriate sentence? [¶] B. Would you reject any of those factors automatically in deciding on a sentence?”

Question No. 63 asked the prospective juror if she or he would feel precluded from imposing the death penalty upon learning the defendant had children.

After the prospective jurors completed their written questionnaires, the court and counsel discussed the qualifications of prospective jurors whom the court had preliminarily identified as potentially excusable based solely on their written questionnaire responses. During this process, the trial court excused Prospective Jurors Nos. 11, 12, 16, 39, and 50 for cause under Witt.

b. Legal principles

“Under decisions of the United States Supreme Court, prospective jurors who express personal opposition to the death penalty are not automatically subject to excusal for cause as long as ‘they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.’ (Lockhart v. McCree (1986) 476 U.S. 162, 176 [90 L.Ed.2d 137, 106 S.Ct. 1758]; see Witherspoon v. Illinois (1968) 391 U.S. 510, 522 [20 L.Ed.2d 776, 88 S.Ct. 1770] (Witherspoon).) To determine if a prospective juror is excusable for cause without compromising a defendant’s constitutional rights, we inquire whether the prospective juror’s views on the death penalty ‘would “prevent or substantially impair the performance” ’ of the juror’s duties in accordance with the court’s instructions and his or her oath.” (Riccardi, supra, 54 Cal.4th at p. 778.) “ ‘It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.’ [Citation.]” (People v. Leon (2015) 61 Cal.4th 569, 591-592 [189 Cal.Rptr.3d 703, 352 P.3d 289] (Leon); see People v. Stewart (2004) 33 Cal.4th 425, 445 et seq. [15 Cal.Rptr.3d 656, 93 P.3d 271] (Stewart).)

“Before granting a challenge for cause, the ‘court must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views would “ ‘prevent or substantially impair’ ” ’ performance as a capital juror. [Citation.] Trial courts must therefore make ‘a conscientious attempt to determine a prospective juror’s views regarding capital punishment to ensure that any juror excused from jury service meets the constitutional standard.’ ” (Leon, supra, 61 Cal.4th at p. 592, some italics omitted.) “Prospective jurors may be dismissed based on written questionnaire responses alone if the responses leave no doubt that their views on capital punishment would prevent or substantially impair the performance of their duties in accordance with the court’s instructions and the jurors’ oath. [Citation.] By contrast, if a juror’s questionnaire responses are inconsistent and do not clearly reveal an inability to serve, the court may not grant a cause challenge without further questioning to clarify the juror’s views.” (Ibid.) On appeal, we independently review a trial court’s for cause dismissals that were based solely on written questionnaire responses. (Riccardi, supra, 54 Cal.4th at p. 779.)

c. Discussion

Defendant contends Prospective Juror No. 16 was improperly excused for cause under Witt based solely on his written questionnaire responses, because he did not unequivocally state that he would always vote against the death penalty in every case regardless of the evidenced presented. Based on our independent review of the record, we agree that the trial court erred by excusing the prospective juror for cause under Witt based solely on his written questionnaire responses.

Prospective Juror No. 16 was a correctional officer with the Department of Corrections and Rehabilitation. In response to question No. 50, a multipart question that asked the prospective juror about his death penalty views in general, Prospective Juror No. 16 indicated that he “strongly” opposed the death penalty and wrote, “I believe that the death penalty should be abolished as there is no assurance that the state may not be killing an innocent person.” When asked in another part of the same question to explain his position on capital punishment, he wrote, “In addition to the above I feel the state does not have the right to take a fife in revenge for the crime the person commits. I also feel it is not a deterrent to crime.” In response to question No. 58, which asked the prospective juror about the frequency with which capital punishment is used, Prospective Juror No. 16 wrote that he believed the death penalty was imposed “too often” and “opposed it completely.”

As set forth above, question No. 59 parts (C), (D), (E), and (F) were the questions most directly relevant to the Will inquiry. Similar to the questions we reviewed in Riccardi, these questions called for responses that could adequately inform the trial court whether a prospective juror was substantially impaired within the meaning of Witt.

Regarding question No. 59(C), Prospective Juror No. 16 stated that if the case proceeded to the penalty phase, he would “probably” refuse to vote for the death penalty and automatically vote for fife in prison without possibility of parole regardless of the evidence. He wrote in response to question No. 59(E) that he “possibly” would change his answer to question No. 59(C) if the court instructed and ordered him to consider the aggravating and mitigating evidence before voting on the appropriate penalty. When asked in question No. 59(F) whether he could set aside his personal feelings about the law and follow the court’s instructions on the law, Prospective Juror No. 16 wrote, “Yes—most probably.”

At the hearing on the challenge for cause, the trial court noted that “[Prospective Juror] No. 16 states that he is a CTF captain; strongly opposes the death penalty; probably would disregard the evidence and vote for life without possibility of parole under any circumstances, although the other questions were sufficiently within the ballpark of rationality and responsibility.” The prosecutor challenged the prospective juror for cause based on the prospective juror’s stated feelings that the death penalty should be abolished and the state does not have a right to take a life and that the prospective juror did not commit to follow the law in deciding this case. Defendant’s counsel argued the prospective juror’s written responses were equivocal and that oral, in-person voir dire was warranted. The trial court dismissed Prospective Juror No. 16 for cause.

Based on our independent review of the record, Prospective Juror No. 16’s questionnaire responses to the crucial Witt inquiries were ambiguous, failed to provide an adequate basis to support his excusal for cause, and called for the trial court to conduct oral voir dire. Granted, Prospective Juror No. 16’s responses indicated intense personal opposition to the death penalty, e.g., “the state does not have the right to take a life in revenge for the crime the person commits,” and “I oppose it completely.” Crucially, however, his written answers to the Witt inquiries under question No. 59 were equivocal and suggested his death penalty views were not unalterable.

Prospective Juror No. 16 wrote in response to question No. 59(C) that he would “probably” automatically refuse to vote for the death penalty and automatically vote for life in prison without possibility of parole regardless of the evidence, but “possibly” would change that answer if the court instructed him to consider the aggravating and mitigating evidence before deciding penalty. Similarly, in response to question No. 59(F), he wrote that he “Yes—most probably” could set aside his personal feelings about the law and follow the court’s instructions. Nothing in the foregoing written responses obviated the need for oral voir dire or supported a finding that Prospective Juror No. 16’s opposition to the death penalty was so strong that he was unwilling to set aside his personal views and perform the duties of a capital juror in accordance with the law. Indeed, elsewhere in his questionnaire, Prospective Juror No. 16 suggested that he would consider the evidence and was open to voting for either penalty. He wrote that consideration of a defendant’s background would be helpful in deciding penalty, that he would not “automatically” reject such evidence in deciding penalty, and that the sole fact defendant may have children “would [not] preclude [him] personally from imposing the penalty of death.”

The trial court had an obligation to resolve the uncertainties in Prospective Juror No. 16’s written responses and orally examine him in person to the extent necessary to permit a reliable determination of whether he was disqualified under Will. (Leon, supra, 61 Cal.4th at p. 592; Riccardi, supra, 54 Cal.4th at p. 782; Stewart, supra, 33 Cal.4th at p. 445.) This case is not like People v. Russell (2010) 50 Cal.4th 1228, 1263 [117 Cal.Rptr.3d 615, 242 P.3d 68], in which we affirmed a for cause dismissal based on questionnaire responses alone of a prospective juror who stated that he “would ‘probably’ follow the law as the judge instructed” but “was ‘not absolutely certain [he] would.’ ” The prospective juror in that case “clarified, T am strongly opposed to the death penalty,’ and stated he ‘simply would not vote for’ death, and that no matter the evidence, he would ‘ALWAYS vote for life without the possibility of parole.’ ” (Ibid.) We held that the trial court properly excused the prospective juror because his written questionnaire responses were clear, unequivocal, internally consistent, and demonstrated that he was “ ‘unwilling to temporarily set aside [his] own beliefs and follow the law.’ ” (Id. at p. 1262.) Here, in contrast, Prospective Juror No. 16’s questionnaire answers were ambiguous and did not clearly demonstrate that his death penalty views would prevent or substantially impair the performance of his duties as a capital juror. Therefore, we conclude the trial court erred in excusing the prospective juror based solely on his questionnaire answers and without follow-up questioning on voir dire. (Witt, supra, 469 U.S. at p. 424; Leon, supra, 61 Cal.4th at p. 592.)

“The general rule is that, absent a showing of prejudice, an erroneous excusal of a prospective juror for cause does not mandate the reversal of judgment. This rule is based on the principle that a ‘[defendant has a right to jurors who are qualified and competent, not to any particular juror.’ (People v. Holt (1997) 15 Cal.4th 619, 656 [63 Cal.Rptr.2d 782, 937 P.2d 213].) But . . . under existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person’s views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant’s penalty determination. (Gray, supra, 481 U.S. at pp. 659-667 (opn. of the court); id., 481 U.S. at pp. 667-668 (plur. opn. of Blackmun, J.); id., 481 U.S. at p. 672 (cone. opn. of Powell, J.).)” (Riccardi, supra, 54 Cal.4th at p. 783.)

Accordingly, we are compelled by Gray to reverse defendant’s penalty phase verdict, and we need not resolve defendant’s remaining challenges to the excusáis for cause of Prospective Jurors Nos. 11, 12, 39, and 50 based solely on their questionnaire responses.

2. Adequacy of the Written Questionnaire

Citing Witt, supra, 469 U.S. at page 424, defendant contends that by not specifically asking the prospective jurors whether they “could consider voting for the death penalty if they were under an oath to do so,” the questionnaire failed to provide an adequate basis for excusing a prospective juror for cause based solely on questionnaire responses. Because we already have concluded the trial court’s error in dismissing Prospective Juror No. 16 for cause based solely on his questionnaire responses requires reversal of the penalty phase judgment, we decline to address this claim.

3. Jury Selection Method

Before jury selection commenced, the trial court explained that it would use a variation of the “jury box” method of jury selection in which the prospective jurors would be called and questioned in groups of 18 and the parties would exercise both for cause and peremptory challenges before a new group was called. Defense counsel objected to the requirement that he exercise peremptory challenges as each group was questioned, claiming he could not effectively exercise peremptory challenges until all the groups had been passed for cause. In overruling the objection, the trial court noted, “I think you’re confusing your ability to pick a jury of people who can give you a fair trial with your desire to hand pick a jury that is going to do what you want it to do.”

On appeal, defendant contends that the jury selection method used at his trial impaired trial counsel’s ability to effectively exercise peremptory challenges, in violation of his federal constitutional right to a fair and impartial jury, and requires reversal of his death judgment. Defendant’s claim is foreclosed by our decision in Avila, supra, 38 Cal.4th at page 538. There, we explained that “[a]lthough knowledge of the composition of the entire panel can be relevant to the exercise of a peremptory challenge against an individual juror, the fact that a particular procedure used might have made exercising initial peremptory challenges less informed does not in itself require reversal. [Citation.] [¶] A court commits reversible error if its procedures deny a party’s right of peremptory challenge.” (Ibid., italics added; see Pointer v. United States (1894) 151 U.S. 396, 412 [38 L.Ed. 208, 14 S.Ct. 410] [“The right of peremptory challenge ... is not of itself a right to select, but a right to reject, jurors” (italics added)].) The trial court did not prevent defendant from exercising his allotted peremptory challenges. Therefore, defendant cannot demonstrate a violation of his federal constitutional rights. (Avila, at p. 538.)

4. Trial Court’s Refusal To Conduct Individual Voir Dire

Defendant contends the trial court erred by refusing to conduct sequestered individual death qualification voir dire. The claim is without merit.

In response to a pretrial writ filed by defendant in this case, the Court of Appeal held in essence, that under Code of Civil Procedure section 223, a trial court has discretion to conduct sequestered individual death qualification of prospective jurors, based on its determination concerning whether group voir dire is “ ‘practicable.’ ” (Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1180 [71 Cal.Rptr.2d 91].) In People v. Waidla (2000) 22 Cal.4th 690, 713 [94 Cal.Rptr.2d 396, 996 P.2d 46], we endorsed this ruling and do so again here. Defendant makes no persuasive case for us to reconsider the issue.

5. Asserted Unconstitutionality of Death Qualification of the Jury

Defendant contends that the death qualification process in jury selection is unconstitutional under the federal and state Constitutions. As a threshold matter, his failure to make a timely and specific objection on this ground in the trial court forfeited the issue on appeal. (See People v. Jennings (2010) 50 Cal.4th 616, 687-688 [114 Cal.Rptr.3d 133, 237 P.3d 474].) In any event, the high court and this court have rejected this claim. (Lockhart v. McCree, supra, 476 U.S. at pp. 176-177; People v. Lenart (2004) 32 Cal.4th 1107, 1120 [12 Cal.Rptr.3d 592, 88 P.3d 498]; see People v. Tully (2012) 54 Cal.4th 952, 1066 [145 Cal.Rptr.3d 146, 282 P.3d 173].) Defendant offers no persuasive argument to revisit the issue as to our state Constitution, and we decline to do so.

B. Guilt Phase Issues

1. Use of Stun Belt

Over defendant’s objections, the trial court ordered that he be restrained with a REACT (remote electronically activated control technology) stun belt during trial. On appeal, defendant contends the trial court abused its discretion in ordering him to wear the stun belt and thereby violated his state and federal constitutional rights. We conclude the contention is without merit.

a. Background

Before jury selection began, a deputy sheriff submitted a memorandum to the court suggesting that defendant wear a REACT belt during the trial. The deputy also provided a packet of materials that included defendant’s numerous disciplinary reports from the jail and explanatory material from the manufacturer concerning use of the REACT belt system.

The disciplinary reports revealed that on December 13, 1995, defendant yelled at prosecution witness Jose Luis Ramirez in the booking area. On February 11, 1996, defendant became argumentative and hostile, and kicked and banged on his cell door when he was told that he could not be moved to another cell. On January 14, 1997, defendant was discovered acting suspiciously near a dayroom door, and was found in possession of a straightened paper clip. Defendant admitted that he was trying to pick the lock of the dayroom door. The reports also discussed disciplinary incidents that occurred on three additional dates in 1996, involving defendant’s possession of prisoner-made weapons (June 30 and July 13) and an assault on a deputy during an escape attempt (Aug. 18).

Counsel objected to any requirement that defendant wear a REACT belt on the ground that defendant had not posed any security risk in his prior court appearances. Counsel also expressed concern that there might be an accidental activation of the stun belt or activation triggered by nonthreatening slight or sudden movement.

The trial court ordered use of the REACT belt because “the indications of previous actions that. . . defendant has taken raise a serious concern as to the viability of having him completely unrestrained in the courtroom.” The trial court stated: “With respect to previous appearances in court and lack of problems, [defendant] has always been shackled, hand and foot, when he’s been brought to court. The problem we face with a jury format is that, in order to avoid any untoward appearance of dangerousness or likelihood of fleeing, we will not be having [defendant] restrained. He will be dressed in civilian clothes, and we will make every effort to remove any aura of a custody from his appearance in court. It seems to me that the use of the belt is [a] legitimate and reasonable insurance policy against him taking action towards escape or towards assaulting anybody or anything of that nature. [¶] I will specifically instruct the bailiff that the—and of course the bailiff knows this already—that the system is not to be activated unless there’s some kind of emergency going on. If he scratches his nose or makes a sudden movement, if it doesn’t amount to something really serious of course, there will be no problem and no action will be taken. [¶] . . . [¶] So tentatively at this point the Court intends, based upon the indications of the previous incidents, the indications of previous actions that this defendant has taken raise a serious concern as to the viability of having him completely unrestrained in the courtroom.” The trial court informed counsel that it would revisit the issue of using the stun belt if, for example, it could not be worn without being conspicuous.

Before jury selection commenced, counsel raised the issue of the stun belt: ‘“I have no doubts about this Court’s judgment about the use of the react system; however, I just again want to note for the record . . . that I think there are less invasive ways to do it . . . .” The trial court acknowledged counsel’s objection.

b. Discussion

‘“In general, the ‘court has broad power to maintain courtroom security and orderly proceedings’ (People v. Hayes (1999) 21 Cal.4th 1211, 1269 [91 Cal.Rptr.2d 211, 989 P.2d 645]), and its decisions on these matters are reviewed for abuse of discretion. [Citation.] However, the court’s discretion to impose physical restraints is constrained by constitutional principles. Under California law, ‘a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.’ (People v. Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322].) Similarly, the federal ‘Constitution forbids the use of visible shackles . . . unless that use is ‘“justified by an essential state interest”—such as the interest in courtroom security—specific to the defendant on trial.’ (Deck v. Missouri (2005) 544 U.S. 622, 624 [161 L.Ed.2d 953, 125 S.Ct. 2007], italics omitted.) We have held that these principles also apply to the use of an electronic ‘stun belt,’ even if this device is not visible to the jury. (People v. Mar (2002) 28 Cal.4th 1201, 1219 [124 Cal.Rptr.2d 161, 52 P.3d 95].)” (Lomax, supra, 49 Cal.4th at pp. 558-559.)

“ ‘In deciding whether restraints are justified, the trial court may ‘“take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.” (Deck v. Missouri, supra, 544 U.S. at p. 629.) These factors include evidence establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise engage in nonconforming behavior.’ (People v. Gamache (2010) 48 Cal.4th 347, 367 [106 Cal.Rptr.3d 771, 227 P.3d 342].) Although the court need not hold a formal hearing before imposing restraints, ‘the record must show the court based its determination on facts, not rumor and innuendo.’ [Citation.] The imposition of physical restraints without evidence of violence, a threat of violence, or other nonconforming conduct is an abuse of discretion.” (Lomax, supra, 49 Cal.4th at p. 559.)

On appeal, defendant does not challenge the court’s finding of a manifest need for restraint. Instead, defendant argues that in deciding what restraint to employ, the trial court erred by failing to consider less restrictive physical restraints and the adverse psychological impact of the stun belt on him.

In general, ‘“when physical restraints are called for, a trial court should impose ‘the least obtrusive or restrictive restraint’ that will ensure effective security.” (Lomax, supra, 49 Cal.4th at p. 562.) Here, the trial court stated that it would not use shackles to restrain defendant because it wanted to ‘“avoid any untoward appearance” that he was dangerous or a flight risk. It believed the stun belt was a ‘“legitimate and reasonable insurance policy” against defendant taking any action toward escape or violence, and that the device could be used inconspicuously under defendant’s clothing. When counsel expressed concern that defendant feared the device might be accidentally activated, the trial court explained that it would specifically instruct the bailiff to avoid doing so absent ‘“some kind of emergency going on.” Moreover, the trial court informed counsel that it would revisit the use of the stun belt as a restraint should any problem arise during trial.

‘“In People v. Mar, supra, 28 Cal.4th at pages 1225-1230, we examined the potential psychological consequences of wearing a stun belt and the physical effects from electric shock in subjects with certain medical conditions. However, recognizing that our decision was the first to consider use of the REACT belt in California criminal trials, we expressly stated that our discussion of these topics was offered to provide guidance ‘in future trials.’ (Id. at p. 1225, italics added . . . .)” (Lomax, supra, 49 Cal.4th at p. 562.) Defendant’s trial occurred four years before we decided Mar. In ordering the use of the stun belt, the trial court addressed defendant’s fear that the device would be accidentally activated, which is one of the risks we identified in Mar that trial courts should consider before requiring a defendant to wear a stun belt. (See People v. Mar, supra, 28 Cal.4th at pp. 1225-1226.) We will not fault the trial court in this case for failing to consider the other potential psychological consequences subsequently identified in Mar. (See Lomax, supra, at p. 562; see also People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 391 [178 Cal.Rptr.3d 185, 334 P.3d 573] (Bryant, Smith, and Wheeler).) In sum, the court did not abuse its discretion in ruling that use of the stun belt was appropriate in these circumstances.

2. Instruction on Claim-of-right Defense

a. Instruction on claim-of-right defense

Defendant contends the trial court on its own motion should have instructed the jury concerning the claim-of-right defense based on evidence that defendant thought he was helping Sanchez regain his own property from the Morales residence. We disagree.

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) In People v. Tufunga (1999) 21 Cal.4th 935, 950 [90 Cal.Rptr.2d 143, 987 P.2d 168] (Tufunga), this court affirmed that, as at common law, claim of right remains a viable defense to a charge of robbery. “The claim-of-right defense provides that a defendant’s good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery.” (Id. at p. 938.) A trial court, however, is not required to instruct on the defense “ ‘unless there is evidence to support an inference that [the defendant] acted with a subjective belief he or she had a lawful claim on the property.’ ” (Id. at p. 944.) We concluded that the trial court prejudicially erred by denying the defendant’s request to instruct on claim of right on the ground the evidence did not support giving the instruction. (Id. at p. 957.)

In People v. Williams (2009) 176 Cal.App.4th 1521 [98 Cal.Rptr.3d 770], the Court of Appeal extended the claim-of-right defense to an accomplice charged with burglary and ro