*1 5,May S101984. [No. 2014.] PEOPLE,
THE Plaintiff and Respondent, CHISM,
CALVIN DION Defendant and Appellant.
Counsel Court, D. Mark under Lenenberg, for Defendant appointment Supreme and Appellant. Brown, Jr., Harris, General,
Edmund G. Kamala D. Dane R. Attorneys Gillette, General, Hamanaka, Chief Assistant C. Attorney Pamela Assistant General, Sharlene Attorney A. Honnaka and Zee Rodriguez, Attorneys Deputy General, for Plaintiff and Respondent.
Opinion
CHIN, J. convicted defendant jury Calvin Dion Chism of the first degree A Code, (Pen. (a) murder subd. (count one))1 robbery attempted § (§§ (count Moon, two)) of Richard robbery and the second degree Ja Jung (§ (count three)).2 Chung The found true the special circumstance that the murder allegation was committed during attempted 190.2, (§ commission of a robbery (a)(17)(A)). subd. It also found true that a allegations in counts one and two was armed with a firearm principal (former (a)(1)), subd. and that defendant used a firearm personally § 12022.5, in the (former (a)(1); commission of all three counts subd. see § (a)). now 12022.5 subd. trial court true the found allegation § *12 had defendant suffered one serious prior juvenile or violent adjudication (§§ within of the “Three meaning (b)-(i), Strikes” law subds. 1170.12, (a)-(d)). subds. verdict,
The was unable a jury to reach trial court declared penalty a Another jury mistrial. After a retrial impaneled. penalty phase trial, the second returned a verdict of one. death as count statutory specified. All references are to the Penal Code unless otherwise Taylor Marcus Johnson and were tried for their Samuel with defendant involvement robbery degree of an attempted murder of Moon. Each was convicted first murder with circumstance, robbery attempted special prison and each was to life in without sentenced parole. of possibility 1181) (§ and his for new trial
The court denied defendant’s motion trial 190.4, (e)). With (§ regard subd. verdict modify motion to penalty a one, to death consecutive the trial sentenced defendant plus count court of a firearm enhancement. of 10 for the use years personal term upper two, count of six years plus court sentenced defendant to term upper enhancement, of for the use of a firearm consecutive term five years personal court 654. The but the sentence to section stayed 11-year pursuant court this three, doubled five on count years then a consecutive term of upper imposed law, consecutive sentence 10-year to 10 under the Strikes years Three plus Defendant was awarded for the use of a firearm enhancement. personal is automatic. credits. This days of presentence custody appeal 2933.1, (§ credit We defendant is entitled to conduct days conclude modify and order clerk of the court to abstract (c)), subd. superior including reflect of conduct credit. The days judgment, those 96 judgment sentence, death otherwise affirmed.
I. Facts Phase
A. Guilt
1. Prosecution Evidence
a. Robbery Riteway 18, 1997, On defendant entered the Market May Riteway (Riteway clerk, hair market) Chung, and asked the lone Ja Jung alone Compton she have defendant left. Defendant gel. any, said did not Chung quickly One returned with codefendant Johnson and three accomplices. accomplice her, Defendant money. his at and demanded approached Chung, pointed gun went and told the cash Defendant register. behind counter Chung open (the Clock) handgun took cash from and nine-millimeter Clock register took various items. that the owner under the counter. The other robbers kept Defendant the Clock at as he followed his out Chung accomplices pointed the store. officer, trial, (CYA)
At parole defendant’s California Youth Authority robbery surveillance videotape Kenneth viewed Lipkin, Riteway the market and later defendant as the who first entered recognized person he defendant’s voice the Clock left. Chung Lipkin recognized pointed *13 video,” a the don’t a “There’s They on “We’re in house. have saying, tape Clock,” noted defendant’s “187” comment was and “187.” Lipkin section that defines murder. reference to Penal Code
b. Eddie’s Store Liquor
(1) The Murder and Attempted Robbery 12, 1997,3 On (Eddie’s June Edward Snow owned Eddie’s or Liquor liquor store), which was located at the intersection East Boulevard and Artesia Butler Avenue in Richard Long Beach. Moon was at Eddie’s as a employed clerk.
Codefendant Johnson’s Marcia4 sister with defendant and acquainted 12, defendant, Johnson, Around 9:00 a.m. June Taylor.5 Taylor, and Marcia met at Marcia’s home in Defendant wore jeans black and Compton. black and Nike T-shirt with word “Air” a white across the logo printed (Nike T-shirt). waistband, front Air Defendant had a Clock in handgun his same had gun Marcia seen him “all the time” carrying during previous month. Defendant told them about his rob Eddie’s each assigned to plan a task. He instructed to enter to person Marcia Eddie’s determine location surveillance video cameras and the number of clerks. Defendant any driver, to be the and directed Johnson to the store appointed Taylor into go with No defendant. one to defendant’s objected plan. later, 15 minutes left in a
Approximately Marcia’s house group light gray Plymouth van had borrowed from his Zonita Voyager Taylor girlfriend, Wallace.6 had Defendant the Clock tucked in his waistband he entered when the van. 2:00 Taylor Around from p.m., parked couple away blocks exited, Eddie’s. to the Marcia walked store went inside. She saw a liquor camera, and saw a clerk standing she behind the counter. Marcia purchased van, to the candy, returned and told she had Defendant defendant what seen. Marcia, walked Johnson then towards store. According liquor two, “a defendant had a minute there bulge his waistband.” Within were one or two and defendant and Johnson then ran gunshots, from liquor store to the Taylor van. drove the to a house Beach meet Iris group Long Johnston. The drive took 20 to 30 minutes. The at the house for group stayed about 10 minutes. then left with and a drove to They Johnston friend and defendant’s residence. 3 All are calendar references unless otherwise noted. Johnson, sister, Codefendant his unrelated witness share the same last name. To law, simplify our discussion of the and the we refer to Johnson facts shall codefendant
Johnson, Stephanie and we refer to Johnson’s sister Marcia and witness first name. Johnson pursuant agreement County Marcia plea Angeles testified to a with Los District Attorney’s provided 12-year Office that she would serve a sentence for her involvement in the exchange testimony. crimes that occurred Eddie’s in her truthful Taylor Wallace testified she loaned the but she did recall the date. van June spoke Reynolds Reynolds She said Sergeant she was truthful when she with on June 19. Taylor p.m. testified Wallace him she loaned van to 1:30 on June and that he told about day. p.m. returned it about 4:30 same *14 across the street from a bus bench sitting Miller had been on
Steven men enter two African-American liquor Eddie’s on June 12 when he saw thereafter, he thought sound Miller heard a popping store.7 Shortly ran north on He men run from the store. gunshot. They then saw the same East and onto Marker right Butler Avenue two blocks turned approximately under the counter into Eddie’s and saw Moon immediately Lane. Miller ran back, He and Miller bleeding. telephoned police. on his unconscious old, five as feet years African-American males 17 to described two tall, hair and “thin builds.” style” or inches with short “Afro eight seven with white on stripes added that one wore dark and black shirt jeans Miller the front. near the as she drove intersection gunshots Johnson heard
Stephanie 3:00 on June 12. and Butler between 2:00 and Artesia Boulevard Avenue p.m. store. then saw men from the direction of One running She two liquor skinned, slim, dark khaki wearing was dark and of medium He was height. underneath, and a shirt a white and his hair was pants curly black with shirt and could describe the shaved around the bottom. Stephanie top recall clothing. second his person Motta on East Marker driving afternoon of June Peter
During (the make and Lane when he saw a same light-colored Plymouth Voyager Lane and Wallace’s) near the intersection of East Marker model parked seat, inside, Avenue. were one the driver’s Butler Two African-Americans Avenue other in the seat. Two men ran fast from Butler very passenger African- towards the and then Motta noticed one was “disappear[ed].” van American, thin, average. and taller than slightly at Immediately Following Events Crimes
Eddie’s at arrived Rudy Stacey Holdredge Beach Police Officers Romero Long outside, at Romero with Miller Holdredge Eddie’s 2:08 While p.m. spoke counter, bleeding inside found on tire floor behind lying went Moon arrived. Moon died before the and unconscious. paramedics Johnson, defendant, and Marcia. Taylor, with acquainted Iris Johnston was of one of her friends Johnston at the Beach home Long met group testified they 1:00 and 1:30 Moon was killed. Johnston day between p.m. After about 10 in a similar in make model Wallace’s van. arrived van minutes, and drove to defendant’s and the left in van group Johnston regarding attempted testify trial. His observations statements Miller refused to through testimony objection robbery and murder at Eddie’s were admitted over defense shortly murdered. police who interviewed him after Moon was officer *15 Along residence. Johnston saw overhead and what way, helicopters asked said, Someone “There have been a said happened. robbery.” must Defendant residence, “I” or “know did it.” “we” Inside defendant’s watched they [who] on They news television. then to a store. Defendant appeared walked Later, defendant, Marcia, nervous when a they saw car. while and police call, Johnston were on a three-way defendant told Johnston he telephone wanted talk with Marcia. privately That Johnston wrote and hand evening, a letter delivered to defendant in which she him accused and the others of committed “that little having robbery Long Beach.” Investigation Police recovered a bullet from the store near and a floor Moon’s liquor hip nine-millimeter on spent cartridge the floor near the shelves. casing liquor store, There an was indentation the ice cream machine which was with consistent of mark a a caused bullet off hard type ricocheting item. The owner of Eddie’s there testified was no indentation the ice on cream machine to June prior from the cash nothing missing register. Police retrieved (VCR) from videocassette recorder videotape inside the store liquor store or (videotape liquor videotape surveillance videotape).
Los Angeles County deputy medical examiner Scholtz Stephen performed on body Moon’s determined the of death autopsy gunshot cause was a back. The Moon’s bullet had exited through Moon’s chest. Moon’s right knee scuffed examined and his was bruised. Scholtz scalp Moon’s shirt but visually observed no residue or Scholtz microscopically gunshot soot. examined Moon’s body entire but found no marking which is stippling, skin from a by powdered particles discharged firearm.
(4) Search Residence of Defendant’s murdered, On June one week after Moon was officer defendant’s parole searched defendant’s police residence. found a loaded Compton They shelf, Clock on handgun his bedroom closet a black with and a T-shirt “Air” front, white symbol Nike across the and a letter Johnston had written printed to defendant dated June 12. Defendant was arrested the same day.
(5) Search Iris Johnston’s Residence On searched Johnston’s recovered letter August police home and defendant had written to her that was 11. postmarked August
(6) Firearms Evidence defendant’s found in the loaded Clock handgun owner identified Riteway’s at Riteway. under the counter that had been kept bedroom closet as gun day had been under counter He testified that Clock Riteway robbery. Hawkins, crime labora- County a Los Sheriff’s Angeles Department
Robert *16 Clock, examiner, examined and he examined and test fired firearm tory at Eddie’s. Hawkins recovered from floor cartridge casing bullet and Clock, fired but he could not the bullet could have been from testified on on it. Based on markings markings there not enough certain because were had been fired from Hawkins concluded the cartridge casing, casing machine, Eddie’s ice cream examined taken of Clock. Hawkins photographs have been its outer metal surface could and concluded indentation on shirt a Hawkins used a chemical on Moon’s by caused bullet strike. process a was three and that revealed two each of which within gunpowder particles, hole the back of shirt. Based on half inches of the center of on entry measurements, four gun those Hawkins concluded the was approximately it five feet from Moon when was fired. and Johnson Physical Appearance of Defendant African-American,
Defendant, five feet nine inches tall and an Johnson, African-American, was feet tall and six weighed pounds. weighed pounds.
2. Evidence Defense there a doorway Daniel testified that Defense Mendoza investigator door bedroom and an bedroom adjacent spare but no between defendant’s be accessed the back door of the house. through that could officer, a testified as witness a Beach Harbor Patrol Long Michael Cayton, duty June was off Cayton for Johnson. Between 12:00 and 3:00 p.m. standing three men near Eddie’s when he noticed driving “suspicious” skinned, in their early the men were dark near a lot. noticed parking Cayton 20’s, inch in One height. feet nine inches and six feet one and between five followed, Eddie’s, looking outside around. stayed one and one walked toward or could not exclude identify of the men entered the store. liquor Cayton Two Johnson, defendant, he that day. of the three men saw any Taylor B. Penalty Phase
1. Prosecution Evidence At the retrial a before new penalty phase jury, prosecutor presented evidence similar to that presented during guilt evidence phase, prior defendant, crimes committed and victim impact testimony. 9, 1993,
On Quadrelli-Jones, December an assistant at Cheryl principal School, Anaheim’s Gilbert West High saw defendant leave the school and cross the street towards a led pedestrian passthrough nearby neighborhood. defendant, feet from male Approximately from appeared another Defendant extended his arm and fired a passthrough. gun down, Quadrelli-Jones individual. As yelled to students to defendant and get the male he had at left the shot area. 31, 1994,
On January defendant and male two companions approached Turner in a Bradley lot at Arnold held parking Cypress’s Park. Defendant *17 to Turner’s head. One gun demanded Turner’s and then companion wallet it wallet, others, searched for in car. Turner’s Not he said finding to “Just kill the motherfucker now.” and right Defendant Turner then struggled, Griffin, and defendant shot Turner in the leg. Rhonda who was nearby, saw defendant and tried to fleeing chase him. She was within an arm’s length said, defendant when he a against pressed gun her and “Do want temple you this, some of you fucking bitch?” A car filled with several other drove people and in. defendant Defendant up, jumped arrested. On subsequently July 25, 1994, defendant admitted allegations in a that he juvenile petition committed the second attempted degree robbery of Turner and assaulted Turner with a semiautomatic firearm.
The victim evidence included impact testimony from members and family life, friends victim regarding Moon’s his and the effect personality, joy his death had on those to close him. It also included a board with several photo of Moon with members of photographs his We detailed family. provide summary of this and testimony evidence in with our physical conjunction discussion of defendant’s contention the trial court erred by admitting much of the victim testimony. impact Evidence
2. Defense old, Defendant’s mother and were father 13 and 15 years respectively, when defendant was bom. Defendant’s mother had with six children five abuser, different men. She and drug was a she lost of defendant when custody then, he was seven old. Until had years defendant been child. “happy” defendant was When his grandmother. Defendant then lived with paternal killed, old, identify body. had and defendant his father was years that, grand- His paternal behavioral having problems. After defendant began who took maternal grandmother, defendant to his custody mother gave a year. for about a church once a week sessions at defendant therapy in his CYA commitment. during school high Defendant from graduated in Fellowship Christian Joy a senior at Abundant Gray, Arthur pastor had attended childhood. Defendant early knew defendant his Inglewood, activities, the choir. including church in many church participated courteous, and friendly. Defendant was always pleasant, facility Robles CYA met defendant at Paso Robert Chaplain Curry work, even without compensa- always willing about Defendant 1995. counselor, choir, a peer inspired in the acted as sang preached, tion. He unit. racial tensions within his others. Defendant to reduce helped that, awas ward at the Paso Deandre Brown testified while defendant CYA, and in himself. Defendant Robles he Brown to believe in God inspired classes. high Brown attend school encouraged Wahlberb, CYA, at the Robles met defendant Lorraine volunteer Paso He during activities with defendant. many spoke She was involved in 1996. Defendant often church in church activities. services participated at influenced others. positively offered the institution classes preached at the met defendant while him Chino teaching In Lawrence Mills *18 1998, of his parole was returned to CYA violation CYA. In defendant upon that defendant earn- for his involvement in the instant crimes. Mills testified in a a and another certificate training ed certificate in forklift operating warehousing. him, his father’s custody his mother losing
Defendant testified about that, death, added while living to his father’s He identify body. and having aby neighbor, he assaulted sexually twice grandmother, with his paternal 11, use and drugs At started to he did defendant identify. age whom Later, at various CYA in While religion. alcohol. he became interested facilities, a awakening. and religious experienced spiritual defendant became He said his the instant crimes.
Defendant denied involvement in any and he right wrong, the difference between had him taught grandmothers , . . stuff, much of . a I’m pretty guilty “A lot of the crimes told jury, murderer, kill a man over human life too much for me to I’m not. I value the wife, you, time I see defendant said “every the victim’s Addressing dollar.” hearing said had I spark your daughter you your eyes, got cell, . . . go every and think about my night your how life was before Mr. Moon died. And if was to say I it wouldn’t be It would anything, sorry. be I wish I could I could change bring hands of time. wish I him back. But I can’t.”
II. Discussion
A. Jury Selection Issues
1.
Dire
Group
Voir
Death-qualification
Defendant
contends the trial court erred
conduct
death-
failing
of voir dire of
qualifying portion
and in
potential jurors individually
seques-
tration as
by Hovey
(1980)
v.
Court
required
Superior
2. Constitutionality VoirDire Death-qualification *19 Defendant contends his death must be reversed because the judgment of death-qualification selection is portion high unconstitutional. and court this court have rejected (Lockhart this contention. v. McCree 162, 1758]; 476 U.S. 176-177 L.Ed.2d 106 S.Ct. v. Lenart People [90 498].) Cal.4th Defendant no offers reason to reconsider the issue to our persuasive state Constitu tion, and we decline to do so.
B. Guilt Phase Issues Statements Steven Miller’s
1. Officer the admitting the trial court erred in portion Defendant contends made outside of the statements Steven Miller Romero’s that related testimony admission Miller’s after the Defendant claims Eddie’s murder. shortly to confrontation. right his Sixth Amendment statements violated Background a. Factual and Procedural testified as follows Officer Romero Over a defense hearsay objection, his with Miller Eddie’s. encounter outside regarding radio within seven minutes Officer Romero arrived Eddie’s Miller to be the first he contacted. appeared broadcast. Miller was person nervous,” “unsettled,” and shaken throughout “very “very uneasy up” said, told Romero “I dead.” Miller Officer encounter. Miller think he’s from Miller had been on bus bench across street following. sitting males inside. go Shortly store when he saw two African-American liquor afterward, he as a Miller recognized gunshot. Miller heard a sound popping Eddie’s, Avenue, on Butler then same men run from head north saw Eddie’s, into turn Lane. Miller ran immediately onto East Marker right back, counter, unconscious and looked behind the and saw the clerk on his addition, told Officer Romero Miller called the In Miller bleeding. police. old, eight five feet seven or inches both males to be 17 or years appeared tall, and a One wore dark jeans with “Afro hair “thin builds.” style” short wore dark shorts. long black shirt with white on front. The second stripes Meanwhile, Holdredge, Officer Romero radioed for assistance. police finding on the clerk. After Romero’s had entered Eddie’s check partner, floor, him called for additional Holdredge paramedics police assistance. stand, to the counsel for Miller called Miller
Before prosecution trial in unrelated awaiting informed court that Miller was in custody invoke his Fifth Amendment Three Strikes case and that Miller intended to on the testify. During if called to a hearing self-incrimination right against matter, information that would indicated were unaware they any parties if testified in this case. Based on Miller would incriminate himself he suggest Miller based on they try counsel that would not impeach representations record, have right trial ruled Miller did not his criminal court prior and advised Miller this ruling. the Fifth Amendment privilege, assert *20 1288
However, witness, when the called Miller as a Miller prosecution refused to any answer The court questions. found Miller and unavailable to contempt testify.
b. Discussion “ 1200, Code Evidence section (a), subdivision that provides ‘[hear say evidence’ is evidence of a that statement made other than aby witness while at and that is testifying hearing offered to the truth of prove the matter stated.” evidence is Hearsay not admissible “[e]xcept provided (Id., by (b).) law.” subd. Miller’s statements were they because were hearsay made out court and were offered for the truth of what he had told Officer Romero. Evidence Code section 1240 that provides of a state “[e]vidence ment is not made inadmissible if hearsay (a) rule by statement: [][] narrate, describe, act, condition, Purports or event explain perceived declarant; by the (b) Was made while the declarant was spontaneously [][] under the stress of excitement caused such Defendant con perception.” cedes Miller’s statements admission under qualified this exception rule, hearsay but on the relying high court’s decision in v. Crawford 36, Washington (2004) 177, 541 U.S. 68 L.Ed.2d 124 S.Ct. [158 1354] (Crawford), he contends statements were not admissible under confrontation clause the Sixth Amendment. held the confrontation clause ‘admission “prohibits Crawford
testimonial
. .
statements of .
witness
did
who
not
at trial unless
appear
[es]
was unavailable to
testify, and
defendant had had a
[the witness]
prior
53-54,
for cross-examination.’
at
(Crawford,
opportunity
pp.
[541 U.S.]
added.)”
386,
(People
v. Romero
italics
(2008)
44 Cal.4th
421
Cal.Rptr.3d
[79
334,
Romero,
Thereafter,
(Romero).)8
187 P.3d
in Davis v.
as we noted in
56]
Washington (2006)
224,
2266],
1289 of the Sixth Amendment for are witnesses’ by purposes questioned police 1 [citation], are officers” enforcement all law “interrogations by and not U.S. Bryant [(2011) 562] Clause.’ ([Michigan to Confrontation subject v.] [1143,] 1153], Crawford, _,_[179 supra, 131 S.Ct. quoting L.Ed.2d 769, 811 53.)” (2011) Blacksher 52 Cal.4th 541 U.S. at p. (Blacksher)). P.3d 370] identified six in Blacksher we Bryant, on the reasoning Based of made in course whether statements determining factors to consider “ an out-of-court of creating for ‘primary were police questioning purpose clause.” the confrontation testimony’ substitute for trial implicates evaluation (1) are an (Blacksher, objective Cal.4th at These supra, p. and actions of and the statements the circumstances of the encounter of encounter; made (2) whether the statements were involved in the individuals reasonably or under circumstances that ap an during ongoing emergency than for other to an or were obtained peared present emergency, purposes trial; (3) emergency at whether actual or by any perceived use the prosecution (4) the de an threat to first or the presented ongoing responders public; condition; had interrogation clarant’s medical whether the focus of trial; to evidence for ongoing emergency obtaining shifted from an addressing which it and of the statement and the circumstances under informality (Id. 814-815.) was obtained. at pp. case, to we conclude that Miller’s state defendant’s
Applying Crawford did not were and that their admission ments to Officer Romero nontestimonial Amendment to confrontation. Officer Romero right violate defendant’s Sixth scene, he the first to arrive at the and Miller was the first person officer “shaken contacted. Miller to be nervous” and “very up.” appeared encounter, a store where which took outside place circumstances occurred, had that Miller and Officer Romero reveal shooting recently spoke objectively each in order to deal an It was ongoing emergency. to other with of whom Officer Romero to believe the one suspects, presum reasonable for an immediate armed with a remained at and ably gun, large posed was still are and We shooting threat to officers to the to responding public. his observations concerning convinced that Miller’s additional statements an made for the meeting were suspects primary purpose descriptions (See at trial. evidence for use a later ongoing emergency produce Romero, agitated made an victim Cal.4th supra, [statements an addressing for the purpose ax attack were provided police at large whether the attacker remained emergency situation determining others].) threat presented 2. Evidence That Wallace Testifying Was Fearful of trial Defendant contends the court admitted erroneously evidence that three trial, years either prior Johnson his cousin accused Zonita Wallace of *22 talking with it police, contending was irrelevant. Defendant also claims the
evidence was unduly under Evidence Code section prejudicial because could infer his of consciousness based on of guilt evidence his association with Johnson and connection Johnson’s to accusation.9
a. Factual and Procedural Background Wallace testified she dated in 1996 Taylor was acquainted murdered, with defendant and Johnson. On the Moon was day Wallace owned van gray Plymouth Voyager that had two front and one doors side sliding door. Wallace had loaned to the van in June Taylor 1997 but did not recall the date.
Wallace further testified she that drove her van with Police Compton Detective Catherine Chavers on June after her interview Sergeant with Frederick she did Reynolds; not recall that she and Chavers drove to a gas station. Chavers, Wallace denied that while at gas station with she met someone whom she identified as Johnson. She also denied that something occurred at the that gas station caused her to be afraid. counsel,
Over a hearsay objection by Johnson’s testified Sergeant Reynolds interview, that June him during the Wallace told she had loaned Taylor the interview, van the week before. testified that Reynolds after the he drove ato Wallace, gas station where he saw Chavers with and that Wallace to appeared be frightened. Without Wallace said she to explaining why, would not go court she because was afraid. The trial court ruled Reynolds’s testimony admissible to Wallace’s explain failure to recall to the driving with Chavers 9 Here, claims, and in most other defendant contends the asserted violated of error various instances, rights. his state and federal “In constitutional most insofar as defendant raised the court, issue at all in the explicitly trial he failed to make some or all of constitutional instance, arguments indicated, he now advances. In each unless appears otherwise it that either (1) appellate (e.g., claim is of a kind sponte; failure instruct sua erroneous instruction affecting rights) required defendant’s substantial that no trial court action the defendant it, preserve arguments or legal new do not invoke facts or standards different from merely those the trial court apply, itself was asked to but that assert the trial court’s act omission, court, wrong actually presented insofar for the reasons had to that the additional legal consequence extent, violating that Constitution. To defendant’s new constitutional course, arguments instance, are appeal. not forfeited on In rejection, H] the latter [Citations.] merits, on the of a claim that trial court erred on the actually issue before that court necessarily rejection newly ‘gloss’ leads to applied separate constitutional as well. No cases, constitutional is required provide discussion in such and we therefore none.” 412, 441, Boyer 581].) Cal.4th fn. station, had identified Johnson denials that she Wallace’s
gas explain station, and to that at the gas occurred something had become frightened by of guilt. Johnson’s consciousness demonstrate that Detective Chavers would an offer of proof The then made prosecutor 19, on June with to a station gas Compton she rode Wallace testify inside a the two males and his cousin Michael as Wallace identified Johnson location, while talked with the two males at that that Wallace vehicle parked van, accuse one of males waited in the Chavers overheard Chavers Wallace denied the having with police, Wallace spoken but thereafter appeared “frightened.” accusation to show of the accusation was admissible argued evidence *23 and to demonstrate Johnson’s consciousness Wallace was fearful of testifying excluded that the evidence should be argued Counsel Johnson guilt. whether was afraid Wallace was not asked direct examination she because on Also, because there unduly the evidence testify. assertedly prejudicial to counsel did no made the accusation. Defendant’s showing Johnson in these objections. not join
The trial court overruled Johnson’s admitted evidence objections Thereafter, Detective accusation asserted grounds prosecutor. that Wallace testified consistent with the offer of prosecution’s proof Chavers station, that one of the males identified Johnson and his cousin at gas said, had to and that then to Wallace police,” appeared spoken “[Wallace] frightened. be
b. Discussion forfeited this issue because defendant Preliminarily, People argue however, need not litigant object, he did not in Johnson’s “A objections. join 758, 44 Cal.4th 793 if so would futile.” v. Wilson doing (People [80 211, Here, had reasonable 1041].) because defendant no P.3d Cal.Rptr.3d altered the trial court’s additional information that have might basis present he or to would have caused him unique prejudice, ruling object ruling would have been have believed his own motion making could reasonably no error. We contention on its merits find futile. consider this and exclusion of We on the admission rulings review trial court’s 1067, (2006) 37 Cal.4th discretion. v. Guerra evidence for abuse of 118, “Evidence that witness (Guerra).) 129 P.3d Cal.Rptr.3d 321] [40 to the is relevant or fears retaliation for testify testifying is afraid to (People Burgener therefore admissible.” v. that witness credibility of 747, see (Burgener); 62 P.3d (2003) 29 Cal.4th Cal.Rptr.2d 1] [129 Code, 780.) Evid. generally Evidence of the basis for any explanation § such fear is likewise relevant to the assessment of the jury’s witness’s and admissible for that credibility but not for the truth of nonhearsay purpose, any (Burgener, matters asserted. at
Evidence that or his Johnson accused Wallace with companion speaking was relevant because the infer police reasonably could that the accusation was made to Wallace not to with persuade cooperate police at a trial testify store incident. The involving liquor jury also reasonably could infer that the accusation Wallace and affected frightened her testimony. Here, where Wallace inability to remember her state- “professed previous gave] ments equivocal responses many prosecutor’s ques- [and tions, ... the trial court did not its abuse discretion determining evidence of her fear in testifying was relevant to the of her assessment jury’s credibility.” (People 55 Cal.4th Valdez 924].) claim
Defendant’s to the contrary, accusation was admissible although it occurred more than years three before Wallace testified. Wallace’s testi- mony was riddled with claimed failures evasive memory and inconsistent responses, many of which related events that occurred the day accusation was made. Wallace’s her professed inability remember prior *24 and her statements could be equivocal her fear of responses explained by retaliation for and fear could have testifying from reasonably originated the accusation Detective Chavers overheard.
We conclude the accusation was admissible against defendant notwith- the lack of the standing evidence statement to linking him. “For such admissible, evidence to be there is no show requirement to threats the against witness were made defendant or the fear personally witness’s retaliation is to the ‘directly (Guerra, linked’ defendant.” Cal.4th at supra, 37 1142.) Because not p. necessarily is source of the its threat—but “[i]t to the existence—that relevant witness’s (Burgener, supra, 29 credibility” 870), Cal.4th at the evidence similarly ground was not excludable on the p. that Chavers was unable to discern made whether Johnson his cousin accusation. 352, Evidence Code
Citing section defendant next contends admission of evidence accusation to show guilt Johnson’s consciousness of to him unduly prejudicial because his consciousness of testimony implied Defendant, no guilt, evidence connected him to the although accusation. however, trial, not did to the evidence on object this at did ground specific not join Johnson’s on this and not objection did ground, request limiting instruction on that the evidence was ground admissible as to Johnson but Code, (a) subd. (See Evid. him. is therefore forfeited. §§ The issue evidence must admission of to the erroneous objection assertedly [an and for one evidence is admissible purpose and timely specific], [when the evidence another, shall restrict “the court request inadmissible for upon Because such a specific the jury accordingly”].) its instruct proper scope it suggests have the asserted nothing could objection prevented prejudice ground have futile defendant to this object specific would been court, Duran 16 Cal.3d trial this claim is forfeited on v. appeal. Wilson, 1322]; People supra, Cal.Rptr. at Cal.4th if nor
Even this claim were it has no merit. Neither evidence preserved, con- evidence of defendant’s the accusation was prosecutor suggested con- that the have might sciousness of Defendant’s guilt. speculation the evidence to does not that the trial court abused its nected him establish discretion of the accusation. admitting evidence Marcia to Detective
3. Johnson’s Statements Edwards Paul Defendant contends the trial court Detective erroneously permitted Marcia, that the Edwards to his interview with Marcia said testify during murder, defendant her had been to the night before had told he liquor inside, store before and saw clerk an old man. This claim is without one only merit.
a. Background Factual Procedural defendant, examination, met with On direct Marcia testified when she Johnson, murder, told home the defendant Taylor morning her to go about his to rob Eddie’s. He said he wanted Marcia group plans inside, cameras, working. look for and determine how clerks were many *25 drive, enter the store Defendant said would and Johnson would Taylor liquor and no one Marcia testified Only with defendant. defendant spoke, objected. had been to the store heard of it before that morning. she not or liquor cross-examination, dis- counsel about During defendant’s asked specific in Marcia’s to Detective Edwards regarding plan- statements crepancies she, of the Marcia testified she told Edwards ning robbery. initially morning Johnson and out” the store on Taylor “scoped liquor had to that defendant was crimes. whether she mentioned Edwards Asked involved, did defendant in that version of Marcia admitted she not include her, told Marcia he did not believe events. Counsel asked whether Edwards Marcia and had had occurred the before. night suggested planning so, did told met the testified Edwards and she then Edwards group before to night but had discussed a rob the store at that time. plan liquor Counsel then whether asked she recalled Edwards that telling during night “came meeting, defendant to me and told me that he needed me to do and he needed me to to the store and check something go go out and go buy, how see and to He many something. there said he people buy [were] needed the He was to then money. going rob store.” Marcia testified liquor this, recalled she Edwards but testified the did not telling conversation relate Eddie’s. any plans rob Thereafter, Marcia, Detective Edwards testified that when he interviewed crimes, she, she told him that on the initially morning Taylor, Johnson drove to the store in a brown liquor Cutlass. After Edwards said he her, did not believe Marcia told Edwards defendant them to the accompanied store drove there in van. they Wallace’s After Edwards said he before, believed the had occurred the Marcia and told planning night agreed Edwards the foursome met at her She house before. added that night defendant said he had been to the on a store occasion saw one prior only clerk, man, an old inside. objected
Defendant’s counsel that Marcia’s statement that defendant had he had been said to the store was but the previously hearsay, inadmissible trial court ruled the statement was admissible to Marcia’s impeach testimony its truth under inconsistent statements to the prior exception hearsay rule. The reasoned the court statement was with Marcia’s inconsistent direct because Marcia did not mention it testimony when asked about the statements defendant made had when he discussed his plans that, to rob the store. court then informed the liquor it parties although had excused Marcia from giving further it would counsel to testimony, permit statement, recall her to her give opportunity explain deny under Evidence Code section Marcia required 770. was not recalled to testify.
b. Discussion “A is by statement witness that inconsistent with his or her trial truth of the testimony admissible establish the matter asserted in the statement under the conditions set forth in Evidence sections Code 1235 and v. Johnson 770.” 3 Cal.4th 1].)10 P.2d Defendant contends Marcia’s statement to Detective Edwards by Section 1235 of the Evidence Code “Evidence made provides: of a statement witness *26 not made hearsay testimony is with inadmissible rule if the statement is inconsistent his hearing at the in compliance is offered with Section 770.” Evidence Code section 770
provides: justice require, “Unless the interests of of a otherwise extrinsic evidence statement by a any part testimony hearing made witness that is inconsistent with of his at the shall be [jQ (a) give testifying excluded unless: witness was so examined while as to him an
1295 store his to the was liquor defendant her about visit prior what told regarding did as a statement because not admissible inconsistent prior had defendant previously Marcia whether regarding not specifically question court’s as to ruling need not the correctness of the trial been there. We decide with her trial Marcia’s inconsistent this statement of was particular whether Edwards that she acknowledged on that Marcia testimony point. impliedly she before the murder when told had heard of the store the liquor night gone defendant them he had to the met that told group night Edwards examination, the lone On direct store on a occasion and observed clerk. prior however, denied “ever heard of Eddie’s Store before Marcia she had Liquor effect, Marcia’s statement to Edwards In morning prior [the crimes].” as to when she first heard of Eddie’s and with that testimony was inconsistent 11(See v. Code People therefore was admissible under Evidence section 1235.* 850, 401, Cowan 236 P.3d (2010) 50 Cal.4th Cal.Rptr.3d 1074] [113 [test is is testimony for whether witness’s statement inconsistent with prior prior effect contra whether the statement is inconsistent rather than express terms].) not of we conclude trial court did abuse its Accordingly, diction Marcia’s statements to Detective Edwards.12 admitting discretion
4. Adoptive Admission Defendant contends letter Iris Johnston wrote to testimony regarding under the defendant admitted erroneously hearsay exception adoptive Code, (Evid. 1221.) Defendant admissions. also claims Police Compton § violated his rights by due defense Department process right present v. Trombetta his letter to Johnston in failing violation preserve California 479, 413, (Trombetta). U.S. (1984) 467 L.Ed.2d 104 S.Ct. 485-490 2528] [81 a. Factual and Procedural Background defendant’s Iris Johnston she hand delivered a objection, Over testified letter to defendant of the murder she accused him of in which evening at the store. A redacted version of her letter that committing robbery liquor omitted or references to was admitted Taylor Johnson express implied statement; (b) or to has not been excused opportunity explain deny The witness [][] giving testimony further from in the action.” hearsay hearsay to Edwards consisted double because it also Marcia’s statement offered truth. Defendant’s statement included an out-of-court statement defendant for its (Evid. hearsay admission qualified party because it under the for a exception was admissible 199-200, Code, 153, People 1220). (See Cal.Rptr.2d fn. 3 Williams 16 Cal.4th § hearsay falls [multiple hearsay provided admissible that each level within P.2d 710] a hearsay exception].) court, “we Although theory admissibility differs from that the trial review the our and, ruling any ground, we ruling, reasoning, the court’s if the correct on affirm.” 104].) (People v. Geier Cal.4th 582 [61 *27 Dein, into evidence. The redacted letter read as follows: “6-12-97 Dear [f] [f] bored, What’s much this chillin in up? Nothing way, just room I my being to tell want a little First of all I you something! wanted to I have a little say Beach, idea that did that little you guys because ran to robbery Long ya’ll the T.V. to watch the news and than when seen the ya’ll ya’ll was helicopters like, we know the that did ‘yeah, that. So I had a little ideal that [guys] ya’ll did and than when we something was home was all walking ya’ll getting nervous when a car would Another idea I police pass by. have is when we news, talk, was on the phone together watching you was all me to telling hello, until they showed that about the I robbery. was like was like part you ‘you can’t talk while I’m the news.’ I was to self watching saying my they it, must of did I that’s off the why got with And then when we phone you. me, (Marcia, was on the phone you) was like need to tell each ya’ll ya’ll hear, other didn’t something ya’ll want me to all I am Will trying [f] are, is that I don’t say want us further going any than what we already because if we go gether you what ever the get caught doing fuck you Fm to be doing, just going ass out! Will back at just get me when ever! . . . [(][] P.S. Don’t be afriad to tell me Much something! symbol], [heart Ms.” [Ü
Defendant did not read the letter in Johnston’s There is no presence. evidence that he to it or discussed it with responded Johnston. Johnston did later, with defendant until speak several within years months of her at trial. testimony During search of defendant’s residence one week after the shooting, found the letter on police his bedroom dresser.
Sergeant testified that Reynolds while Johnston’s home on searching August found handwritten police letter from defendant to Johnston dated 11. August booked Reynolds defendant’s letter into evidence at the Police but Compton did not note its Department contents in any report. testified Reynolds he was unable to locate defendant’s letter it because when the apparently misplaced Police moved evi- Compton its Department dence ato Los storage Angeles Sheriff’s County facility. Department
The prosecutor sought to admit Johnston’s letter as admission implied defendant that he had committed the because he failed attempted robbery to that letter. Defense counsel respond objected there was no founda- tion for letter admitting Johnston’s because there was no evidence defendant it, and, had read the letter alternatively, was inadmissible because defendant have denied Johnston’s may accusation in his letter law evidence, enforcement lost. The trial court admitted Johnston’s letter into it reasoning sufficiently accusatory from defendant prompt response and that none had been The court given. the assertion rejected speculative by defendant’s counsel that defendant have denied the accusation in his may letter to Johnston.
b. Accusation Johnston’s a has to determine whether party trial court has broad discretion “[A] a hearsay exception [citation] established foundational requirements of whatever finding of evidence implies on the ruling admissibility ‘[a] the trial court’s . . . We review is thereto fact prerequisite [Citation.] evidence. foundational facts for substantial conclusions regarding [Citation.]” 797, 79, (2013) 57 Cal.4th 132 Cal.Rptr.3d (People DeHoyos [158 1].) offered it as letter because the hearsay prosecution Johnston’s constituted did admit that he committed an out-of-court statement to that defendant prove Code, (Evid. 1200.) The Beach.” Long “that little robbery § hearsay of letter under the admission adoptive admission Johnston’s sought intro- admissibility, In of that of theory prosecution exception. support after delivered her letter to defendant shortly duced evidence that Johnston occurred, did not were defendant accusatory, respond the crimes its contents letter, a week after that letter was found in his bedroom to Johnston’s it, later. he a letter to Johnston two months Johnston delivered and wrote “ not made ‘Evidence a offered a against party statement inadmissible rule if the statement is one of which by hearsay party, thereof, has words or other conduct knowledge by with content Code, (Evid. 1221.) Under manifested his or his belief in its truth.’ adoption § crime, under this is accused of committed having provision, person ‘[i]f hear, understand, him an circumstances which afford fairly opportunity and which do to an inference that he was relying not lend themselves reply, Amendment to the United States on the of silence Fifth right guaranteed by Constitution, or and he fails to or he makes evasive speak, equivocal reply, fact or bemay both the statement and the of silence accusatory equivocation ” v. Riel offered as an or admission of implied adoptive guilt.’ 1, 969].) 22 P.2d Cal.4th Cal.Rptr.2d [96 if the call for a While the letter was would accusatory response plainly defendant, there is no evidence accusations were untrue and were known to letter, so, if had done of the under which defendant read the he circumstances it. There was reading and there is no evidence of defendant’s reaction upon of, conduct, that, defendant manifested his adoption no words or showing in, mere belief the contents of Johnston’s letter. Defendant’s possession (See, v. Lewis People it is insufficient to this satisfy e.g., requirement. P.3d 43 Cal.4th 947] [evidence nickname and bore his drawings defendant’s possession purportedly and considered robbery indicated he identified with the Pen. Code section for he finding a menace to was insufficient society support himself manifested a belief what We conclude the trial drawings depicted].) court erred in Johnston’s letter under admitting admissions adoptive because there no admitted hearsay Additionally, exception. properly admission, evidence of an the trial court erred in instructing adoptive admissions under CALJIC No. 2.71.5. adoptive Defendant his death should be reversed because the argues judgment the error in prosecutor assertedly admitting evidence exploited during *29 argument by stressing evidence was critical to the case whether People’s it was considered for its substance as an admission defendant or implied by Also, of what occurred. the error reduced the proof assertedly prosecu- tion’s burden of of all elements of the in violation of his proof capital charges constitutional rights “filling holes in case—the by identity [its] of corroboration Marcia Johnson’s perpetrators testimony.” below, We find the argument As we are satisfied unpersuasive. explained Also, did not consider the the letter jury contents of for their truth. court instructed the that statements made jury counsel are not evidence. by Therefore, (CALJIC 1.02.) No. the erroneous admission of the evidence was v. Watson 818, (1956) harmless. 46 Cal.2d P.2d [299 243] (Watson); 1, and Marlow People see 34 Cal.4th 76 [17 Coffman P.3d admission of evidence at the Cal.Rptr.3d guilt 30] [erroneous addition, is reviewed under Watson standard].) In phase because the letter value, lacked substantive its erroneous had admission no on the impact burden of and therefore the error was not of prosecution’s proof, constitu- tional dimension.
Defendant nonetheless contends that the error and in the admis- prejudice sion of Johnston’s letter as an admission exacerbated adoptive by trial court’s error in with CALJIC No. 2.71.5. instructing jury Assertedly, the instructional error reduced the burden of in violation prosecution’s proof, of his constitutional to due trial an and a rights by jury, process, impartial reliable death verdict.
CALJIC No. 2.71.5 as informed the given that should find jury you “[i]f one, from the evidence that there an occasion when a defendant: under two, conditions which afforded him an reasonably failed opportunity reply; him, to make a denial in the face of an accusation or in directly expressed his him with the crime for which this defendant now is on presence charging trial, commission, and; three, to connect him with he tending this nature, heard accusation and understood its then the circumstance his silence on that occasion be considered him as an may against indicating [|] admission that the accusation thus made was true. Evidence of an truth, statement is not received for the its but accusatory purpose proving it only as to a silence of the accused in the face it. supplies meaning [][] Unless find that a you defendant’s silence at the time indicated an admission true, statement was must his accusatory you entirely disregard statement.” instruction,
Under this could jury consider evidence of the letter to infer an admission defendant Johnston’s accusations were true only letter, if it found that defendant read her understood preliminarily its contents to be an accusation that he committed the store and was liquor robbery, reasonably afforded an the accusation but failed to do so. opportunity deny above, As discussed we concluded the evidence was insufficient to establish addition, these facts. In predicate was instructed under jury CALJIC No. 17.31 to an disregard instruction that to facts determined not to applies exist. We (Guerra, followed presume the instructions it was given. supra, circumstances, Cal.4th at Under these reasonable jury would have (See accorded no to the People v. Guiton weight evidence. 4 Cal.4th analyzing 45] [“In error, effect court does not assume an prejudicial ... appellate *30 Moreover, unreasonable jury.”].) because the instruction had no to application letter, the facts alleged defendant’s claim that the instructional error reduced the reasons, burden prosecution’s is without merit. For these proof we conclude the error in under CALJIC instructing No. 2.71.5 was (Watson, 836; harmless. supra, 46 Cal.2d v. Beltran at see People (2013) 56 p. ‘ 935, 503, Cal.4th 955 301 P.3d Cal.Rptr.3d [157 1120] [“ “[misdirection incorrect, the jury, including ambiguous, conflicting, omitted wrongly instructions that do not amount to federal constitutional error are reviewed under the harmless error standard ”].) articulated” in Watson’
c. Loss Letter to Johnston of Defendant’s Defendant contends that law enforcement committed error in prejudicial to disclose failing to the defense the contents of defendant’s letter to Johnston and that law enforcement’s loss or destruction subsequent of his letter violated his to rights a defense and due present to process pursuant v. 51, Youngblood (1988) 281, Arizona 488 U.S. L.Ed.2d 109 S.Ct. [102 Trombetta, 333], supra, at U.S. pages 488-489.
“ ' “Law enforcement have a under agencies the due duty, process Amendment, clause of the Fourteenth evidence ‘that preserve might a role expected play significant in the defense.’ To suspect’s [Citations.] fall within the of this scope duty, evidence ‘must both an possess value that exculpatory before the evidence apparent destroyed, be of such nature that the defendant would be unable to obtain comparable evidence other by available reasonably means.’ The state’s re [Citations.] is further limited when sponsibility the defendant’s is to ‘the failure challenge more can be said of which no material evidentiary State to preserve tests, might the results of which have been subjected than that it could case, ‘unless a criminal In such the defendant.’ have exonerated [Citation.] failure to on the of the police, preserve can show bad faith part defendant due a denial of process evidence does not constitute useful potentially ” 107, 166 v. Farnam (People Cal.Rptr.2d 28 Cal.4th law.’ [121 988].) due claim in the trial court. His process did not raise this issue Defendant under Trombetta is of additional a trial court to consider type requires on a ruling than that standard different applied facts and legal apply Boyer, 17.) v. People supra, fn. 38 Cal.4th (See p. hearsay objection. was admissible as Therefore, that Johnston’s letter ruling the trial court’s of the claim led to a necessarily rejection not have admission would adoptive law enforcement had of law because was denied due process that defendant {Ibid.) conclude defendant’s we Accordingly, his letter to Johnston. misplaced below. Trombetta failed to raise the issue because defendant claim is forfeited Duran, v. supra, (People 16 Cal.3d at event, not shown merit. Defendant has In the claim is without any “ before the value that was apparent letter had ‘an exculpatory
that his ” Pastor Cruz was destroyed evidence [or lost].’ defendant’s letter to 13].) Assuming Cal.App.4th defense, in the record suggests to his nothing was useful Johnston potentially enforcement, absence law and its faith on the part it was lost due to bad evidence all ‘to obtain comparable “did not defendant deny opportunity *31 ” 908, v. Thomas (People (2012) 54 Cal.4th means.’ other available reasonably Trombetta, supra, U.S at 366, 361], 467 P.3d quoting Cal.Rptr.3d 929 [144 and, had on the issue cross-examine Johnston 489.) Defendant was able to p. to so, of his letter testified to the nature to do he could have he chosen if in the circumstance infirmity no constitutional Johnston. “There is by on the information presented [the defendant had to expand wanted himself, he have letter,] might and ... by testifying contents of Johnston’s the trial testify between his right in the of choosing been position put ‘ “ with criminal ... is replete silent. ‘The process and his to remain right course as which of difficult “making judgments” situations requiring even of constitu have a may right, a defendant Although follow. [Citation.] chooses, dimensions, the Constitution he whichever course to follow tional ” choose.’ him to [Citations.]’ that token forbid always requiring does not by 746, 99, 153 v. Letner and Tobin (People Cal.Rptr.3d 50 Cal.4th [112 62].)” (Thomas, supra, fn. Cal.4th at 235 P.3d Corroboration 5. Accomplice
The trial court instructed the that Marcia jury as a accomplice matter of law. Defendant contends his first murder and degree attempted robbery convictions and the attempted robbery felony-murder special- circumstance finding must be reversed because were based on Marcia’s they uncorroborated The contention testimony. is without merit.
Section 1111 “A provides: conviction be had upon [cannot] of an testimony unless it be accomplice corroborated such other evi by dence as shall tend to connect the defendant with the commission of the “ offense . . . .” evidence be ‘Corroborating may slight, may entirely circumstantial, and need not be sufficient to establish element of the every offense.’ charged The evidence is ‘sufficient if it tends to connect [Citation.] the defendant with the crime in such a as to way satisfy ” accomplice the truth.’ telling Gonzales Soliz Cal.4th 543].) Marcia testified as crimes, follows. On the morning defendant arrived at her house wearing black-and-white Nike Air T-shirt and black with a jeans, Clock tucked in the waistband. Defendant articulated his plan Marcia, Johnson, rob the store to liquor each a Taylor assigned task. Marcia identified Wallace’s van as the one used to drive Taylor them. Defendant had the Clock in his waistband when he left house and entered the van. Taylor parked couple blocks from the store. Marcia out and got inside, walked to the around, store. Once she looked some bought candy, returned to the van. Marcia informed defendant inside the store there were two cameras and van, one clerk. She in the got and defendant and Johnson out. got Defendant had a in his waistband bulge as he walked with Johnson toward the store. liquor After she heard a she watched gunshot, defendant and Johnson ran to the van. both They reentered the van. Taylor then drove to a house in Beach Long where the met Johnston. group
Marcia’s testimony corroborated sufficiently other evidence con- necting defendant to the and the attempted robbery murder at Eddie’s. *32 Defendant stole the murder the weapon during Riteway and the robbery, loaded murder was found in weapon defendant’s bedroom closet one week after the murder. Eddie’s surveillance shows two videotape African-American men and the entering crime, at leaving store the time of the liquor and defendant is African-American. One of the men wore a black T-shirt with a front, white Air large Nike the logo on and found a similar police shirt in defendant’s bedroom one week after the crimes. evidence that Additionally, defendant in the participated robbery of the clerk in Riteway which a was gun intended to rob the clerk an inference that defendant reasonably used supports the from at defendant shot him with Clock stolen Eddie’s when working Riteway. corrobo- conclude the record contains more than evidence that ample
We Marcia’s defendant’s convictions for first degree rates testimony supports as the attempted robbery felony- murder and well as for robbery, attempted asserts, if, defendant section finding. murder Even as special-circumstance Hicks v. Oklahoma under 447 U.S. 1111 creates a interest” “liberty 2227], right L.Ed.2d 100 S.Ct. his federal constitutional based of an testimony due not violated on uncorroborated process accomplice. Store
6. Still the Photographs Liquor Videotape from two admitting Defendant contends that the trial court erred prejudicially store using still that were from the printed liquor videotape photographs the at Corporation (Aerospace). Assertedly, photo- equipment Aerospace were and the failed foundation. lay enhanced graphs prosecution proper merit. The contention is without Background
a. Factual that she at Eddie’s within after Officer testified arrived minutes Holdredge the the obtained at shooting, police the that she viewed surveillance videotape scene, she, crime Officer and that it what occurred when accurately portrayed Romero, Jorge the Beach Police Long Sergeant Miller were inside store. he the at the station police Cisneros testified that viewed videotape 43A as the two still identified exhibits Nos. and 43B People’s photographs the He the station. police that were from printed videotape using equipment necks of shown on the film were not the heads and the subjects explained the the entire visible on still because VCR “did the display picture prints film,” is, (i.e., and bottom” film margins) “top portions visible. were not went to still
Sergeant Aerospace requested photographs Cisneros He and watched one of from the remained at Aerospace printed videotape. to a VCR that was connected its insert in a employees videotape monitor, monitor and a Cisneros described printer. Aerospace computer, the one station to view larger screen than used at having police Cisneros, “the videotape when videotape. According played, on the screen” of what was on that video did tape appear computer picture VCR,” the images including and it showed “the full film on length he wanted the film. He frames recorded in margins pointed *33 and the the printed, employee stills exhibits Nos. 41 and printed (People’s 42). Cisneros testified that the difference between the that were shown images on the the at the photographs printed using station equipment police those shown on the the photographs printed using Aerospace equipment necks, that the latter showed defendant’s and Johnson’s heads and whereas the former did not. Cisneros said that informed him that Aerospace personnel could “they not do any enhancements to the video. we did like I get, [B]ut said, film, we could see more of the I believe because of the we [equipment] were using.” Cisneros did not “ask that of the action any videotape] [on admissible, altered.” In ruling evidence was the trial court found that frame, show the whole “Aerospace equipment Beach Long [could] [that] Police show a Department only and that the portion,” photographs [could] enhanced. had not been
b. Discussion “No or film has value photograph any in the absence of a proper foundation. It is to know necessary when it was taken and that it is accurate and truly represents what it to show. It becomes purports probative only upon that it is assumption relevant and accurate.” (People Bowley (1963) 59 v. 855, Cal.2d (Bowley).) Cal.Rptr. [31 The rule general 591] is that a is admissible a photograph that it upon showing accurately depicts (Ibid.; what it Code, purportedly shows. see Evid. is a photograph §§ [a “[w]riting”], 1400 of a (a) means writing [“Authentication introduction of evidence sufficient to sustain a that it finding that the writing proponent of the evidence (b) claims it is or the establishment of such facts by other any means law.”].) provided by “This is shown usually of the by testimony However, one who took the picture. this is not necessary it is well settled that the be made showing may by who testimony anyone knows that the picture correctly what it depicts (People Doggett purports represent.” (1948) 83 792]; Cal.App.2d P.2d see Bowley, supra, 59 Cal.2d 860-861, at pp. citing Doggett with approval.)
Evidence Code section (a), subdivision establishes rebuttable presumption printed representation images stored on a video or “[a] digital medium is to be an presumed accurate of the it representation images purports represent.” affects the burden presumption and is proof rebutted showing “printed representation stored on images video or medium (Ibid.) digital is inaccurate or [the] unreliable.” The burden then shifts to the of the proponent printed representation prove by preponderance evidence that it accurately represents existence and content of the (Ibid.) on the images video or medium. digital If the proponent of the evidence fails to his carry burden of showing printed representation shows, accurately what it depicts the evidence purportedly is inadmissible for lack of (Bowley, foundation. supra, adequate Cal.2d at 860-861.) pp. *34 evidence, a may admitted photograph
Once authenticated and into properly or as testimony used as evidence to a witness’s support be demonstrative at of what shown. 59 Cal.2d (Bowley, supra, evidence probative the of admissibility A trial court’s on evidence 860-861.) ruling pp. be on absent an abuse of discretion. will not disturbed appeal photographs v. Rountree P.3d (2013) 56 Cal.4th 150].)
Here, and into the authenticated admitted still were photographs properly retrieved from the evidence. Officer viewed the Holdredge police videotape her and at the scene and testified it conduct accurately depicted VCR crime and the after the that of Officer Romero Miller inside store immediately Thus, shown to an accurate shooting. videotape representation the was be, a the that occurred Eddie’s what it to events inside purported recording the the at or near time of shooting. addition, at that the still
In Cisneros testified Sergeant photographs printed on the that Officer images Holdredge the stored Aerospace videotape depicted the authenticated. He the explained Aerospace photographs depicted the and necks because the could heads suspects’ company’s equipment print in of the of the recorded stored the images margins videotape, portion not. used at the station could Under these whereas police equipment circumstances, established that the we conclude the photographs prosecution on the and images at recorded depicted videotape, printed Aerospace (Evid. to be of those images. therefore were accurate representations presumed Code, were 1553.) Defendant’s mere speculation photographs § reasons, For enhanced could not rebut this these presumption. manipulated authenticated, the trial conclude were and adequately we the photographs admitting did not its in them. court abuse discretion Robbery the Riteway Evidence of 7. when, trial error despite
Defendant claims the court committed prejudicial to to the robbery stipulate defendant’s willingness plead guilty Riteway court in that he obtained the used crime gun capital robbery, defendant was cross-admitted evidence to Riteway robbery prove Defendant of the murder Eddie’s. charged attempted robbery guilty its trial erred in to failing give claims the court alternatively prejudicially other evidence. instruction on the crimes limiting promised a. Factual and Procedural Background introduced, made a motion any Before evidence robbery Riteway capital to consider evidence permit Johnson, defendant, She evidence relevant to show charges. argued acted to a and entered Eddie’s common or scheme Taylor pursuant plan with the intent Defendant to the guilty Riteway rob. offered plead he obtained the crime robbery gun capital used stipulate *35 offer conditioned trial court that finding Defendant’s on the robbery. plea the evidence not under Code Riteway admissible Evidence robbery 1101, (b). section further evidence any regarding subdivision Counsel argued than of a to Riteway robbery other the fact that robbery guilty charge plea and a be would be stipulation gun about would inadmissible because it under Evidence section prejudicial Code 352. unduly motion, The court that granted ruling evidence of the prosecutor’s robbery was relevant to intent and with to Riteway knowledge regard prove 1101, charges (b) under section of Evidence Code section and that capital the evidence was not within the unduly prejudicial meaning Evidence Code offer, section 352. In to that defendant withdrew his and response ruling, plea the trial court informed that it would parties instruction as to give defendant on the Johnson for which the could could purposes jury not consider the Riteway evidence with to the store robbery regard liquor deliberations, Prior to charges. gave court instruction as to limiting only that Johnson informed the it could consider the evidence on jury the issues intent, identity, common plan, knowledge.
b. Discussion We first consider whether trial court erred in admitting the Riteway evidence to robbery defendant’s involvement in store crimes. prove liquor
“Unless evidence is for a admitted limited purpose, against specific party, evidence admitted at trial be may generally considered any A this rule is that the is free to purpose. corollary its apply factual on one findings count other count which are deciding any those facts 1152, relevant.” (People v. Villatoro (2012) 54 Cal.4th 1170 Cal.Rptr.3d [144 401, 390], P.3d omitted.) fn. “One of limited arises example admissibility character, in the context of other crimes evidence. Evidence aof person’s evidence, also known as is inadmissible conduct propensity prove with that character conformity trait. is familiar ban on This [Citations.] evidence: of other cannot be admitted propensity generally [Evidence crimes] the defendant to commit prove disposed crimes. [Evidence Code] 1101[, (a) codifies this rule. general Notwithstanding [s]ection subdivision] rule, 1101, (b) section . . subdivision . clarifies that [Evidence Code] can be admitted for other crimes such relevant purposes, [other evidence] motive, intent, on, proving and so but admitted opportunity, may [it] (Id. had to commit similar bad acts.” the defendant prove disposition 1170-1171, omitted.) fn. pp. identity where is conceded or assumed
“Evidence of is admissible it someone, committed order to charged prove offense was 380, Ewoldt perpetrator.” (People v. 7 Cal.4th defendant was the 646, 757].) of other admissibility 867 P.2d fn. Cal.Rptr.2d [27 this “turns on that the share proof crimes evidence for purpose [incidents] distinctive common features to raise an inference of identity.” sufficient Lindberg Cal.4th “ 664], added.) We often commented that italics have pattern ‘[t]he so to be like a of the crimes must be unusual and distinctive as characteristics ” (Ewoldt, supra, 7 Cal.4th at signature.’ *36 defendant, male, Here, African-American that the evidence established robbery, the and the same Clock Riteway stole a Clock handgun during at after the was to and kill Moon Eddie’s one month nearly used shoot the The evidence further established that same stolen Clock Riteway robbery. at was in defendant’s closet one week after the murder found loaded bedroom The also that defendant mentioned the Penal Code Eddie’s. evidence revealed at (§ 187) the and that the murder during Riteway robbery, section for murder an African-American man the Clock stolen by using Eddie’s was committed at of the distinctive shared features between the crimes Riteway. from In light and related to the evidence of the circum- handgun, Eddie’s Clock Riteway inference the the reasonable surrounding Riteway robbery supports stances the and the Clock Riteway that the individual who committed stole robbery in (1) the who had a Clock tucked his Riteway from same person Eddie’s, (2) one of the two before the murder at was waistband hours Eddie’s, and (3) the Clock murder the clerk at who used stolen to perpetrators the murder. the loaded in his bedroom soon after stolen Clock possessed Therefore, the evidence Riteway robbery we evidence related to conclude charges. to store was to the issue of with the identity regard liquor relevant also was relevant to the store liquor The evidence Riteway robbery intent, the “In to prove on the issue of intent. order to admissible charges to similar to the offense charged misconduct must be uncharged sufficiently acted with the same intent the inference the defendant probably support (People supra, v. Lindberg, Cal.4th at 45 in each instance. [Citations.]” “ disposed to not that the actor is ‘The inference to be drawn is commit, that, instead, acts; inference light to be drawn is such the event, actor, event, the intent the the must have had first the at time of second Gallego (People to him the by attributed prosecution.’ [Citations.]” 115, 169].) P.2d Cal.Rptr. Cal.3d 171 [276 the defendant was one of two individuals who Assuming planned 12, the fact that committed the acts that occurred at the store on June liquor he committed was relevant to the of intent with Riteway the issue robbery connected store regard charge with attempted robbery liquor cases, clerk murder. In both an armed individual confronted a lone behind the checkout counter of a small was used during daytime. against store Force both Clock clerks. The stolen defendant by during Riteway robbery similarities, used one of the these store. Based on perpetrators liquor evidence of the Riteway would a reasonable inference that robbery support defendant harbored similar intent rob in each instance. concluded evidence of the admissible on the
Having
Riteway robbery was
issues of
identity
intent on the
store
we next
liquor
charges,13
address
defendant’s claim
his
accept
offer
required
plea
he
stipulation regarding
gun
Riteway
stole during
robbery.
“The
mle is that the
case
general
a criminal
cannot be
prosecution
if the effect would
compelled
accept
be to
state’s
stipulation
deprive
case of its
v. Edelbacher
and forcefulness.”
persuasiveness
Cal.3d
1].)
factual
Cal.Rptr.
key
disputes
store,
this trial were whether defendant committed the crimes at the liquor
and,
so,
if
whether he acted with an intent
to rob the
store’s clerk.
liquor
offer
Defendant’s
plea
stipulation
rob
proposed
regarding
Riteway
would
bery
not have included an admission on either of
issues. Had the
these
*37
facts of the Riteway
been
from
as the
robbery
withheld
the
result of a
jury
the
stipulation,
would have been
prosecution
significant
of
circum
deprived
stantial evidence material to the
store crimes. There were no
liquor
percipient
witnesses to the
store
the surveillance
liquor
crimes
showed
videotape only
store,
the
and
entering
the
and
suspects
exiting
liquor
had
nothing
apparently
circumstances,
been taken
the
from
store. Under
these
evidence of the
Riteway robbery was crucial
the
in
that
prosecution
demonstrating
defendant and Johnson
a similar intent to
possessed
rob the
store in a
liquor
fashion,
similar
in order to
People v.
charge
the
of
In
prove
robbery.
attempted
Arias
770,
(1996)
980],
Defendant’s claim motion to exclude the details its defendant’s denying abuse discretion the under Evidence Code section 352. charges the Riteway robbery capital were from the incidents counts robbery attempted robbery separate 954; (§ People the same v. Walker as crimes of class joined charging properly 863, 70]), details P.2d and the (1988) 47 Cal.3d Cal.Rptr. [253 likely the carried out were not robbery of the manner in which Riteway because, the defendant’s attorney acknowledged, to inflame as jury’s passions a robbery.” the “standard Riteway robbery next claim that the trial court committed prejudi-
We address defendant’s admitted the error to instruct the that evidence to jury prove cial failing to his to commit could not considered Riteway robbery prove propensity it the trial court had informed the parties the store crimes. liquor Although defendant, the court instruction as to both Johnson give limiting would the to when it instruction only gave limiting prior referred to Johnson limiting the to deliberations. Because trial court was obligated provide instruction, either a the issue to by failing request defendant forfeited or a new instruction applied specifi- correction instruction given Freeman 8 Cal.4th to defendant. cally charges against event, 249].) In error any any instruction as to defendant was harmless failing give limiting given evidence with Riteway robbery regard uses multiple permissible any argument by prosecutor urging store absence of charges, liquor robberies, the defendant’s to commit infer propensity presumption innocence that the followed jurors regarding presumption instructions doubt, evidence of defendant’s overwhelming guilt and reasonable charges. store liquor *38 8. No. 17.41.1 CALJIC 17.41.1, the the jury trial court instructed
Pursuant to CALJIC No.
at all times
their
during
of a trial
that jurors,
integrity
requires
“[t]he
deliberations,
Accord
as
these instructions.
conduct themselves
required
or
refuses
deliberate
should it occur
to
ingly,
any juror
expresses
based
decide the
in this guilt
intention to
the law or to
case
phase
disregard
basis,
it is the obligation
or
other
any
improper
on penalty
punishment,
Defendant
the Court of the situation.”
immediately
the other
advise
jurors
his federal and state constitutional
on
infringed
contends this instruction
verdict.
to unanimous
right
to trial
and his state constitutional
rights
by jury
Const.,
I,
Const.,
Amends.;
art.
& 14th
Cal.
(U.S.
6th
§
v.
People
we
use of this instruction in future trials in
Although
disapproved
Engelman
862,
209],
(2002)
held
Defendant contends the cumulative effect of the asserted errors guilt phase reversal requires regardless error. To prejudicial impact any single the extent there are instances in which we have found error or assumed its existence, we have concluded no resulted. We do not find reversible prejudice error by considering claims cumulatively.
C. Penalty Retrial) Phase Issues (Penalty
1. B atson/Wheeler retrial, Defendant claims that at the the trial court penalty erroneously v. Wheeler People denied his two motions under (1978) 22 Cal.3d 258 [148 (Wheeler) 890, 583 P.2d Cal.Rptr. based on the prosecutor’s assertedly 748] discriminatory use of to remove African-American peremptory challenges J.S., Jurors F.J. and Prospective in violation of his state constitutional right trial aby drawn from a cross-section of the representative community Const., I, (Cal. 16). art. time For the first on defendant claims the appeal, § erroneous denial of his Wheeler motions him of his Fourteenth deprived (Batson Kentucky Amendment right of the laws. equal protection (Batson).)14 476 U.S. L.Ed.2d 106 S.Ct. For the reasons we [90 1712] below, Batson/Wheeler the trial court did not err in explain denying motions.15 motions, Although Wheeler when a Wheeler only making defendant cited appeal his as motion under Wheeler and Batson. v. Yeoman motion is treated 31 Cal.4th 1166].) 117-118 We refer to the defense motions
Batson/Wheeler motions throughout opinion. this by denying Because we find the trial court did err either of defendant’s *39 motions, Batson/Wheeler reject boilerplate we defendant’s claims of other violations various People v. Roldan (See (2005) and rights. state federal constitutional 35 Cal.4th 703 [27 Yeoman, 289]; People supra, 31 Cal.4th at Procedural Background Factual and
a. F.J. and J.S. Jurors Prospective dire, orally ques- jurors responded voir prospective During general on a on questions appeared court that were based the trial tions posed things, other Among to all jurors. which was provided printed questionnaire, and any if any, prior their occupation, were asked to state the jurors from their current employment. different substantially that was occupation he from school high graduating F.J. revealed that since Juror Prospective had He (UPS) years. for 18 Parcel Service a driver with United had been in two had jury He prior experience held a position. never supervisory verdict, case, and a murder which had proceeded trials: a robbery criminal that the jurors He had felt frustrated case, a hung jury. had resulted in which a verdict. could not reach Bell, her Pacific circuits for designed telephone Juror J.S.
Prospective advancement career While she experienced for 30 years. employer she years, circuit for 20 designs in the use of computers trained others an order get put she would designer, As a was never supervisor. at Pacific before her employment in school and the circuit. While together Attorney’s the “District Bell, of Justice” or at the J.S. worked “Department had service them.” J.S. filing prior . . . Office” “handling transcripts trial, The criminal reached a verdict. civil each of which in a criminal and a molestation; J.S. involved injury. the civil case personal child case concerned and listen to her deliberations during her she would express opinions said the views to accommodate her views change just but would jurors fellow others. Challenges Peremptory Juror F.J. Prospective challenge against exercised her fourth peremptory
After racially F.J., challenge objected defense counsel Juror Prospective in the African-Americans motivated, one or two only there remained noting in these that it “always inadequate court feel[s] venire. The trial responded look at my a D.A. hat and on Wheeler motions. Now Pm supposed put had a would have whether, a reasonable D.A. and see my opinion, *40 In noted that F.J. had life response, significant prosecutor “[n]o that indicates been strong decisionmaking skills. He’s experiences throughout driver, his a UPS never There is occupation, supervised anybody. nothing about his that that he can background indicates in a decision that—of engage this There . magnitude. is . . about his in a strength background; although, case, different I think he would be a wonderful but this is a type juror, where I’m penalty to be him to back a verdict of death. I going asking bring want The strong decisionmaking skills.” court then said its notes indicated driver, “since high school UPS no loading, supervisory experience, girlfriend children, sells two minor coaches a computers, golf, traveling basket- plays motion, ball team.” After the court denied the added that the prosecutor decision in the of a death far penalty phase case “is more stressful penalty case, and of greater than magnitude your and I bear that in mind ordinary when I excuse jurors.”
Prospective Juror J.S. excusal, Juror Following F.J.’s Prospective exercised several parties more When the peremptory challenges. prosecutor challenged Prospective J.S., Juror counsel made his second Batson/Wheeler motion. He that argued “[tjhere’s only two or three left in the in the audience. She seemed like group civil, an idea juror. She had two both—one one priors, [sic] criminal. There was a verdict. She has worked for many, at Pacific many, many years Bell. Worked her way She up. She trains. supervised people. She can obviously make decisions. She worked—and just otherwise seems to be a good juror. [1] I can’t see any reason why the District Attorney would not accept her, other than the fact she is a black female. And I would note that the last [][] which the two were hung, hangs black females. But that should not be a basis.”
The trial court reminded counsel that the had that she prosecutor explained “relied on life’s criteria” earlier in experience excusing Juror F.J. Prospective and stated that it did not recall Juror J.S. Prospective “supervised The anybody.” trial court she trained on how to use people “believefd] [had] circuits.” computer design comment, After the court invited the she stated that prosecutor “my recollection is that she said she did not specifically supervise anybody.” felt J.S. had a “misleading” job she “makes no description, decisions. She is given and she specifications information into a inputs She is computer. basically more form of a clerk” sophisticated filing has “held but clerk She nothing has trained individuals in positions. terms of data. She is a data think inputting entry I don’t specialist, basically, [f] fact she trains in how data people they makes her input specifically qualified *41 stressful, to be a very . . . This is decision-mating jobs. going for high-stress are seasoned decision individuals who requires deliberative process [that] The fear factor of a decision. tough could handle stress They makers. make, can decision to that and difficult time stressful any you get involved somebody when you get of the deliberation process in terms very crippling . . the And that’s one of . have that room who doesn’t experience. in the jury I’ve looked at her job in terms of a juror, that I look at things [f] many were to not tick in clerk If I has been basically positions. She description. her, is an African American. would be because she only it seems to me that it or the in one direction that I’m to discriminate going And I don’t believe American. . . . because she is African to her simply other. I’m not going keep that can that tells me she about her nothing background absolutely [T]here’s in this And that’s very important type in a situation. high-stress operate is life and death.” case where issue of racial to make a facie case found defendant had failed prima
The court J.S.’s argued counsel to further Counsel argue. but permitted discrimination Bell, em- with Pacific her including 30-year employment life experiences, Justice, at Pacific and her 20-year experience at the Department ployment her designs and circuit provided others in the use of training computers Bell decisions, difficult and thus she was qualified to make adequate experience sit as capital juror. clerk” with the that J.S. had been a “filing
The trial court clarified of whether it would have Justice and stated that regardless Department it found challenges, criteria to exercise used the peremptory prosecutor’s And her use of “a non-race based criteria. it was significant category was consistent with that non-suspect as to this juror peremptory use.” just the record that “it’s not to add to
The was permitted prosecutor handled stressful for how they that I look for. I look positions supervisory or had to decide “whether their life.” She said she situations incidents] the decision to to be fearless in has it takes not an individual what juror moment, a deliberative basically and to engage handle the stress of she has Noting an enormous magnitude.” a decision of that involves process interview, at, she dire is like a job can look voir limited she things in this case.” concluded, to the decision “I don’t believe that is up [J.S.] category the D.A. is not using protected it was “confident court said to make further opportunity defense gave basis for her peremptories” court, this juror I “May inquire, counsel asked the a record. Defense life, in her had to deal with stress she has ever whether or not asked “I recall that specific question. don’t The trial court stated specifically?” then objected, But there were about her life.” The questions it recognize “How a deals with stress and how as stress stating, they person on; I their ability will from individual to individual. I know what vary go at, make I look their including ability deal with stress is one of things in making decisions. That includes information experience processing of decision decisions. It’s that more terms my people opinion experienced reasons.” The trial court makers make better decisions for appropriate denied the voir dire and denied the motion. Batson/Wheeler request reopen time, At that for the retrial included 11 Caucasians and one penalty Caucasians, African-American. The alternate included two one jurors *42 African-American, and an individual who have been or may Hispanic Filipino.
b. Discussion The federal and the use of state Constitutions prohibit peremptory to remove challenges based on prospective jurors solely impermissible group 89; Wheeler, (Batson, bias. at 22 at 476 U.S. Cal.3d supra, p. supra, 276-277.) We conduct the to review claims of Batson pp. three-step inquiry “First, determine bias based on race. the trial court alleged must group whether defendant has made a facie that the showing prima prosecutor Second, exercised based on race. if the peremptory challenge showing made, the burden shifts to the to demonstrate that the prosecutor challenges Third, were exercised for a race-neutral reason. the court determines whether the defendant has discrimination. The ultimate burden of proven purposeful with, from, racial never persuasion regarding motivation rests shifts of the strike. opponent also three-step procedure applies [Citation.] 602, state constitutional 44 (2008) claims.” v. Lenix Cal.4th 612-613 (People 98, (Lenix).) P.3d 187 Cal.Rptr.3d [80 946] excusal,
In F.J.’s ruling defendant’s Batson/Wheeler motion concerning the court ruled that he failed to make a facie of explicitly showing prima Then, FJ, discrimination. after stated her reasons for prosecutor excusing notes, driver, the trial court stated that UPS “my high loading, since school children, no sells two minor supervisory girlfriend experience, computers, so, golf, coaches a basketball team.” In the trial court plays traveling doing with the did agreed F.J. not have impliedly supervisory and found the experience justification genuine. prosecutor’s J.S., In the trial denying defendant’s Batson/Wheeler motion regarding court stated that a facie has not been made.” showing “prima group [of bias] It recalled that J.S. had others at Pacific Bell “on how to training experience use the but not The court circuits” computer design supervising employees. also found that the a “non-race based expressly prosecutor’s justification that her excusal of J.S. was “consistent with non-suspect criteria” and statements evince its satisfaction Taken court’s category.” together, and credible. genuine were prosecutor’s explanations determines make a that defendant did not Where the trial court on, agreement bias and also rules indicates showing facie prima group with, on the ultimate or otherwise passes judgment question satisfaction discrimination, as a stage/third stage the case is described first purposeful and the whether a defendant established Batson/Wheeler hybrid, question (2012) Riccardi bias is rendered moot. facie case group prima 84, 758, 281 P.3d whether defend [question Cal.4th Cal.Rptr.3d [144 1] discrimination rendered showing ant established facie purposeful prima reasons, moot where “the court with agreed prosecutor’s expressly thereafter with the reasons agree prosecutor’s given appeared implicitly Lenix, motions”]; defendant’s Wheeler supra, response subsequent [the] 352, 613, 8, U.S. fn. v. New York citing Cal.4th Hernandez 1859]; v. Mills 48 Cal.4th L.Ed.2d 111 S.Ct. see People 359 [114 whether [question prima 173-174 276] made is mooted where the trial “passed facie case of bias has been group *43 for the challenges on the actual reasons judgment peremptory prosecutor’s that the court was (the noting third of a Batson stage expressly inquiry), the the the given by ‘satisfied . . . from explanation prosecutor’ Here, race”].) indicated for the was not based on as challenges motivation motions, above, the trial with to each of defendant’s Batson/Wheeler respect ruled that the stated reasons were genuine court ultimately prosecutor’s motion, neutral, therefore, to each whether defendant race as question facie of racial discrimination is rendered moot. showing made prima “ no on whether defense counsel estab ‘we Accordingly, express opinion to Batson’s third lished a facie case of discrimination and instead skip prima African- to evaluate the reasons for stage dismissing prosecutor’s [the] ” (Riccardi, 787.) at American 54 Cal.4th jurors.’ supra, p. prospective ‘the issue comes “At the third of Wheeler/Batson stage inquiry, trial finds the race-neutral explana down to whether the court prosecutor’s factors, the can be measured other by, among tions to be credible. Credibility demeanor; reasonable, how or how explana by improbable, prosecutor’s are; basis in accepted and whether the rationale has some tions proffered ” (Lenix, a trial 613.) 44 Cal.4th at In reviewing trial strategy.’ supra, p. motion, “only we examine whether court’s denial of a Batson/Wheeler “ (Lenix ‘We evidence its conclusions.” p. substantial supports in a constitutional that a uses peremptory challenges presume prosecutor bona distinguish deference to the trial court’s ability manner give great court makes a So as the trial long fide reasons from sham excuses. [Citation.] evaluate the nondiscriminatory justifications sincere and reasoned effort to ” offered, on entitled to deference appeal. [Citation.]’ conclusions are its 1].) Cal.4th Manibusan deference to the normal give contends we should not Defendant first claim to biased. Defendant’s the trial court was trial court’s because rulings Batson/Wheeler ruling the fact that notwithstanding, the contrary J.S., gave mentioned the reasons prosecutor the trial court motion as asserts, not, defendant F.J. does her earlier decision to challenge for substantial next consider whether its We neutrality. establish it abandoned that the provided court’s rulings prosecutor the trial evidence supports and J.S. for F.J. challenging race-neutral reasons plausible, (1) Statistical Evidence for a challenge
“If a articulates basis peremptory prosecutor race, members of a certain in the exclusion of results disproportionate evidence that the stated prosecutor’s trial consider that fact as judge may York, (Hernandez racial v.New reason constitutes a discrimination.” pretext contends J.).) of Defendant Kennedy, 500 U.S. at opn. supra, (plur. challenges evidence demonstrates that the prosecutor’s peremptory statistical to F.J. and J.S. were motivated. racially African-Americans,
Here, included four or five venire 59-member of the venire. The prosecutor 6.7 or 8.5 representing approximately percent (two of (two 11) to remove 40 percent used 18.2 of her percent challenges African-Americans. The five) (two four) of the available percent non-African-Americans used two additional challenges against prosecutor Thus, alternate before jurors. accepting panel, selection of four during 13) (two her challenges a total of 15.4 exercised percent *44 on One African-American sat African-American jurors. against prospective and one sat as an alternate.16 jury, In discrimination. We do not find these numbers suggest improper 422, Pearson, Cal.4th at we held prosecutor’s v. 56 People supra, page (50 a against group two challenges percent) use of one of peremptory 24-member did not appear 12.5 panel only percent comprising “ ” and do not cause concern The numbers here are similar ‘suspicious.’ addition, that the sole In we observe were motivated. challenges racially 8.3 jury, approxi African-American on the jury represented percent Further, venire. African-Americans on the the same mately percentage 16 trial penalty to commencement of jury proceedings prior selection were held Further excused, and the other due to a death jurors one for medical reasons after two alternate were from those statistical evidence family. support Defendant does not his claim with prosecutor under which the complain he about the circumstances proceedings nor does challenge during proceedings. peremptory exercised a those 1316 conclusive,
while not the fact that the included an African-American “is an indication of faith good [by prosecutor] exercising peremptories.” 137, 762, (1994) v. Turner Cal.4th (People 168 878 P.2d Cal.Rptr.2d [32 521].) statistics,
After the relevant we are not that a reviewing persuaded dispro number of African-Americans were excluded from the How portionate jury. ever, unconstitutional, because even a lone race-based is challenge we bear in mind those statistics while for chal examining prosecutor’s explanation 346, FJ. and J.S. v. lenging (People Jones 51 Cal.4th 363 [121 1, 82].) P.3d (2) The Prosecutor’s Explanations ‘ “A asked to his conduct must a “clear explain provide of his reasonably specific” explanation “legitimate reasons” exercis ” 613, Batson, ing (Lenix, 44 Cal.4th at challenges.’ supra, p. quoting “Nevertheless, 20.) 476 U.S. at supra, fn. a p. although prosecutor may on number of rely any bases select reason is one that jurors, legitimate (Lenix, 613.) does not deny Cal.4th at A equal protection.” supra, p. “a neutral to the peremptory challenge may justified by related explanation (Batson, case to be tried.” particular 98.) 476 U.S. at A supra, p. peremptory (see, be based on challenge may v. Johnson employment e.g., People 1194, 1216, 47 Cal.3d 1047]), Cal.Rptr. “ ‘hunches[,]’ and even exclusion ‘arbitrary’ so as the permissible, long Turner, reasons are not based bias” v. impermissible group (People supra, 165). 8 Cal.4th at The basis for a “the p. challenge may from range virtually (Wheeler, certain to the 275) 22 Cal.3d at highly speculative” supra, p. reason, neutral, Arias, “even a ‘trivial’ if will suffice.” genuine 13 Cal.4th at supra, p. Wheeler, 22 Cal.3d at
Citing supra, defendant contends page reasons were not prosecutor’s valid because a lack of supervisory does not reflect a bias nor does it experience specific against prosecution, indicate the will be unable to juror deliberate in the case at hand. While Wheeler are challenges to remove explained peremptory permissible who harbors “a bias . . . to the prospective juror relating specific particular (Wheeler, case on trial or the thereto” witnesses Cal.3d parties supra, 276), it also that “the recognized law allows removal of a biased juror by *45 stated; i.e., challenge for which no reason ‘need be in given,’ many publicly instances the . . . cannot of establish his reason normal methods party (id. by Therefore, 275). . . .” at it exercised in a proof as is p. long manner, a be based on nondiscriminatory peremptory challenge may specula tion that a he would be unable to decide a because prospective juror penalty or she lacked work supervisory experience.
Here, difficult who could make stated she desired jurors prosecutor a death case. It was of decisions such as those in penalty phase penalty has had that is demonstrated a who practical her belief this person quality have this that those who did not as a work experience supervisor hard The were to be able decide questions. prosecu- less to likely experience oral jurors’ responses tor further stated that because prospective court voir dire during general provided the trial used written questionnaire limited information about background prospective only personal factor relevant sufficient information she believed this jurors, provided in this case. challenges consider exercising peremptory course,
“The of a is on focus Batson/Wheeler inquiry, proper the race-neutral reasons for the genuineness given peremptory subjective those v. not on the reasonableness of reasons.” challenge, objective 31 Cal.4th Reynoso 852] service lacks a customer [prosecutor’s subjective opinion representative “of effectively educational serve as while experience juror, questionable challenge].) could form the basis of peremptory persuasiveness,” properly Therefore, a “can whose prosecutor challenge juror occupation, potential estimation, her the best would not render him or prosecutor’s subjective (Id. the case for juror being sit on which the selected.” type p.
If the in this her case exercised prosecutor genuinely peremptory because, estimation, had the in her neither F.J. nor J.S. challenges subjective stress” skills of a “high decisionmaking capital explana required juror, exercising tion constitutes valid and reason for entirely nondiscriminatory “an Reynoso, 31 Cal.4th at italics challenge^].” (People supra, [those] Here, omitted.) asked other non-African-American prospective defense, whether and the had jurors they supervisory apparently experience, worthy view that a factor sharing prosecutor’s experience supervisory consideration, the same from several other information sought prospective We conclude the record trial court’s conclu jurors. substantially supports that the F.J. prosecutor’s challenging sions explanations peremptorily and J.S. were and not motivated. genuine racially that, dissent the Batson/Wheeler making makes much fact defense asserted “the two the first were hangs counsel objection, [at trial] assertion, in the black females.” not otherwise Assuming supported record, accurate, it take it into the trial court was aware of and could at the account in its It does itself show intent ruling. discriminatory trial. second
(3) Comparative Analysis Defendant a of analysis contends FJ.’s J.S.’s comparative juror work with that of non-African-American experience eight jurors whom L.F., K.K., B.A., R.P., G.M., W.F., (W.B., M.C.) did not prosecutor challenge demonstrates that the FJ. and justifications challenging J.S. prosecutor’s that, were is evidence while to pretextual. juror analysis “Comparative subject limitations, inherent considered at reviewing must be when claims of error third when the defendant relies on such stage evidence [Batson/Wheeler]’s (Lenix, the record is adequate permit supra, comparisons.” circumstances, at 607.) Cal.4th “In must p. juror analysis those comparative even when analysis such an was not conducted performed appeal (Ibid.) below.” is but one form of juror analysis circumstan “[Comparative relevant, but tial evidence that is not on the of necessarily dispositive, issue (Id. true 622.) intentional discrimination.” at This because is p. appel “[o]n review, court, a late voir dire sits on a In the trial answer page transcript. however, advocates and trial watch and listen as the judges answer attention, it, attitude, delivered. subtle nuances Myriad may including shape interest, facial contact. ‘Even an body language, expression inflection eye ” Moreover, (Ibid.) in the voice can make a difference in the we meaning.’ recognized have “that it is a combination of rather than factors one any single which often leads the exercise of “the a challenge”; peremptory combination or mix of which seeks jurors lawyer a and often particular may, does, box”; are in the change as certain removed or seated and that jurors same be given “the factors used in a different evaluating juror may weight on the number of has at the time peremptory challenges lawyer depending of the exercise of the and the number challenge peremptory challenges Johnson, with the at remaining other side.” v. 47 Cal.3d supra, 1220.) “It is we good therefore with reason that and the United States Court deference to the trial give great court’s determination that Supreme use not for an or class bias peremptory challenges improper purpose.” (Id. at p.
“The ‘It high court stated: is true that are often the peremptori.es instinct, . Kentucky, Batson .. subjects supra, [page] 106 [476 U.S.] J., (Marshall, and it be hard can sometimes what the concurring), say issue, But reason is. when like race are in illegitimate grounds has reasons as he and stand or fall got state his best can on the simply reasons he A Batson does not call for plausibility gives. challenge mere exercise in rational basis. the stated reason not thinking any If does up hold its does not fade a trial up, because or pretextual significance judge, court, can reason that have been shown imagine appeals might up court cautioned a trial reviewing false.’ that efforts high [Citation.] *47 stating burden of the satisfy court to ‘substitute’ a reason will not prosecutor’s (Lenix, (Ibid.)” supra, 44 Cal.4th at a neutral racially explanation. 624-625.) pp. be to exam only contends that the criteria defendant
Preliminarily, and the the characterizations ined are analysis prosecutor’s using comparative However, unchallenged jurors. actual by challenged record of responses first on “[wjhen for the time juror analysis asked to in engage comparative not, indeed, to not turn a blind eye a court need must reviewing appeal, those other even if jurors the record discloses for not challenging reasons Jones, jurors.” similar are in some excused respects other jurors supra, 365-366.) legitimately This is so because a 51 Cal.4th at party pp. the but not another to whom same may challenge one prospective juror (Id. 365.) at “Two similar might give concern particular applies. p. panelists be offset might answer on a Yet the risk one given posed by panelist point. answers, behavior, juror, other attitudes or make one on experiences balance, realities, of and the human more less desirable. These complexity nature, an responses exceptionally make formulaic isolated comparison (Lenix, supra, finding.” medium to a trial court’s factual overturn poor 624.) Cal.4th p. we the
Before with our address analysis, question we proceed whether it is the oral non-African- responses consider appropriate his American that were after the trial court denied second jurors provided B.A., W.F., motion, is, R.P., and M.C. Jurors Prospective responses Lenix, . . As review circumscribed. . necessarily we stated is “appellate at the time trial is reviewed on the record it stands finding court’s [T]he (Lenix, supra, “If is 44 Cal.4th at [Batson/Wheeler] ruling made.” defendant believes that events should be considered by subsequent court, trial is consideration objection required renewed permit appellate (Ibid) Thus, if believed the of these defendant subsequent developments.” trial he could court should have considered any postruling developments, renewed his Batson/Wheeler have, have, claim. Because defend and should not, ant his that were jurors did reliance above responses motion forfeited. Nonethe after the trial court denied his second provided less, caution, jurors of these out of we consider responses prospective our below. comparison W.B.
Juror Beach School Huntington Juror W.B. a network technician for District, and his included network administration responsibilities computer in that troubleshooting. anyone position, He did computer supervise electrical management but he had worked in sales office previously There, wholesale business. he two to three supervised “warehouse-type” employees. Defendant this acknowledges juror’s but supervisory experience, asserts it should accorded little because for the five weight years prior trial, defendant’s held juror technical jobs required increased experi- However, ence and lacked supervisory responsibilities. prosecutor’s ques- tions indicate she concerned with work supervisory experience *48 not that be the general, such had to current experience juror’s or prospective most recent position.
Juror L.F. Juror L.F. as an worked administrative assistant for “off and Boeing on 20 years,” about workers’ handling compensation and medical claims and acting as “a buffer between the worker and the insurance carrier.” injured claims, she no Although made decisions on the or approval she rejection decisions, consulted with others on those and discussed provided input, with the information individual pertinent making ultimate decision. The have Juror prosecutor may reasonably viewed L.F. as someone with experi- circumstances, in ence decisions in making stressful and someone who would well with jurors work other as a team return a and verdict.
Juror G.M. Juror G.M. senior engineer was a for He consulting Refining. Tasco had never directly although he had and reviewed supervised people, directed work of contractors. He sometimes worked of a team. engineering The part may have found Juror G.M. more prosecutor reasonably favorable than FJ. and J.S. based on solely directing his experience reviewing others, the work decisions, as well as making independent, complex she believed indicated experience decide juror could difficult prospective questions.
Juror K.K. Juror K.K. Raytheon was a lab technician who had worked the areas of and electronic failure for 15 did metallurgy He not analysis years. supervise but employees, would each employees help other. on the Depending Juror K.K. receive from problem presented, might engineers instructions might instruct Juror others. K.K. had obtained an advance in finance degree that was related The job. to his have found that prosecutor may reasonably while Juror K.K. lacked his receive and supervisory experience, ability solve a give instructions demonstrated a problems continuing basis contrast, strong to make decisions. work ability F.J.’s and J.S.’s By experi- did ence to involve these skills. appear B.A.
Juror Previously, Frito-Lay a sales for company. Juror B.A. was representative for seven years. a school cafeteria manager high the assistant she had been merely because she never a true Defendant asserts this “was juror supervisor” time and on food was served properly was for “seeing responsible had she The doing explained their duties.” everybody revealed that generally looking supervisory responsibilities her suggested Juror B.A.’s responses could make decisions. juror tough included other manager employees. as a cafeteria responsibilities supervising Jurors F.J.’s J.S.’s job responsi- Nothing description Prospective had trained in the Juror B.A. been Significantly, bilities appears compare. “.22’s, had shot of firearms and owned of firearms. She variety operation millimeters,” rifles, .45’s, ,38’s, .22 a .22 nine and owed four pistol, [and] semiautomatic, nine-millimeter shotgun. backgrounds a 20-gauge *49 lack by any B.A. their of FJ. and J.S. were from Juror distinguishable their with experience guns, as well as lack supervisory responsibilities, in on ballistics evidence significant a factor reliance given prosecution’s this case. R.P.
Juror FJ. a for 11 Like years. Juror R.P. had been diesel operator equipment However, J.S., R.P. and he have Juror experience. did not work supervisory he would be a had had life FJ. and J.S. lacked that suggested experiences a in a juror Juror R.P. had been juror favorable for prosecution. previously case that murder and circumstances charges special involved capital multiple and reached in both allegations, guilt penalty had verdicts decisionmaking The fact Juror had been in the same stressful R.P. phase. distin- substantially which the was concerned environment about prosecutor addition, had Beach Long him FJ. and J.S. In Juror R.P. ties guishes from his chief of its airport, law enforcement: his brother-in-law was the police Police a for the Beach Long Department, sister was 911 operator could have worked for the The prosecutor acquaintance police department. law ties to enforce- strong chosen not to Juror R.P. because of those strike People Gray Cal.4th (See ment. 190-191 not to a whose juror P.3d could have chosen strike [prosecutor 496] officer, the juror would believing husband was California Patrol Highway addition, R.P. witnessed two In Juror had favorable the prosecution].) first, for At the scene of he identified killings. suspect police. separate but not had and had to court gone Juror R.P. intended that case testify trial manslaughter He did at the vehicular testify called to witness stand. R.P. was not These Juror suggest related to second killing. experiences intimidated could make hard decisions. Ju- easily Notwithstanding ror lack R.P.’s could have believed supervisory prosecutor experience, he would have less than either FJ. difficulty deliberating during penalty or J.S.
Juror W.F. Juror W.F. was an account coordinator for a coupon distribution company, with consulting manufacturers decide the of media to for type use distribution of She worked in manager with her account coupons. conjunction decisions for her Juror had making clients. W.F. worked for a previously relations and as a Little public advertising agency marketing manager Although Caesar’s Pizza. she did have her work supervisory experience, work distinguishable from that of FJ. and in that it experience J.S. required addition, in a team decisionmaking working environment. In Juror W.F.’s brother-in-law awas Beach officer whom twice Long police she saw a month. could have believed Juror W.F.’s connection to the Long case, Beach Police one Department, investigating this agencies would have made her desirable for the juror prosecution.
Juror M.C. M.C., children, Juror a widow with nine adult had volunteered as a docent at the Torrance years. courthouse for 13 She had been a nurse’s previously aide for five She had years. jury service in trial that prior robbery proceeded *50 to verdict. One her of was retired from the Los Police nephews Angeles and another the Department, was an at Beach interpreter Long courthouse. Although Juror lacked M.C. the prosecutor could supervisory experience, have decided she was a desirable the juror who could prosecution effectively household, deliberate based on her a her experience running large volunteer docent in work a courthouse for 13 years, her experience verdict, criminal case that reached a and her ties to the and legal community law enforcement. undertaken, analysis we have whether not it comparative or includes
our the consideration of oral of the non-African-American responses jurors motion, after the court were trial denied second provided defendant’s does not undermine our conclusion substantial evidence the trial supports Batson/Wheeler motions denial court’s of the as to FJ. J.S. and Romero, 2. Admissibility Miller’s Statements to Officer Johnston’s Letter to and the Defendant, Still Photographs In the the takes into circum determining account penalty, “[t]he stances of the crime of which the defendant was in the convicted present 190.3, Therefore, of the the circumstances (§ “evidence of (a).) factor
[case].” offense, doubt as to the defendant’s including creating lingering evidence offense, a factor at a retrial is admissible penalty [as guilt Gay v. (2008) 42 Cal.4th . . . (People under . . . section 190.3 .” mitigation] retrial, the 422].) During penalty at trial to guilt had the the introduced evidence that it presented prosecution attorney trial argued of the crimes. Defendant’s establish the circumstances doubts guilt, lingering the evidence of defendant’s that notwithstanding accidental, whether defendant the regarding shooting existed whether shooter, testimony, the of Marcia’s credibility accomplice was the actual the bullets concerning expended of the forensic credibility expert casings.
Here, at the retrial erred in defendant contends trial court penalty circumstances Officer of the crime Miller’s statements admitting as Romero, defendant committed (2) Johnston’s letter as an admission adoptive Beach,” at “that little the still robbery Long printed photographs admission He this evidence was argues erroneous Aerospace. prejudi- strong cial because it to “negat[e] mitigating permitted [his] in the circumstance of doubt and lingering jury’s weighing process skew[] direction death.” at of a
“Error evidence admitting excluding penalty phase it affected the trial is reversible if there is reasonable capital possibility II.B.L, ante, Gay, In supra, part verdict.” Cal.4th we meaning found Miller’s statements were not testimonial within supra, 541 U.S. constitutionally that their Crawford, admission reasons, trial. For the same evidence was during guilt permissible (a) admitted at the trial under factor of section 190.3. penalty properly II.B.4., ante, conclude Johnston’s letter was As discussed in we part was harmless. admitted but that the error erroneously during guilt phase NO. 2.71.5 for We also the erroneous instruction under CALJIC conclude violate defendant’s admissions did not error or compound adoptive *51 the during constitutional Admission of the letter instruction rights. in the above. The information retrial was error for reasons penalty expressed letter, however, testimony, was Johnston’s own conveyed through Johnston’s the Defendant’s attorney and it did not address defendant’s role in crime. because he was not the to the that defendant was less argued culpable victim, the but Johnston’s letter actual shooter and did not intend to shoot the clerk nor shooting expressed neither accused defendant of intentionally reasons, we the were carried out. For these of how crimes knowledge letter had no reasonable admitting possibility conclude the error in Johnston’s Pearson, v. 56 Cal.4th at supra, verdict. affecting penalty 472.) p. II.B.6., ante, in we concluded the court acted
Finally, trial within its part Here, in discretion still at for admitting photographs printed Aerospace. reasons, the same the evidence admitted retrial properly penalty (a) under factor of section 190.3.
3. Exclusion Evidence Shot Why Moon Explaining Defendant Defendant contends the trial court erred Marcia’s statement to excluding during Detective Edwards her interview defendant told her he shot Moon because Moon only gone had for Defendant claims the gun. evidence was admissible under Evidence Code section 356’s rule of because completeness it related to other statements Marcia had made to Edwards that were admitted at trial.
a. Factual and Background Procedural examination, On direct Detective Edwards testified Marcia him gave several about accounts when the met and what robbery and group planned cross-examination, defendant had during said their On defense meetings. counsel asked Edwards whether Marcia told him defendant he said shot victim because victim had reached for a gun. prosecutor objected sidebar, At a hearsay grounds. counsel argued statement was admis- sible under the rule of The trial court completeness. sustained hearsay objection.
b. Discussion “[wjhere Evidence Code section 356 in relevant provides, part, . . . conversation ... is one part given evidence the whole by party, [a] on the same into an adverse . . a . . subject may . when . inquired party; evidence, act, declaration, conversation ... other given any conversa tion, or which is to make it writing necessary given understood also be may in evidence.” “The of Evidence Code section 356 is purpose to avoid creating misleading It to statements that have impression. applies only [Citation.] with, some or connection bearing upon, portion conversation introduced. Statements originally other matters pertaining may [Citation.] be excluded.” (People v. Samuels 36 Cal.4th 1125]; see 4 Cal.4th at People Zapien, supra, Here, defendant contends Marcia’s statement to Detective Edwards that defendant said he shot the victim because Moon was reaching gun admissible it because bore statements Marcia made to Edwards upon However, had already been admitted. at the time of counsel’s objection, *52 relevant of the interview that had been portion through elicited Marcia’s during what she solely planning related
testimony perceived the crimes. following and leading immediately and the events robbery or refer to any a for the shooting statements did not reason suggest Marcia’s about shooting. Nothing have made about the may statements defendant other excluded misleading, to the was what had been presented been that had had on the of Marcia’s interview statement no bearing portion court conclude the trial properly into we Accordingly, introduced evidence. Marcia statements any testimony regarding excluded Edward’s proffered had been shot. or how the victim why explained purportedly Evidence Victim Impact 4. be reversed because
Defendant his must judgment contends penalty evidence, a board including displaying photo victim presentation impact victim, his trial rendered unduly was prejudicial photographs fundamentally unfair. addressing
We evidence before summarize relevant victim impact defendant’s claim of prejudice. to victim Richard
Los Morris was married Angeles Police Officer Stephen he Moon in 1986 Morris testified met Richard Moon’s stepdaughter Maryann. met, ever Moon crediting as the most he generous described him person learned of academy. with him from Morris graduate police helping cried, death and his while on He broke down and duty. supervisor Moon’s he blocks working had to drive him Morris felt because guilty home. shot, Morris from Eddie’s but he was not there help. when Moon wife, Moon’s observed that had turned everything “upside-down” Catherine, after the murder. knew, and more he that Moon anyone
Morris testified Moon loved life than time his identified family. many photographs with Morris enjoyed spending board, showed of himself and his Some including family. some photo members family Moon his wife in Hawaii. Others showed Moon with with dressed as Santa such as celebrating graduation ceremony, occasions special Claus, children, granddaughter, “clowning with with his posing playing One in the center of the board showed Moon around.” large photograph arms with his outstretched. smiling Watson, considered Moon
Jolene mother of Moon’s grandson Christopher, she, and Moon’s son Christopher, to be a friend. Watson testified that good when Moon was family with and Catherine Billy were Moon living death, Billy. Billy After learned of Moon’s she informed killed. Watson mother, “was horrible.” absolutely to his whose reaction the news gave at Watson’s school high Moon depicted Watson identified photograph graduation.
1326 daughter
Catherine’s was Moon’s Maryann but Moon treated stepdaughter, like own Maryann his child. described the moment she learned of Maryann added, Moon’s death as the most that ever to her. She painful thing happened our She just big lives.” described her mother as gap very “[t]here’s and lonely “lost the in her empty, having sparkle eye.” trial,
“In a evidence direct capital showing impact defendant’s acts on the is victims’ friends not barred family by Eighth or Fourteenth to the federal Amendments Constitution. v. Tennessee (Payne 808, 720, (1991) 501 U.S. L.Ed.2d 2597].) 825-827 111 S.Ct. Under [115 law, California victim evidence is admissible impact penalty phase 190.3, crime, under section (a), factor as a circumstance of the provided evidence not so inflammatory as to elicit from the irrational or emotional untethered to the facts of the case.” v. response (People Pollock 1153, 34, (2004) 32 353].) Cal.4th 1180 P.3d Cal.Rptr.3d 89 [13 Defendant contends section 1191.117 limits the to a prosecution victim single at the The witness issue is forfeited impact penalty phase. (See because defendant failed to on this object ground the trial court. 763, 531, (2007) v. People Kelly Cal.4th 171 P.3d Cal.Rptr.3d [68 548] to to victim object forfeits issue on particular impact testimony [failure Code, 353, Evid. (a).) subd. Even if appeal]; the issue were it § preserved, would fail on its merits because “a trial court has the discretionary power under section 1191.1 hear witnesses who are not victims.” v. strictly 518, 573, Brown 31 Cal.4th 1137]; fn. 24 73 P.3d Cal.Rptr.3d [3 see v. People Zamudio Cal.4th 364-365 evidence not limited to impact testimony single of a 105] [victim Pollock, witness]; v. People supra, 32 Cal.4th at impact [victim evidence limited to of testimony family members].) Defendant provides no persuasive reason reconsider our decisions. prior
Next, defendant contends the trial court admitted victim erroneously evidence that was far more extensive and impact than the evidence prejudicial held admissible in To Payne v. Tennessee. contrary, testimony Morris, Watson, and was limited to their Maryann the nature of explain victim, murder, with the the immediate relationship effects of the and the 17In part, relevant section reads next 1191.1 as follows: of kin of the victim if the “[T]he right victim died . . sentencing proceedings has . have to attend all this .... chapter under victim, minor, guardians up parents or to two of the victim’s or if the is a or the [ID victim died, right next personally of kin the victim if the victim has have the or appear, counsel, her, his, sentencing at the proceeding reasonably express and to or their views crime, concerning the person responsible, and the need for restitution. The court victims, imposing sentence guardians, shall consider the statements of parents next pursuant kin concerning made to this section and shall state the record its conclusion person pose public safety whether the granted probation.” would threat if Brown, the murder on their lives. (People
residual continuing impact *54 745, 398; (2009) 47 Cal.4th 792 v. Ervine 33 at see People Cal.4th supra, 786, the include may P.3d evidence 220 impact Cal.Rptr.3d 820] [victim [102 friends, coworkers, of Admission community].) on and the murder’s effect victim had with his close the relationship the testimony regarding Watson’s death on his grandson the of the victim’s Billy son and emotional impact members family neither of those though was not even Christopher improper, confine their testi- is that members family testified. “There no requirement themselves, mention omitting the of the death to about victim’s mony impact 395, (2005) Cal.4th 495 v. Panah 35 of other members.” family (People [25 672, number of witnesses 790].) 107 We also conclude the P.3d Cal.Rptr.3d 574, 646 (See Taylor (2010) 48 Cal.4th People [108 was not excessive. v. 87, of victim six testimony admit [proper impact Cal.Rptr.3d 12] close of victim’s family].) members four family representing generations board next of the was photo Defendant contends admission prosecution’s unfair. and rendered his trial unduly fundamentally prejudicial evidence of the victim while alive relevant and Photographic admissible “it the as the defendant before the by as victim seen portrays 543, murder.” v. Anderson 25 Cal.4th 594 Cal.Rptr.2d [106 Here, 347].) inflammatory P.3d there was about nothing particularly unfairly the have influenced the The might jurors. prosecu photographs that, Morris, Watson, had Maryann tor used them to properly convey described, had fullest. Moon celebrated and life the enjoyed at trial was inadmissible
Defendant that one objected particular photograph it in a and was used as because Moon “Jesus depicted pose,” Christ[-like] the but a The Moon water “nothing by sympathy ploy.” photograph depicts That and others while with his arms outstretched. looking standing pose up his were in keeping on the board that Moon with arms outstretched depict his as one outwardly expressed joy with Morris’s Moon who description the on the board challenged for life. was centered Although photo photograph than the the no larger placed special other photographs, did attribute any religious the nor he challenged photograph on emphasis to it. conclude the significance challenged photograph properly We admitted of the board. as part photo the was estab-
Defendant contends effect prejudicial photographs the course of its during view the board jury’s photo lished the request denied, deliberations. the one-day phase Although request penalty defendant “the itself bare raw emotion argues request lays present room and the effect” prejudicial photographs display. jury does record the claim of In refusing support prejudice. deliberations, to view the jury’s request during the trial court photographs limited the extent to which the could emotionally affect photographs and defendant cites in the jurors, nothing record suggests photographs were so inflammatory they jurors from a rational prevented making penalty determination. Evidence need not be presented penalty phase devoid of emotional content. (People Cal.4th Lopez here, 1177].) P.3d “The admitted photographs argument, use them in prosecutor’s evaluating assisted defendant’s crimes were not the consequences they of ‘irrelevant type *55 information or rhetoric that diverts the inflammatory attention from its jury’s ” irrational, or an role invites proper purely subjective v. response.’ Thomas, supra, 53 Cal.4th at p.
Defendant next contends that rebuttal the during prosecutor improperly asked the to a jury base its decision on penalty comparison virtues of defendant, and victim “I’m to consider by arguing, asking you everything. lifetime, But Calvin in view Chism the context of what he done in has his and it to those in circumstances that have been offered compare aggravation to for Then you your consideration. reach and truthful appropriate The verdict.” asked the to prosecutor properly “consider jurors everything” defendant’s conduct his in all “compare” life throughout light evidence a aggravating There was no deciding penalty. misconduct. 5. Instructions Proposed Jury Defendant’s Defendant the trial claims court erred in to refusing certain give special by instructions the defense. He absence requested contends their deprived defense, him of federal and state rights constitutional to a fair and present trial, reliable and to due capital of law. process
Defendant’s instruction No. 52.16 stated: “The proposed jury mitigating circumstances that I have read your for consideration are given you merely of some of the factors take account examples you may into as reasons for deciding not to a death sentence in impose this case. You should pay sufficient, careful attention to each of those factors. of them be Anyone may alone, to a decision that death is standing support not appropriate in this case. But should not limit punishment you consideration your factors, circumstances to these mitigating specific may You also consider [f] any other circumstances to the case or to the relating defendant as shown the evidence as reasons for not the death A imposing mitigating penalty, [f] circumstance does have exist. to be reasonable doubt to proved beyond You find must that a circumstance exists if there is mitigating any substantial evidence to it. circumstance Any mitigating may support presented you [][] to use mercy, You are permitted all factors.
outweigh aggravating each to give mitigating or what deciding weight sentiment sympathy, factor.” Pursuant CALJIC trial this instruction. rejected court properly account, consider, 8.85, into it take
No. the court instructed the could jury which other circumstance things, “[a]ny other guided among be by, excuse for the even it is not a legal extenuates the crime gravity though or the defendant’s character or other any aspect crime sympathetic death, a sentence less than record that the defendant offers as basis for We have he is on trial.” not related to offense which whether or concerning held instructs the jury this instruction consistently “adequately including sympathy circumstances that considered may mitigation, (People Burney 203, 261 (2009) 47 Cal.4th mercy.” 639].) “There is no instruction No. 52.25 stated: Defendant’s proposed matter offered in unanimously any all requirement jurors agree each Each must make an evaluation of fact individual mitigation. juror *56 own individual offered in Each must make his mitigation. juror circumstance weigh of the to be such evidence. Each should juror assessment weight given and of or not are regardless they by consider such matters whether accepted other jurors.” the is to instruct jury]
We have held trial court “not required [the be that is a consider evidence to unanimity juror may not before required v. mitigating.” (People Coddington 529, 23 Cal.4th 641 Cal.Rptr.2d [97 528, addition, 1081].) 2 P.3d In “CALJIC No. 8.88 advises jurors adequately on to a verdict of life the of their discretion to death and return scope reject 610, McKinnon parole.” 52 Cal.4th without of possibility trial did err in 1186].)18 P.3d The court not Cal.Rptr.3d [130 the instruction. refusing proposed increases
of mechanical beyond considered as penalty. aggravating aggravating event which of deem “After weights counsel, The appropriate having the elements Q] trial court its to counting you The factor does guilt any heard shall weighing mitigating not constitute of to extenuating is or instructed them, all of the of factors of each and any consider, enormity, or adds to its the crime itself. fact, of [f] circumstances aggravating You are free to evidence, the circumstance condition all of on take into justification each side jury the various under CALJIC No. [|] and after or event account, A of an upon mitigating assign mitigating or excuse for determining which is above and injurious consequences factors imaginary attending having and be which whatever circumstance is you circumstances heard you have been instructed. guided by 8.88, the commission of the scale, the are moral crime in appropriateness in permitted to or the pertinent considered the does not mean a mere sympathetic any arbitrary assignments question, applicable fact, part, consider. the of crime condition but arguments factors value the follows: may fi[] which [1] death you An be of or In Defendant’s instruction No. stated: proposed jury 52.26 “The aggravating you factors that I have listed for be considered if just may by you, applicable, evidence, and established will determining penalty you impose in this case. These I have you factors that listed are ones that only may find to take you be factors cannot into account other aggravating any facts or circumstances as a basis for on the of death imposing penalty defendant.”
Here, court the standard gave sentencing (see instruction CALJIC “[t]he 8.85), No. and we have held instruction is its failure proper despite factors, evidence to limit to the enumerated expressly aggravating statutory and to exclude factors as a for the nonstatutory basis death penalty. [Citation.]” v. Taylor (2001) 26 Cal.4th (Pe ople 937].) The trial court refused instruct with properly instruction No. 52.26.
proposed jury Defendant’s instruction No. 52.32 stated: “The law of proposed jury California you does ever vote of death. require to impose penalty After all of the evidence in the and the considering case instructions given court, it determine you by entirely is up you whether are you convinced death under all penalty of appropriate punishment circumstances case.” instruction was proposed CALJIC Nos. 8.8419 duplicative and 8.88. “CALJIC No. 8.84 informed the in this case that state law jurors that a defendant required guilty found circumstance murder be special death or confinement punished by for life without the prison possibility which these and that must determine penalties parole ‘you now shall now (Italics imposed added.) defendant.’ CALJIC further No. 8.88 *57 the evidence which advised that determine under the relevant jurors ‘you ’ ” McKinnon, is penalty justified appropriate. (People v. 52 Cal.4th supra, There is no that the court the trial must instruct requirement jury, 8.88, to No. that pursuant CALJIC “death must be the appropriate penalty, weighing you the various circumstances determine relevant penalty under the evidence which justified by considering is appropriate totality aggravating the of the circumstances with death, totality mitigating the judgment you of the circumstances. To return a each of of [SO must be that the persuaded aggravating circumstances are substantial in with the comparison so mitigating that it death parole.” circumstances warrants instead of life without 19 8.84, jury Pursuant to CALJIC No. the trial court the that defendant in instructed “[t]he guilty degree. this case has found of the The allegation been of murder first murder the] [that special committed under a circumstance has been found to It the specially be true. is law degree of this penalty guilty state that the for a defendant found murder in the shall be of first death, any or a in the for life prison possibility parole, confinement state of in case without alleged in special specially which the circumstance been to be this case has found true. state, you imposed Under the this determine of be penalties law of must now which these shall on the defendant.”
1331
1, 43
(People
v. Moon
(2005)
Cal.4th
not
a warranted
37
[32
just
penalty.”
894,
defendant’s
591].)
P.3d
trial court properly rejected
Cal.Rptr.3d
to
instruction No. 52.32.
give
jury
request
proposed
instructions
The defense
asked the trial court to give proposed jury
also
52.36, 52.39,
told
instructions would have
Nos.
and 52.39.1. Those proposed
that
chooses
must assume that the
each of
jurors
“you
you
penalty
of
(No. 52.36),
in fact be
without
the possibility
will
carried out”
“[l]ife
means
it
will be
for
says
what
the defendant
parole
exactly
imprisoned
death
52.39),
life”
that a
of
(No.
“you
rest of his
must assume
sentence
be executed
means that the defendant will suffer the ultimate
penalty
However,
of
reversal or
(No. 52.39.1).”
“because
‘possibility
appellate
therefore
it would be inaccurate and
commutation
gubernatorial
pardon,
verdict,
that if it returns a death
the sentence
erroneous
instruct the jury
death will
carried
v.
out.
inexorably
[Citation.]”
[Citations.]’
1032,
651,
911].)
Wallace
P.3d
(2008)
44 Cal.4th
[81
have
‘life
held
without
consistently
possibility
phrase
“[W]e
it
that a
in CALJIC No.
informs the
appears
jury
8.84
parole’
adequately
defendant
sentenced to life
without
imprisonment
possibility
parole
for
We
have held that the United States
ineligible
parole.
also
[Citations.]
Kelly
v.
Carolina
Court
U.S. 246
South
(2002)
decisions in
Supreme
670,
726],
v. South Carolina
L.Ed.2d
532 U.S.
122 S.Ct.
[151
Shafer
and Simmons v. South Carolina
1263],
L.Ed.2d
121 S.Ct.
[149
2187],
Defendant’s instruction No. 52.38 stated: “Evidence proposed been introduced in this case arouse in natural may you sympathy the victim or not evidence to the victim’s You must allow such family. [][] divert your your attention from role deciding appropriate proper You of death as this case. punishment may impose penalty [][] irrational, this result of an emotional evidence.” purely response Zamudio, People supra, In listed several 43 Cal.4th we instruction why give reasons the trial court refused similar properly “First, Those here as well. defense. reasons proposed apply law, instruction, it substance insofar as stated correctly requested *58 CALJIC 8.84.1 covered modified version of adequately by slightly the trial court would not have gave;[20] instruction proposed provided ‘[t]he CALJIC with it had not otherwise learned from information jury any which, here, 8.84.1, jurors The court CALJIC No. as relevant told instructed with bias, defendant, swayed by against nor be “[y]ou prejudice must neither influenced nor right expect feelings. Both and the defendant have a by public opinion public People or Second, No. 8.84.1 . . . .’ instruction requested misleading [Citation.] the extent it indicates that emotions no may decision to play part juror’s for the death opt penalty. Although jurors must never be influenced by or at passion prejudice, the penalty phase, they ‘may consider in properly crime, as a aggravation, circumstance of the of a defend- impact capital ant’s crimes on the victim’s and in so family, exercise doing [they] may sympathy murder victims and . . . their bereaved family defendant’s members. ‘Because instruction [Citation.]’ was mis- proposed [Citation.] , . . . leading and because the point covered adequately instructions that the court did the trial court acted give, correctly refusing to use’ the instruction Zamudio, defendant v. proposed. (People [Citation.]” 368-369, 43 Cal.4th at supra, omitted.) fn. pp. The trial court properly rejected defendant’s that it instruct the request with proposed jury instruction No. 52.38.
We concludethe trial court refused defendant’s properly instructions. proposed
6. Cumulative Error Defendant contends the cumulative effect of the asserted penalty phase errors reversal of requires his convictions and death sentence even if none of the errors individually reversal. We conclude errors or assumed compels any errors were not whether viewed prejudicial, or separately cumulatively.
7. Attempted Robbery Felony-murder Special-circumstance
Allegation Defendant was found death based on the eligible true jury’s finding on the attempted robbery felony-murder special-circumstance He con- allegation. tends of his death sentence imposition violates international law and the Eighth Amendment’s in the proportionality absence of a requirement, finding that he intended to kill the victim or exhibited reckless indifference to life as a major in the participant robbery. These claims have no merit.
“The felony-based circumstances do not that the special defendant require intend to kill. It is sufficient if the defendant is the actual killer or either intends kill or ‘with reckless indifference to human life and as a major aids, abets, counsels, commands, induces, solicits, participant, requests, assists Rountree, commission’ of the felony. [Citations.]” 854; Tobin, 56 Cal.4th at supra, see v. Letner and p. People supra, 50 Cal.4th [rejecting argument under v. Reeves Hopkins U.S. evidence, you law, will consider your all of the follow the exercise discretion conscien- tiously, just and reach a verdict.”
1333 actual killer 76, 1895], the state must prove L.Ed.2d 118 S.Ct. 99 [141 state].) mental had culpable mental state absent a finding culpable the death penalty
Imposition international law because international killer does not violate for an actual with state in accordance of death rendered not a sentence law does prohibit v. Watkins People (See and statutory requirements. and federal constitutional 299, 364]; People 999, v. P.3d (2012) 55 Cal.4th Cal.Rptr.3d [150 Cal.4th at Taylor, supra, p. holdings. to reconsider these prior decline defendant’s request
We Law Penalty Death Challenges 8. California’s death law to California’s challenges penalty Defendant raises numerous Fifth, Sixth, Amendments to the federal and Fourteenth under the Eighth, claim, and defendant offers each consistently rejected Constitution. We have reconsider our decisions. no reason to prior persuasive violation of the Eighth broad in “Section 190.2 is not impermissibly 691, v. Loker (2008) 44 (People Cal.Rptr.3d Amendment.” Cal.4th [80 630, the crime’ factor of ‘circumstances of 580].) 188 P.3d “The sentencing 190.3, in the and does not result (§ (a)) unconstitutionally vague factor is not Valencia v. (People of the death arbitrary capricious imposition penalty.” 605, 351].) (2008) 43 Cal.4th 180 P.3d Cal.Rptr.3d [74 achieve as to unanimity “The need not make written jury findings, circumstances, that an or find a reasonable doubt beyond specific aggravating crimes), that aggravat- circumstance is for other aggravating proved (except circumstances, or that death is the mitigating circumstances ing outweigh is not unconstitu- The death statute penalty appropriate penalty. [Citations.] of the burden of proof tional for with instructions failing jury provide circumstances mitigating and standard of for finding aggravating proof v. Morrison determination.” 34 Cal.4th (People reaching penalty 568].) 730-731 such as adjectives factors mitigating in the list of
“Including potential (id.., factor 190.3, does (§ (d), (g)) factors and ‘substantial’ (g)) ‘extreme’ of mitigating consideration erect an barrier jury’s impermissible Valdez, 180.) “Intercase 55 Cal.4th at supra, propor- evidence.” criminal activity Use of review is not tionality prior required. [Citation.] court need not instruct The aggravation proper. [Citation.] solely mitigation. factors are relevant statutory mitigating [Citation.] by treating not violate protection California death scheme does equal penalty *60 1334 defendants Use of the death
capital noncapital differently. [Citation.] does not violate international and is not penalty law unconstitutional.” v. Livingston 1145, 139, (2012) 53 Cal.4th Cal.Rptr.3d [140 1132].) 274 P.3d Prior Juvenile Adjudication Assault with
9. Defendant’s for Firearm After a court trial held defendant was found to have prior sentencing, suffered a serious violent conviction for prior felony sentence purposes enhancement under the Three Strikes law. The trial court’s finding based 245, on defendant’s juvenile (§ for assault with a firearm adjudication (b)) subd. for his involvement in the Arnold Park incident. Applying law, second strike of the Three Strikes the court doubled defend- provision 667, 1170.12, (§§ ant’s sentence for the (b)-(i), subds. Riteway robbery. subds. (a)-(d).) Jersey New Apprendi 435, (2000) v.
Relying
After defendant filed his we decided in opening (2009) 946], 46 Cal.4th that “the [95 absence of a constitutional or trial under the statutory right jury juvenile not, Apprendi, preclude law does under the use of a juvenile prior adjudica- tion of criminal misconduct to enhance the maximum sentence for a subse- adult offense the same We decline quent felony by defendant’s person.” to reconsider that decision. request Terms on Counts Imposition Upper Two Three and
10. the Firearm Enhancements on Counts One and Three Citing Cunningham U.S. 270 L.Ed.2d California 856], 127 S.Ct. defendant contends the trial court violated his Sixth Amendment to a trial right by him to terms erroneously sentencing upper (count two) robbery (count three) and second attempted degree robbery 12022.5, and for the (former firearm enhancements (a)(1)) subd. as imposed § (first murder) to counts one and three21 based on facts neither found degree a reasonable doubt nor admitted by jury beyond defendant.
In
terms for counts
two and three and the firearm
imposing upper
three,
enhancements as to counts one and
the trial court said “the
factors
The trial court
stayed
defendant’s
sentence on count two.
found
and specifically
those in mitigation”
greatly outweigh
aggravation
violence,
great
the threat of
great
all of the crimes involved
follows:
viciousness,
callousness;
were
(2) both victims
particularly
bodily injury,
unarmed;
in a
(3) defendant was
alone and
were
given they
vulnerable
in the attempted
Johnson to participate
and induced
position
leadership
carried out reflected
the crimes were
(4) the manner in which
robbery;
*61
entourage
an
defendant
and professionalism;
“ha[d]
planning, sophistication,
robberies;”
entered the
defendant
commit the
before
that he . . .
recruit[ed]
cameras; (5) a firearm
store,
clerks and
he sent someone inside to look for
indicat-
in violent conduct
(6)
in each
defendant
robbery;
engaged
was used
(7) defendant had
been
recently
paroled.
a threat to
and
ing
society;
that,
under
In People Towne Cal.4th 80-81 10], we held that of an term based on trial imposition upper court’s that the defendant was on at the finding time probation parole offense was committed did not violate the defendant’s Sixth Amendment to a trial under right Cunningham. this case the trial court’s Similarly, reliance on finding its defendant had been recently paroled impose terms on counts two three and the firearm enhancements upper imposed 12022.5, three, under former (a)(1), section subdivision on counts one and *62 (See (2009) under permissible Cunningham. People Moberly 176 1191, 1198 dual use of a fact or facts Cal.App.4th Cal.Rptr.3d [98 434] [“the both a base term and the sentence on an aggravate enhancement is not 803, (1984) v. Price 151 People 812 & fn. 5 prohibited”]; Cal.App.3d [199 trial fact(s) court use the same more than one Cal.Rptr. may impose 99] [“a term the fact is related to the aggravated reasonably provided particular count . . .” and “the fact has not been or will not be used to already impose term”].) either an enhancement aor consecutive defendant was Accordingly, of his Sixth Amendment to a trial under deprived right Cunningham. 11. Conduct Credits
At the trial court awarded sentencing, defendant 643 of days custody credits. Defendant contends the trial court relied on section 2933.2 erroneously him conduct deny any credits. presentence (a)
Subdivision of section convicted of any 2933.2 prohibits person However, murder from conduct credit. accruing any or worktime presentence the statute to offenses committed after its effective date of June applies only 3, 2933.2, 2, 1998; (§ (d), 222) 1998. subd. voters June approved by (Prop. 1308, (2001) see v. Hutchins People 90 1317 Cal.App.4th Cal.Rptr.2d [109 12, 1997, 643]). defendant Because committed his crimes on June any good 4019, time or worktime credits are former which governed by section that a defendant convicted crime enumerated section 667.5 provided will receive one of conduct credit for each of confinement day six-day period which he with the rules and of the during regulations facility. complies 4019, 1982, 1234, (Former (a)(1), (c), (f), subds. as amended Stats. ch. § 7, 2933.1, however, (c), Under section “the subdivision §
1337 in, of confinement be earned against period maximum credit that may to, arrest and to placement . . . jail following prior commitment county Corrections, exceed 15 shall not percent of the Director custody (a).” in subdivision actual of confinement for any person specified period statute, a limitation on the number of (a) of that which imposes Subdivision here), (an awarded issue not relevant applies worktime credits that be may (c) in subdivision who is convicted of a offense listed felony “any person 2933.1, (§ (a).) Section 667.5.” subd. are listed under for murder and robbery
Defendant’s convictions attempted 667.5, and thus he is a (c)(1) (murder) subdivision (robbery) section Therefore, the combined (a) in subdivision of section 2933.1. person specified under former section total of defendant’s conduct credits awarded presentence not exceed 15 of his actual of confinement. may period percent 2933.1, (§ (c); subd. v. Palacios People Cal.App.4th 318].) entitled to of conduct days defendant is Accordingly, confinement). (Former (15 credit of 643 days § percent presentence (a)(1), (c), (f).) subds.
m. DISPOSITION credit under former section Defendant is entitled to 96 of conduct days (f). The directed to (a)(1), (c), modify subdivisions court is superior entitled to of conduct days abstract of to reflect that defendant is judgment 2933.1, (§ the verdict of (c).) credit. subd. In all other respects, including death, the is affirmed. judgment *63 J., J., J., Baxter, J., concurred. Corrigan, C.
Cantil-Sakauye,
Werdegar,
KENNARD, J.,*
the
in
Concurring
Dissenting.—I join
majority
uphold
murder,
robbery,
defendant’s convictions for
ing
robbery,
attempted
of
well as his death sentence. But I
with the
disagree
majority’s rejection
it
the “Three
defendant’s claim that the trial court erred when
applied
1170.12,
Code,
667,
(Pen.
(b)-(i),
(a)-(d))
subds.
Strikes” law
subds.
§§
ante,
at
(See
double his
sentence for
five-year
robbery.
maj. opn.,
p.
Defendant
“strike” was an
in
argues
adjudication
because his prior
court,
the
as to which he had no
to trial
federal
by jury,
juvenile
right
Amendment
the
court
Sixth
to a
trial barred
trial
right
jury
Constitution’s
robbery.
from
the
to double his sentence for
using
adjudication
prior juvenile
on this court’s
similar
majority disagrees, relying
rejection
previous
615,
(2009)
claim in
v.
article section 6 of the California Constitution. 1338 “the Sixth Amendment’s
I dissented in As dissent Nguyen. my explained, a trial court to additional to a trial does not right jury permit impose which there that is based on criminal conduct for prior juvenile punishment (dis. no to a trial.” 46 Cal.4th 1034 right jury (Nguyen, supra, p. opn. was Kennard, Thus, J.).) the trial court here erred in defendant’s using prior Therefore, I to double defendant’s sentence for adjudication robbery. juvenile court to modify judgment by would direct the clerk of superior by robbery defendant’s “strike” and his sentence dismissing reducing prior an undoubled term of five years. Chism,
LIU, J.,
Calvin Dion
a black
Concurring
Dissenting.—Defendant
Moon,
man,
to death for the murder of Richard
a white store
was sentenced
10 to two in favor of death. It
hung
clerk. At
first penalty phase,
jury
In
selecting
that the two holdouts were black women.
undisputed
second
exercised
strikes
jury,
prosecutor
peremptory
penalty phase
two black
available for
When defendant
challenge.
first
against
jurors
(see
(1986)
motivated
Batson v. Kentucky
both strikes as
challenged
racially
69,
(Batson);
Today’s opinion selection indica- a claim of discrimination rejected improper despite in the record that the strike of a black female juror substantially tions (See intent. v. Williams 56 Cal.4th People motivated by discriminatory (dis. P.3d opn. 698-699 1185] J.) to at least two African-American women called as Werdegar, prospec- [“as tive discrimination jurors, engaged exercising purposeful Liu, .”]; (dis. J.) [same].) his . . id. at challenges opn. J.S., Juror the second black struck juror prosecutor,
Prospective worked her from a clerk way circuit who designer up position telephone had trained over a career at Pacific Bell. For she 30-year past years, *64 had adult children as well as a 12 others on how to circuits. She two design and in a civil had served on a in a criminal case old. She year previously dire, case, a At voir she said she would be both of which reached verdict. either death or life without and that her decision to vote for willing parole, be her would on the evidence. She said she would willing depend express to others. She said she views and would be open listening repeatedly case. be to vote for the death in an would willing penalty appropriate to decision- two reasons related gave In this striking juror, prosecutor (2) (1) lack of in the workplace making ability: supervisory experience no life. The record reveals in of stressful situations handling lack experience reason, a refused defense request for the the trial court second support J.S. had dealt with stressful whether voir dire examine reopen specifically reason, record does not support in to the first her life. As situations Bell, at least at Pacific characterization J.S.’s position prosecutor’s jobs. role in their current had no three seated white jurors supervisory us, I find it record before circumstances in the Considering all relevant of J.S. not motivated strike difficult to conclude that prosecutor’s I from dissent Accordingly, discrimination. substantial part by improper today’s decision. aspect
I.
175, 128 S.Ct.
Snyder Louisiana
(2008)
In
As to the “fails even under second concluded (Snyder, on habeas review. highly applicable corpus deferential standard” 479; standard].) see id. at supra, at “clear error” U.S. p. p. [applying would to convict on court said the that Mr. Brooks vote high possibility (Id. at lesser offense end the case was “highly in order to quickly speculative.” Further, “the the court found because “suspicious” prosecu- strike p. brief, voir dire” that the during tor on the record trial would anticipated he “Mr. with’ Mr. to see that because Brooks’ dean to ‘work Brooks promised he able to time that missed due to jury make up any student-teaching semester,” service,” and fall early because “the trial occurred relatively (Id. lost time. thus weeks” to make giving “many any teaching Mr. Brooks up 482-483.) at the court of this explana- said pp. Finally, implausibility “[t]he who tion is white jurors reinforced by prosecutor’s acceptance been serious to have at least as obligations disclosed conflicting appear 483; (Id. see id. at Brooks to Mr. Brooks’.” Mr. [comparing p. or work family obliga- two white with “more jurors “urgent” pressing” circumstances, Snyder concluded that the tions].) prosecu- In of these light discrimina- part by tor’s strike Mr. Brooks was “motivated substantial *65 (Id. intent.” tory below,
As strike of J.S. explained prosecutor’s in this case is no less than the strike suspicious of Mr. Brooks in Snyder.
A. 5, 2001, voir dire on March During Juror J.S. introduced Prospective herself as a circuit for Pacific telephone designer Bell. She had graduated from high school and attended two years business college, studying school, administration. While in she did clerical work at the Los Angeles County of Justice” “Department or “District Attorney’s Office.” At the time dire, of voir she had worked for Pacific Bell for years, as “a clerk initially awhile, and then I moved on When up.” asked whether she “ever said, supervised any J.S. employees,” “No. I do a lot of J.S. training.” proceeded for about 20 explain years, she had been others on training how to design circuits on a computer.
J.S. had served on a in a previously jury criminal trial and in a civil trial. instances, In both reached a verdict. The criminal case concerned molestation, child and the civil case involved J.S. personal injuries. divorced; her former husband was a She had plumber. two adult sons and a son, 12-year-old as well as three grandchildren. 2, 2001,
On March the court had asked J.S. about her views on the death J.S. said she would neither penalty. automatically vote for death nor automati- vote cally against death. When the court asked for her views on the “general said, death J.S. “I penalty,” would have to hear the evidence.” The court then asked, evidence, law, “So if heard the you and you were instructed on the if were you convinced that death was the could vote appropriate penalty, you asked, for that?” J.S. “Yes.” The replied, court also “If were convinced you that life without could parole vote for that?” appropriate, you J.S. “Yes.” replied, 5, 2001,
On March from the response questions J.S. said prosecutor, she evidence, understood she would have to each weigh to decide piece whether it was aggravating mitigating, to choose the appropriate asked, At that penalty. mind, point, prosecutor “With all that in understanding before asked you’re to exercise choice your will be you evidence, do presented you feel that you would choose life over always asked, death?” J.S. replied, “No.” then “Do feel the you other said, way, you would choose death always over life?” J.S. “No.” The voir continued; dire At this are juncture, you if prepared, your “[Prosecutor]: mind think death you is an to come back with a verdict appropriate penalty, of death? Yes. You understand that’s what would [f] [J.S.]: [][] [Prosecutor]: required you appropriate? if think death is Yes. [][] [J.S.]: [f] [Prosecutor]: You can do that? Yes.” [][] [J.S.]: *66 from defense counsel
J.S. answers to gave following questions then . assure will you express . . can us the court: counsel]: [Y]ou “[Defense others, . . . Yes. right? views and listen to your [ft] [Defense [][] [J.S.]: a words, majority In other if have an you opinion [sic] counsel]: a shrinking You won’t be your state disagrees you, you opinion? with will [ft] mind change are not going your violet? No. You Court]: [][] [J.S.]: [ft] [The accommodate No. some other are people, you? [ft] [f] [Defense [J.S.]: them, token, do believe that you the same if listen to By you you counsel]: Yes. be them? might right—you listening [ft] will open [ft] [J.S.]: ultimate decision on understand that final And you counsel]: [Defense stick, Yes. your vote is your your measuring opinion? [ft] [J.S.]: [1] [Defense that, Yes.” Both sides entitled to correct? are [ft] counsel]: [J.S.]: F.J., the The her fourth challenge against exercised prosecutor peremptory denied first black available for and the trial court defendant’s challenge, juror 6, 2001, Batson exercised additional motion. On March after parties strikes, J.S., who was the second black available juror struck sidebar, At counsel again Defense counsel defense challenge. objected. like an She had two juror. observed that J.S. “seemed idea priors, [szc] civil, many, both—one one There was a verdict. has worked for criminal. She at Pacific Bell. Worked her She many, many years way supervised people. up. She trains. She can make decisions. She worked—-and other- just obviously a good any why wise seems to be I can’t see reason the district juror, [ft] female, her, other the fact she is a black attorney would than accept [ft] IAnd would note that the last the two were black hung, hangs which a females. But that should not be basis.” course,
The has relied on life’s court “Of responded: prosecutor] [the . This trained I juror criteria . . has experience people. past, [ft] [ft] has trained don’t recall that she I believe she anybody. people supervised how to design use circuits.” computer she recollection is that she said prosecutor responded: “My specifically her glean job assign-
did not From what I can from anybody, supervise [ft] ment is a but which she is fancy, misleading, job she’s got very description, no is into data She makes my understanding, entry. from she basically, is and she that information into given inputs decisions. She specifications And, a filing a more form of clerk. basically She computer. sophisticated trained held but clerk She has individuals nothing she’s basically, positions. basically. data. She is data entry specialist, terms inputting data makes her “I think the fact trains in how they input don’t she people And that’s basi- for high-stress decision-making jobs. specifically qualified stressful, It to be deliberative very what this is. This is cally going process. are also individuals who seasoned decision makers. could requires They handle stress of a decision. . . . tough [ft] [ft] *67 “I’ve looked at her She been job description. has in clerk basically her, If I were kick to not it seems me that it be positions. to would only she because is an African American. And I believe that to don’t I’m going discriminate in one or the going direction other. I’m not her simply keep she because is African I have in the American. confidence fact that good with be can fair to an people experience African American male. don’t think that
“I it is essential that an American I African sit on the jury. it think would be if can wonderful we find individuals who I feel are decision who can seasoned makers handle the stress of the But situation. there’s about her that can absolutely nothing background tells me that she in a situation. And operate high-stress that’s in this very important type where the case issue is life death. It’s stressful.” going extremely At that court the trial said: “The point, D.A.’s comments have been I non-solicited. asked a facie facie has prima showing, prima showing not been made.” counsel Defense disputed characterization prosecutor’s of J.S.’s work experience that J.S.’s work explained long history, trainer, 50s, (“she as and middle least in experience age is at her probably older”) said, would good make her a The “Her juror. court position added, of Justice and then “And I filing,” necessary was don’t Department [sic] or agree disagree with criteria that the D.A. is using as far D.A., I would whether if I were a but that’s a based non-race criteria. And her of the use as to this with peremptory juror was consistent that non-suspect use.” category counsel, said,
After further defense argument “But I want to add that it’s not look for. I just that I look for how supervisory positions handled or stressful situations life.” they incidences in their Defense counsel asked, “May then I this Juror was asked whether not she has ever inquire, life, had deal with stress in her court The “I don’t specifically?” responded, recall But there were specific about her life.” At that question. questions said, “There defense counsel would be point, reopen general voir request on dire behalf of Mr. so we can Chism with explore possibility [J.S.].” and, The without that J.S. had not been prosecutor objected asked disputing said, stressful about life “How a deals with stress and experiences, person how it will they recognize as stress from individual to individual. I know vary on; at, I go what their to deal with ability stress is one I look things their including to make decisions.” Without further ability analysis, court said, “The voir dire was conducted. The is denied.” appropriately request M.G., excused woman on the only panel, other identified black In never death penalty. cause because she said she would impose
end, white jurors that made the decision consisted penalty A.D., current man, officer and a former correctional one black who was Prisons. A.D. had served with the federal Bureau of correctional counselor dire, the court a verdict. his voir During three all of which reached juries, institution, said, it’s a stressful “And I if there a disturbance in the take it situation,” stress every day whether A.D. with [his] and asked “deal[t] union that he in the A.D. also noted life.” A.D. answered affirmative. he and that had training, that he had law enforcement weapons president, friends in most law enforcement agencies. had
B. in court no case of discrimination Although the trial found facie prima J.S., defendant’s Batson motion with denying today’s opinion respect that that “the trial court ruled the ultimately concludes properly prosecutor’s neutral, the and race and therefore ... genuine question stated reasons were a racial is whether defendant made facie of discrimination showing prima ante, is at The before us 1314.) rendered moot.” (Maj. opn., p. question the bearing an examination of “all of the circumstances” on prosecu- whether {Snyder, 552 U.S. supra, discrimination. tor’s strike of J.S. reveals purposeful reasons, I it at For several believe does. p. J.S.,
First, trial the a black in a capital struck juror, penalty prosecutor a victim. We murdering defendant was a black man convicted of white where has the high have noted the obvious relevance of this racial dynamic, 87, 574, Taylor (2010) (See 608 People court. v. 48 Cal.4th Cal.Rptr.3d [108 bias is . essential P.3d into racial . . ‘[Ajdequate possible 229 inquiry 12] [“ African-American charged a case in defendant is with commission which Holt v. (1997) 15 Cal.4th of a crime White victim.’ against capital also Mu’min v. Virginia 619, 782, 213]; P.2d 660 see 937 [63 Wheeler, 1899]....)”]; 500 424 L.Ed.2d 111 S.Ct. U.S. [114 of the defendant need not be member supra, Cal.3d at p. [“[T]he of a of the excluded in order violation complain representative group rule; is, victim if he in addition his alleged cross-section and if yet especially the of the remaining jurors a member of the to which group majority Powers attention.”]; these also be called the court’s belong, may facts 411, 111 S.Ct. Ohio U.S. L.Ed.2d 1364] [“Racial cases might and the in some between the defendant excused identity person the stereotype, forbidden adoption be the explanation prosecution’s form, of the easier if the race bias this it one may provide takes alleged case a conclusive showing both a facie prima cases establish occurred.”].) has discrimination wrongful
Second, J.S., to the strike defense counsel objecting prosecutor’s first observed that the because black penalty hung two female phase jury jurors refused to vote for death. On defendant this observation appeal, quoted in his and mentioned it at oral briefing repeatedly argument. accuracy court, observation was never the trial or the disputed by prosecutor, Moreover, court, General on neither the Attorney trial appeal. prosecutor, nor the General ever awareness that the Attorney disputed prosecutor’s two holdouts black Plainly, were women. uncontested observation that two black female refused to for death jurors vote in the first trial penalty heightens the discrimination informed possibility improper prosecu- J.S., tor’s strike black woman only death-qualified panel. Third, “the fact that although today’s included an opinion says ‘is an African-American indication of faith good [by prosecutor] ” ante, exercising 1316), I am doubtful peremptories’ (maj. opn., inferred A.D., much can be from the failure to strike seated Juror prosecutor’s a correctional counselor with ties to law strong professional personal enforcement. Given A.D.’s it would odd have been background, clearly for the to strike A.D. suspicious
Fourth, and most importantly, review record casts doubt on the *69 strike, stated reasons for prosecutor’s striking J.S. In explaining took the view that a prosecutor sentencing capital proceeding “requires individuals are seasoned who decision makers.” The said that in prosecutor who selecting “individuals I feel are seasoned decision makers who can situation,” handle the (1) stress of she considered two indicators: “super- visory “how handled stressful positions” employment they situa- tions or incidences their life.” to the these According were the prosecutor, criteria that motivated her to strike These J.S. reasons thus sole comprise (See Miller-El v. Dretke focus of our review. 545 U.S. 252 [162 L.Ed.2d S.Ct. (Miller-El) grounds like illegitimate 2317] [“[W]hen issue, race are in a has to state reasons prosecutor got his as best he simply can and on the Batson stand or fall the reasons he A gives. plausibility call challenge does not for a mere exercise in rational thinking any basis. up If the stated reason does not hold does not pretextual its fade up, significance court, because a trial or an can a reason not judge, appeals imagine might have false.”].) been as shown up criterion,
As to the it J.S. said first is true that voir dire that she had during supervised any employees. rely was entitled this prosecutor criterion as as she it long evenhandedly regardless to all applied jurors, However, K.K., race. least two L.F. were at white who jurors, already J.S., at time the struck no empaneled also had prosecutor supervisory W.B., third and a seated white had no role in experience, juror, supervisory his current a minor role in only job. job previous supervisory handled workers’ administrative at who Boeing
L.F. assistant dire, L.F. asked voir During and medical claims. compensation about her follows: job, will be whether or not claims You make decisions as to prosecutor]:
“[The or rejected? approved No, ma’am.
“[L.F.]: with to that? duties your job respect What prosecutor]: “[The [sic] I insurance carrier. worker injured Pm buffer between “[L.F.]: to eliminate that. solving do lot of problem Your a facilitator? prosecutor]:
“[The [sic] Yes, uh-huh.
“[L.F.]: in that engaged particular job How have been long you prosecutor]: “[The assignment? and on about 20 Probably years Boeing. off [][] ...[!]
“[L.F.]: job? with individuals on your Do work other prosecutor]: you “[The Yes. “[L.F.]: Can tell me about that? you prosecutor]:
“[The have and the leave of absence are the same We workers’ comp “[L.F.]: *70 I making there I no decision in what area. And so have cross-training, [f] do, consult, course, on to made.” but can other decisions I of with people decision, if a arises that requires So Okay. problem prosecutor]:
“[The [][] are it to else’s attention? you somebody for responsible bringing Yes.
“[L.F.]: information with Do also discuss you pertinent prosecutor]: “[The the ultimate individual who would make decision? Sometimes.
“[L.F.]: some you Do have prosecutor]: input? “[The Yes. “[L.F.]: that, you basically from facilitate the of prosecutor]: Apart making
“[The the claim and the of claim? processing Yes.”
“[L.F.]: K.K. lab was a technician at he Raytheon, had held for 15 position years. K.K., The asked “What prosecutor do do?” K.K. specifically you replied, and electronic failure K.K. said he “Metallurgy analysis.” had advanced degree in finance. When the prosecutor asked whether he “ever had to other, said, K.K. supervise we’re each employees,” “Basically, self-helping [|] with, . lot . . A that we work some of it’s people on-the-job [f] of training, some it’s with us working directly engineers that instruc- give tions, so it who needs When whether depends help.” prosecutor asked said, school, he had other any held K.K. “Not I’ve jobs, since but completed mechanic, I’ve been auto bunch house whole of different painter, types I jobs guess.” W.B.,
A third seated white was a juror, network technician for Huntington Beach School District. When the asked High him to describe his prosecutor said, “It job, administration, W.B. means computer system, computer network When the asked computer troubleshooting.” whether he prosecutor supervised W.B. I any “No. do not.” went on employees, replied, say W.B. five earlier, wholesale, years he “was in electrical in sales and office management, The thing.” asked he type prosecutor any whether supervised employ- said, ees working while in office and W.B. management, “Yes. Warehouse- asked, then “And type people.” prosecutor what’s maximum number two, three, you W.B. “We had employees supervised?” replied, just sometimes temporaries.”
To the extent that the looked for as a supervisory experience for proxy seasoned with decisionmaking ability, comparison of J.S. L.F. is “particularly striking.” (Snyder, supra, U.S. As an administra claims, tive assistant handling workers’ compensation medical L.F. served as a “buffer” and a “facilitator.” She facilitated the making claims, information, processing brought she problems, input said, others decisions. But she “I have no decision responsible making K.K., addition, I in what do ... .” In while making more advanced having *71 J.S., education than likewise had no role in as a lab supervisory job his Further, technician. W.B. had no role in his a supervisory job as network technician. The only W.B. mentioned was a in supervisory experience job earlier, office five in he years which two or three management supervised sum, were In “[w]arehouse-type who “sometimes people” temporaries.” circuit designer that a telephone indicates J.S.’s as nothing job in record as ability job than L.F.’s less of decisionmaking was seasoned suggestive technician, assistant, job a or W.B.’s K.K.’s as lab job an administrative (See management. a his in office prior job as network technician or Miller-El, for a reason supra, prosecutor’s 545 U.S. at p. proffered [“If to otherwise-similar nonblack a black as well an striking applies just panelist serve, is to tending prove who is to that evidence purposeful permitted .”].) . . discrimination . have that may reasonably
Today’s prosecutor opinion speculates “[t]he decisions in making viewed Juror L.F. as someone with experience circumstances, with other jurors and who would work well stressful someone verdict,” have a that prosecutor may as a team and return and “[t]he . and instructions to give found that. . receive ability reasonably [K.K.’s] to make strong on a basis demonstrated problems continuing ability solve ante, at But the record nowhere (Maj. suggests decisions.” opn., Moreover, “in would it not have L.F. worked stressful circumstances.” why been reasonable to infer from J.S.’s work equally experi- prosecutor K.K., J.S., aon engaged solving continuing ence that like was in problem and, L.F, a valued basis like would work well with others? J.S. appeared Bell, over a career from a having 30-year Pacific been employee promoted design clerk others on how to circuits. position training telephone for the to infer From J.S.’s there was reason job every prosecutor description, J.S. worked with others. well experienced solving problem K.K., Indeed, L.F., of J.S. after prosecutor’s having strike accepted W.B. even more characteriza- light prosecutor’s appears suspicious of as “a data entry tion J.S.’s The described J.S. job. prosecutor specialist” . . “is and . who “makes no decisions” and given specifications inputs form basically information into a She a more computer. sophisticated And but clerk This filing basically, positions.” clerk. she’s held nothing worked the record. J.S. history by minimization J.S.’s work is unsupported clerk as a for Pacific began working clerk while she was in school and Bell, current role. Regarding process but moved her eventually up order, circuits, said, to put “We and then we have get J.S. designing circuit, it at.” never ends J.S. up where it’s from where together going job data did not ask whether J.S.’s mentioned and the entry, prosecutor As with or technical decisionmaking, solving, expertise. involved problem L.F., K.K., W.B., not whether her involved job did ask J.S. charac- noted that the When defense counsel prosecutor’s stressful situations. J.S.’s testimony, work terization J.S.’s experience unsupported court that J.S.’s did address the observed trial court discrepancy. *72 in the but Justice did not consider J.S.’s “position Department filing” Bell, aas circuit who trained others at Pacific a had job designer she position held 20 years. for noted, gave
As a second reason in her prosecutor strike explaining of J.S.: “. . . I want to add that it’s not that I look just supervisory positions for. I look for how handled stressful situations or their they incidences in because, life.” But this reason does not the inference of discrimination dispel clear, as defense counsel at trial objected the record J.S. was makes said, never asked her about stressful situations in life. The trial don’t court “I recall But there were her The specific question. about life.” questions life, asked about only J.S.’s from her work concerned questions apart history, of her and what activities in on makeup family engaged regular she basis, said, son, son, to which my J.S. “I take back and forth my 12-year-old to basketball ... I practice games his don’t have time to and—[][] [][]... do else.” Defense counsel asked the trial court to dire anything voir reopen to examine whether J.S. had dealt her specifically with stressful situations in life. But trial court denied the prosecutor objected, request. Moreover, L.F., could second reason not have prosecutor’s distinguished K.K., or W.B. from J.S. because in the nothing record addressed whether or how those had dealt in jurors with stressful situations their lives. J.S., woman,
To sum struck a black up: prosecutor selecting for a trial a black capital involving man convicted of penalty murdering white victim. It is that the first with two undisputed penalty phase jury hung black women as holdouts against a death verdict. Based J.S.’s work said J.S. not a decision experience, “seasoned maker[]” who “could handle the of a stress decision.” But J.S.’s work tough experience different, does not as a appear meaningfully proxy ability, decisionmaking from the work of three white seated an adminis- experience jurors, including said, trative assistant who “I have decision I .” making no what do ... Further, also although prosecutor said she for how handled they “look[s] life,” stressful situations incidences in their this additional reason could not have the strike of J.S. J.S. explained because was never asked about stressful circumstances, situations her life. find Considering totality of relevant I it more than not that the likely reasons for J.S. were prosecutor’s striking “The pretextual. prosecution’s proffer pretextual explanation^] th[ese] (Snyder, naturally to an supra, gives discriminatory rise inference of intent.” 552 U.S. at p.
II. conclusion, In several reaching contrary today’s reveals dubious opinion of our Batson aspects jurisprudence.
1349 claim, First, including its Batson the court’s examination of defendant’s the trial court’s deference to analysis, accords cursory juror comparative 1315, in the record ante, 1318.) But nothing at pp. ruling. (Maj. opn., court, to white J.S. making that trial in its ruling, compared indicates the did not trial court also whom the did not strike. The jurors prosecutor the account testimony between J.S.’s discrepancies prosecutor’s examine in did court voir dire light J.S.’s Nor the trial job. reopen of life, her had situations in claim that J.S. not dealt with stressful prosecutor’s had been asked that the court that J.S. not though acknowledged even when the trial court has made deference is question. Although “ appropriate ” all relevant circumstances ‘a sincere and reasoned effort to evaluate’ 602, 44 a Cal.4th 614 bearing on Batson claim Lenix [80 98, (Lenix)), it what this court is exactly P.3d is unclear Cal.Rptr.3d 187 946] Cal.4th (See v. Mai deferring People here. record, Liu, the (conc. J.).) On this case of opn. 1175] on is the did J.S.’s rely
for deference weak because especially prosecutor court. This the trial only demeanor or other intangible qualities apparent court, court, the the is of evaluating no less than trial capable prosecutor’s as each by juror’s employ claims as to demonstrated decisionmaking ability, or ment life experience.
Second, juror doubt on the utility comparative analysis court casts legitimately when conducted for the first time on because “a appeal party the same one but not another to whom may challenge juror prospective a similar give concern ‘Two applies. panelists might particular [Citation.] answer on a one be offset given by might by Yet risk point. posed panelist answers, behavior, that juror, other attitudes or make one experiences balance, ante, . at opn., more less desirable. . .’ (Maj. p. [Citation.]” Miller-El, at (cf. concern 545 U.S. supra, p. Whatever merits this fn. 6 “a rule that no is unless situation [rejecting comparison probative in it has no the individuals is identical all respects”]), applicability compared sentencing That is because the capital here. prosecutor emphasized view, decision mak- in her individuals who are seasoned “requires process, words, (Italics J.S. added.) striking In reason ers.” other prosecutor’s seated whatever any juror, necessary sought she quality purportedly A that focuses analysis have. juror might comparative other qualities discrimination. on this thus quality probative purposeful specifically L.F., K.K., or W.B. does other (The distinguish court not posit qualities Moreover, does not event.) utility analysis of such from J.S. any In court found Snyder, high number of large comparison jurors. require just a black struck highly juror it probative compare (Snyder, supra, Here, two seated 483-484.) white U.S. at jurors. pp. Snyder, rise to a comparative juror analysis gives strong inference of dis- (Id. intent, 485; even on a deferential standard of criminatory review. see p. Miller-El, supra, 545 U.S. at [finding comparative juror analysis “[mjore than fact 10 out of 11 powerful” prosecution struck black venirepersonsj.)
Third, says the court basis for a from challenge may ‘the range “[t]he virtually certain to the a highly and ‘even “trivial” speculative’ [citation] ante, reason, neutral, if will at genuine suffice.’ (Maj. opn., [Citation.]” 1316.) But Snyder identified the p. nature of the “highly speculative” stated reason an prosecutor’s as indication of rise to an implausibility, giving (Snyder, supra, 552 U.S. at p. inference 482.) of intent. discriminatory “ Further, the Batson the court ‘on says focuses the inquiry subjective genuineness of the race-neutral the given reasons for peremptory challenge, ” ante, not on the objective reasonableness of those reasons.’ at (Maj. opn., 1317.) we But have also that the p. recognized credibility can be prosecutor’s “ factors, reasonable, measured by, other ‘how or how the among improbable, ” (Lenix, v. supra, Miller-El are.’ 44 Cal.4th at explanations p. quoting Cockrell 1029].) 537 U.S. Quite L.Ed.2d 123 S.Ct. often, case, this as in the objective analysis of reasonableness of the of the prosecutor’s explanation light relevant circumstances in the record is meaningful review of Batson the for only basis ruling.
Finally, today’s makes new law that limits opinion improperly comparative In juror this analysis. appeal, defendant contends that the stated prosecutor’s reasons for two black are striking jurors by undermined comparison to jurors those nonblack seated the the only jurors at time trial already strikes, ruled court but also jurors to nonblack seated trial after court’s “if court holds that defendant the trial rulings. believed court have, should have considered any he could postruling developments, have, not, renewed his Batson/Wheeler claim. Because defendant did should his reliance on after jurors above were responses provided ante, court trial denied his second motion is forfeited.” at (Maj. opn., rule, in Lenix 1319.) p. says, This court follows from our statement “the trial finding court’s is reviewed on record as it at the time the stands Wheeler/Batson is made. If the defendant ruling believes subsequent court, be events should considered objection trial a renewed required (Lenix, to consideration these permit appellate subsequent developments.” supra, 44 Cal.4th at p. dictum because Lenix in Lenix no involved issue this
But statement The forfeiture for consideration. urged appellate “subsequent developments” key holding with with Lenix’s rule is in substantial tension announced today it is for urged when juror analysis consideration regard comparative that Snyder In of the obvious light importance first time on appeal. Lenix said that Miller-El those cases juror analysis, assigned comparative that, third of error at Wheeler/Batson’s for the to claims “stand proposition juror our of declining engage comparative former stage, practice based on time on restricts review unduly for the first analysis appeal Dretke, ‘In Miller-El Snyder, As the court noted in high entire record. a Batson reviewing considering objection, Court made it clear that in all of the circumstances error, be Batson that bear upon claimed ruling (Snyder, [supra, must be consulted.’ animosity U.S.] issue of racial Thus, must [478], added.) juror analysis evidence of comparative italics if relied and even the first time on in the trial court appeal considered *75 the urged to the record is adequate permit the defendant and upon by (Lenix, 622, omitted.) supra, 44 at fn. Cal.4th p. comparisons.” Lenix thus holds that Batson not in a an court is ruling, reviewing appellate consider, the grounds from and indeed must considering, precluded to The essential of defendant did not the trial court’s attention. bring premise review of a Batson this is that is not holding ruling merely appellate the on arguments put exercise in trial court’s based evaluating performance as Lenix and Miller-El Snyder Instead, said, require forth the parties. all relevant to “review engage courts consider circumstances—to appellate a based on the entire record”—in whether the strike of determining particular (Lenix, supra, at If 44 Cal.4th p. jurors motivated. juror improperly attention, a but to the court’s brought seated before trial court’s never ruling, is reason why be then there no juror analysis, must considered comparative if the may only seated after a trial court’s be considered jurors ruling objection. accepted by prosecutor defendant makes a renewed Any juror a whether is basis for in determining a relevant potentially comparison strike was particular discriminatory. I the struck seated after Although agree jurors jurors comparing ante, does not aid the Batson claim in this case (maj. opn.,
trial court’s ruling v. Manibusan People (2013) 58 1321-1322), at In this is not so. always pp. 1], 40 exercised its first peremptory Cal.4th Cal.Rptr.3d prosecution [165 a had a service on against juror only jury strike black female whose prior strike, a the reasons offered jury. resulted in hung Among “ said, rid of T have an absolute of whose policy getting people ” (Id. (conc. at & dis. hung resulted jury.’ p. only jury experience the defendant’s Batson Liu, J.).) But after trial court denied opn. motion, sole experience two whose accepted jurors prosecutor repeatedly it ‘absolute hung policy,’ on a had resulted in a “The jury jury. prosecutor’s (Ibid.) out, turns absolute at all.” Today’s decision us to requires evaluating Batson claim. ignore such relevant circumstances in obviously matter, As a practical court has the bar on put notice that any must reassert all Batson reasonably defense competent attorney challenges selection, the end of even need though counsel not bring any compara- tive to the trial court’s juror analysis attention in order the entire preserve Lenix, supra, (See record for Cal.4th at appeal. [“evidence . . comparative juror analysis must considered . even for the first on time if relied appeal defendant the record upon by adequate permit urged of this result comparisons”].) peculiarity should be tipoff Miller-El, Lenix, is amiss. Under Snyder, something our duty consider a Batson claim does not all relevant circumstances in evaluating depend counsel’s with such an exercise. compliance empty
III.
decision extends this
Today’s
extraordinary
court’s
track record of denying
Batson claims.
People
v. Harris
(See
885,
57 Cal.4th
892-898
Liu,
(conc.
Cal.Rptr.3d
J.)
[161
opn.
[documenting
1195]
of Batson claims in 101
this court’s
rejection
out
102 cases
presenting
decades,
People
Silva
issue over the
two
with
past
Prospective 30-year over career into a technical in which she trained others. She had twice job served on a that reached jury a verdict. She said would she consider repeatedly evidence, others, would her mind and speak willing listen and would vote for death case. J.S. to be a penalty appropriate appeared no less than well-qualified juror, several white whom the qualified jurors In this prosecutor retrial of black man convicted of accepted. penalty victim, murdering white in which it is that the first undisputed penalty death, with two jury hung black women to vote phase refusing strike J.S. was not prosecutor’s credibly explained by reasons state, gave. Under laws of this defendant well deserve may the death reasonable But the one penalty eyes must be jury. selected free discrimination. improper convictions. defendant’s affirming opinion of the court’s
I the portion join verdict. of the penalty court’s affirmance from the dissent IBut respectfully notes district court noted that some for using peremptory.” not racial reason on a hung who had served juror exclude automatically prospective attorneys bias facie showing group make a defendant failed to prima It found jury. reasons her place the opportunity and offered the prosecutor the record. challenge